Delhi District Court
Fir No. 480/09; State vs . Raj Kumar Page 1 Of 51 on 26 March, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 229/09
FIR No. 480/09
P.S. Saraswati Vihar
U/S: 302 IPC
STATE
Versus
RAJ KUMAR
s/o Sh. Jeewach Rai
th
r/o E222, 6 Floor,
Shakur Pur, Delhi
Date of Institution: 03122009
Date of arguments: 23032013
Date of judgement: 26032013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 08092009, one unknown person informed in PS Saraswati Vihar through telephone that one person was lying dead on the footpath in front Ring Road, Subhash Place. DD no. 8A was recorded in PS Saraswati Vihar regarding the said information and SI Ranbir Singh along with Ct. Ramraj reached at Subhash Place Ring Road, near FIR No. 480/09; State Vs. Raj Kumar Page 1 of 51 bus stand on the service lane on road going from Britannia to Azad Pur where one person aged 35 years in naked condition was found lying dead having face downwards. His head was towards north side and feet were towards south side and a lot of blood had come out from the nose and mouth of that person and injury marks were visible on the face. One bloodstained Tshirt of red and sky colour in torn condition, one pair of plastic chappals were lying near the dead body. One hawai chappal of black colour was lying at some distance and it was bearing "PASA". In the meantime, one person named Darshan came there and gave his statement. In his statement, Darshan stated that he was resident of Kalyanpuri and used to run rickshaw near Wazirpur and Subhash Place area. Sometimes, he goes to his house in night and sometimes sleeps in the park near Subhash Place. Darshan further stated that on the night of 07/08092009, at about 11 pm when he went to sleep on the footpath near DTC bus stand, Subhash Place, he saw that two drunkard persons were fighting with each other and one of them was beating the other with leg and fist blows and throwing on the patri again and again. He was also hitting on the head of that person with chappal. In the meanwhile, 23 persons intervened and gave some thrashing to the person who was beating and thereafter FIR No. 480/09; State Vs. Raj Kumar Page 2 of 51 they left from there.
2. It is further the case of prosecution that one another rickshaw puller called the person who was giving beating by the name of Raj Kumar and told him to leave from there. While leaving, Raj Kumar removed the pant of the person to whom he was giving beatings and took it with him. The Tshirt of the person who was being beaten had already torn in the fighting. As Raj Kumar was not able to walk properly, he sit in the rickshaw of other rickshaw puller and rickshaw of Raj Kumar was attached with that rickshaw and the person who was given beatings laid down on the patri in naked condition. When the matter was pacified, Darshan also went in the park and slept. In the morning at about 4 am, when police reached there, Darshan woke up and saw that person had died and police made inquiries from him. Crime Team was called at the spot. The dead body could not be identified. Inspector Baljit Singh also reached the spot and FIR u/s 302 IPC was registered. Investigation was handed over to Inspector Ajay Kumar. The dead body was preserved in BJRM hospital. Exhibits were lifted from the spot. On 08092009, accused Raj Kumar was arrested at the instance of informer. Accused Raj Kumar gave disclosure statement that he killed the deceased as he along with his two associates gave him FIR No. 480/09; State Vs. Raj Kumar Page 3 of 51 liquor lacerated with some substance. The pant of deceased, blood stained shirt of accused, one hawai chappal were recovered at the instance of accused from F222, JJ Colony, Shakurpur. The rickshaw owner of Raj Kumar and Ram Prasad who brought the accused in his rickshaw were interrogated who confirmed that accused Raj Kumar was wearing chappal in one foot and his shirt was having blood stains and having one pant. WT message, Hue and Cry Notice were issued, UDBI form and missing person squad was informed. The dead body could not be identified and on 14092009 the dead body was cremated. After completion of investigation, chargesheet was filed in the court u/s 302 IPC.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case, Prosecution examined 17 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Initially, accused opted not to lead defence evidence but later on he moved an application u/s 311 Cr.P.C. to examine himself which was allowed and accused examined himself as DW1.
FIR No. 480/09; State Vs. Raj Kumar Page 4 of 51
5. I have heard Ld. Defence counsel and Ld. APP for State and have perused the entire records.
6. Ld. Defence counsel for accused argued that the deceased was heavily drunk. The liver of the deceased was in diseased condition. The deceased was ill from about 1½ months prior to the incident due to which he became weak. PW2/ Darshan never gave any statement to the police nor he had seen any person giving beatings to the deceased. Even otherwise, PW2 has become hostile. PW2 came to know about death of the deceased when police came in the morning. There was no MLC of the accused which could show that he was drunk at the time of incident. Whereas, PW3 in his crossexamination stated that deceased was drunk. The exact cause of death was not given by the doctor/ PW3. There was no motive on the part of the accused for causing any injury to the deceased. No public witness joined during arrest of the accused except Darshan. There are major contradictions in the testimonies of PWs. All the writing work was done at the PS and nothing was seized from the spot. Even, the police team never visited to the house of the accused, therefore, the IO did not conduct investigation in a proper manner and the same is a defective investigation.
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7. Ld. APP for State argued that the accused and the deceased were quarrelling and the accused was beating the deceased with leg and fist blows and throwing on the patri again and again on the day of incident and even the accused was also hitting on the head of deceased with chappal. After severely beating the deceased, the accused removed his pant and took it with him. The deceased was left by the accused lying on the patri in naked condition. PW2 is the star witness and if some contradictions are there in the examination in chief and crossexamination of PW2, the same is bound to happen since the examination in chief and cross examination of PW2 were conducted after a gap of considerable period. Therefore, testimony of PW2 cannot be discarded in totality since PW2 was very much there at the spot. Strong circumstance leads the indication towards the accused that he committed murder of the deceased. Motive is not required if the case is otherwise proved. If any false plea has been taken in the defence evidence, it also goes against the accused. The accused cannot get benefit of faulty investigation, if any. Even otherwise, if some minor contradictions are there in the testimonies of PWs, the accused also cannot take the benefit of such minor contradictions since they do not go to the root of the case. The Ld. APP for State, in support of FIR No. 480/09; State Vs. Raj Kumar Page 6 of 51 his arguments, relied upon the judgements reported in the case of Abdul Murasalim Vs. State 2005 (84) DRJ 430; Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1) and State of UP Vs. Krishna Master & Ors., 2010 CRI. L.J. 3889.
8. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused had committed the offence as charged or whether he has been falsely implicated. PW1 Manoj Kumar stated that he is photographer and runs a photo studio. On 08.09.2009, at about 5.00 am, he was called in front of DMall at the footpath, Ring Road between the Service Road where SI Ranbir and other police staff met him. A dead body of a fully naked man was lying on the footpath and he was bleeding from nose and mouth. A Tshirt and a plastic chappal of one foot were lying near the body. Another chappal was lying at a little distance from the body. PW1 took eight photographs Ex. PW1/1 to 8 of the body from different angles through a digital camera at the instructions of the IO. He handed over the prints to the IO. He also produced CD of the photographs Exbt. PW1/9. In response to FIR No. 480/09; State Vs. Raj Kumar Page 7 of 51 leading question put up by Ld. APP for State, PW1 stated that a Hawai chappal was also lying near the second plastic chappal. He also stated that there were injury marks on the face of the body. PW1 identified one pair of plastic chappal as Ex. P1 being found on the spot; a black colour Hawai Chappal of left foot on which Pasa was written as Ex. P2 being found on the spot; a TShirt having red and grey stripes in torn condition as Exbt. P3 which was lying at the spot.
9. PW2 Darshan stated in his examination in chief that he is a rickshaw puller. PW2 correctly identified the accused that he is also a rickshaw puller and at about 10:45 pm, he saw the accused giving beatings to another person near the patri outside Wazirpur Depot. Accused gave him fist blows due to which he fell on the patri and his head was broken. Accused and the person who was being beaten were under the influence of alcohol. One driver and a conductor of bus came to intervene in the quarrel and they separated both of them and gave beating to accused. Thereafter, accused left the spot in a rickshaw leaving behind grey (saleti) colour chappal of his one foot. The rickshaw of accused was tochen by the rickshaw on which he went away. The rickshaw puller who took the rickshaw and accused was of the same garage. PW2 FIR No. 480/09; State Vs. Raj Kumar Page 8 of 51 further stated that during the quarrel, accused had torn the Tshirt of that person whom he had given beatings and before leaving, he removed pant of that person and took away his pant. The injured was left naked on the footpath. Tshirt of the injured was thrown on the footpath. PW2 stated that he did not know whether the injured had died. PW2 slept in the nearby park and he came to know about the death of injured next morning at 5 am when the police came there. Police recorded his statement Ex. PW2/A. Police seized a stone having blood on it from the footpath and also seized the torn Tshirt and lifted the chappal of accused from the spot vide seizure memo Ex. PW2/B. The body was removed by the police from the spot. PW2 joined the investigation with the police and went in search of accused. The accused was not found in his room. When PW2 along with police reached in the gali, he identified accused Raj Kumar before the police. The accused was apprehended and he was arrested and personally searched vide memos Ex. PW2/C and PW2/D. PW2 further stated that accused Raj Kumar thereafter got recovered one hawai chappal from his house situated at Sakurpur vide seizure memo Ex. PW2/E. The accused Raj Kumar also got recovered the pant of the deceased which was taken into possession vide seizure memo Ex. PW2/F. FIR No. 480/09; State Vs. Raj Kumar Page 9 of 51
10. During crossexamination conducted by Ld. APP for State, PW2 stated that incident took place on the intervening night of 07/08092009. The accused Raj Kumar while giving kick and fist blows to the deceased was also throwing the deceased on the patri again and again but he denied the suggestion that accused had given beating to deceased by using his chappal. PW2 was confronted with portion A to A of statement Ex. PW2/A. PW2 admitted that accused was giving kick and fist flows to deceased in his stomach and lower portion of his stomach and when deceased had fallen, the accused continued giving kick blows on his stomach several times. PW2 stated that police personnel had lifted the blood from the spot with the help of cotton and kept the same in a plastic dibbi and turned it into a pullanda and sealed with the seal of AK. PW2 further stated that police personnel had lifted the bloodstained stone and stone without blood from the spot and turned it into a pullanda and sealed with the seal of AK. PW2 further stated that police personnel had lifted the Tshirt having red and grey colour blood stains in torn condition and hawai chappal of black colour on which "Pasa" was written from the spot and turned into pullanda and sealed with the seal of AK. PW2 also stated that police personnel had lifted one pair of chappal of plastic and taken into possession FIR No. 480/09; State Vs. Raj Kumar Page 10 of 51 without sealing the same for identification of deceased. The accused Raj Kumar also got recovered his cream colour blood stained shirt along with pant of deceased from behind of a bag kept on the tand of his room. PW2 stated that accused Raj Kumar had also shown the place of occurrence to the police personnel. PW2 also stated that he had forgotten some of the facts due to lapse of time. PW2 also identified the case property i.e. one pair of plastic chappal Ex. P1 being found on the spot; a black colour hawai chappal of left foot Ex. P2 on which Pasa was written being found on the spot; a Tshirt having red and grey strips in a torn condition Ex. P3 being the Tshirt of deceased found on the spot; one hawai chappal of black colour of right foot Ex. P4 on which Pasa was written being recovered at the instance of accused Raj Kumar from his house; one cream colour shirt having the tag of Eagle on its pocket as Ex. P5 being recovered at the instance of accused Raj Kumar from his house and one pant Ex. P6 being the pant of the deceased and recovered at the instance of accused Raj Kumar from his house.
11. PW3 Dr. V. K. Jha, Medical Officer, BJRM Hospital stated in his examination in chief that on 14092009, he conducted postmortem on the body of unknown, aged about 35 years. PW3 FIR No. 480/09; State Vs. Raj Kumar Page 11 of 51 proved the PM report as Ex. PW3/A. PW4 HC Tek Singh proved the DD no. 8A vide Ex. PW4/A; FIR as Ex. PW4/B and endorsement on the rukka as Ex. PW4/C. PW5 Ram Prasad stated in his examination in chief that he pulls rickshaw on rent from the garage of Bindeshwar at Shakur Pur. On 08.09.2009 at about 11.00 pm, he reached near Subhash Place, Ring Road near bus depot on his rickshaw and saw that accused Raj Kumar (correctly identified) who also used to pull rickshaw on rent from the garage of Bindeshwar, was lying unconscious and his rickshaw was lying turtle. Raj Kumar was having a pant on his shoulder. PW5 lifted Raj Kumar and put him in his rickshaw and tochan the rickshaw of Raj Kumar in his rickshaw and took him to the garage of Bindeshwar. Accused was wearing chappal only in one foot. PW5 also identified the case property i.e. a hawai chappal of black colour of right foot Ex. P4 which he had seen the accused Raj Kumar wearing; a shirt Ex. P5 and pant Ex. P6 which he had seen on the shoulder of accused Raj Kumar. During crossexamination by Ld. APP for State, PW5 stated that said person was lying naked. PW5 could not recall whether there was blood on the shirt of the accused. PW5 further stated in his crossexamination by the Ld. APP that later on police came with accused Raj Kumar and he identified him as the same person whom FIR No. 480/09; State Vs. Raj Kumar Page 12 of 51 he had taken to the garage of Bindeshwar in the night. PW5 further stated that incident took place on the night of 7/8.09.2009. He volunteered that it was night intervening Tuesday and Wednesday. PW5 denied the suggestion that he had suppressed the fact of beatings given by the accused to a person to save him as he was his friend.
12. PW6 SI Manohar Lal, Draftsman, on 09102009, on the pointing out of IO, took rough measurements and notes. Thereafter, on 10.10.2009, PW6 prepared scaled site plan Ex. PW6/A on the basis of the said rough notes and measurements and the site plan was handed over to the IO. PW7 Bindeshwar stated in his examination in chief that he runs a cyclerickshaw repair garage at Bihari Chowk, near Tamil School. On the year 2009, he was having 15 rickshaws in his garage and he used to provide the said rickshaws on rent. PW7 stated that accused Raj Kumar was known to him as he used to work in his garage for some period and thereafter he used to provide him rickshaw on hire basis. One Ram Prasad also used to hire rickshaw from him on daily basis. PW7 further stated in his examination in chief that accused Raj Kumar came in his garage sitting on the rickshaw of Ram Prasad and brought his rickshaw by tochan with the rickshaw of Ram Prasad. FIR No. 480/09; State Vs. Raj Kumar Page 13 of 51 Raj Kumar was in a drunken condition and was having injuries on his body at different places. PW7 enquired from Raj Kumar as to how he sustained injuries and he told him that a quarrel had taken place. Accused was wearing sleeper only in one foot and having blood stains on his shirt. On being questioned about the injuries, accused told that he received the injuries in a quarrel. PW7 then came back to his house. Next day, police came at his garage with accused and seized the rickshaw which was given to accused on hire basis vide seizure memo Exbt. PW7/A. During cross examination by Ld. APP for State, PW7 identified the case property i.e. a black colour hawai chappal of right foot as Exbt. P4; a rickshaw Ex. P9 which he had hired to accused Raj Kumar.
13. PW8 Inspector Vipin Kumar Bhatia stated in his examination in chief that on 08.09.2009, he was posted as SHO PS Saraswati Vihar. On 17.09.2009, after registration of the FIR, he took up the investigation and went to BJRM Hospital and collected the postmortem of deceased. On 06.10.2009, PW8 sent the exhibits to Mangol Puri, SGM Hospital through Gajender for histo pathological examination. On 09.10.2009, PW8 got prepared the scaled site plan through SI Manohar Lal, Draftsman. PW8 stated that on 13.10.2009, the exhibits were sent to FSL Rohini through FIR No. 480/09; State Vs. Raj Kumar Page 14 of 51 Constable Yogesh. PW8 further stated that on 14.10.2009, he collected the report of crime team. On 21.12.2009, on receipt of histopathological report, PW8 obtained the final opinion of the doctor regarding the cause of death. On 31.10.2009, PW8 recorded the supplementary statement of Darshan Lal and filed supplementary charge sheet under Section 302 IPC. In August, 2010, PW8 collected the FSL result Ex. PW7/E and PW7/F (Biology Division).
14. PW9 Ct. Ram Raj stated in his examination in chief that during the intervening night of 7/8.09.2009, on receipt of DD no. 8A, he accompanied SI Ranbir Singh to Service Road, Ring Road towards the road Britannia to Azad Pur where dead body of a male person aged about 35 years was lying in a naked condition. The face of the dead body was towards earth and blood was coming out from the nose and mouth of the dead body. One pair of chappal, one Tshirt stained with blood were lying there. Enquiry was made regarding dead body from the public persons present there and one witness Darshan came forward and made statement to the IO. Crime team and photographer were called at the spot. On the basis of statement of Darshan, IO prepared a Rukka and got the FIR registered through PW9. IO lifted blood sample from the spot. One bloodstained stone was also lifted from the spot. One blood FIR No. 480/09; State Vs. Raj Kumar Page 15 of 51 stained Tshirt and one pair of chappal were also seized from the spot. One other chappal was seized from some distance from the dead body. One stone piece without blood was also lifted from the spot. The articles were kept in a plastic polythene and a pullanda was prepared with the seal of AK and it was taken into possession vide seizure memo Exbt. PW2/B. IO tried to make efforts to get the identification of the dead body but the same could not be identified. Thereafter, the dead body was sent to mortuary of BJRM Hospital through PW9 and he deposited the dead body at the mortuary of BJRM Hospital. On 14.09.2009, SI Daya Nand reached BJRM Hospital and postmortem on the body was conducted. After post mortem, SI Daya Nand received three sealed pullandas and sample seal of BJRM Hospital handed over by the doctor and same were seized vide seizure memo Exbt. PW9/A. Thereafter, they came to PS and exhibits were handed over to Inspector Ajay Kumar. PW9 identified one pair of plastic chappal as Ex. P1 being found on the spot; a black colour hawai chappal of left foot Ex. P2 on which Pasa was written being found on the spot; Tshirt having red and grey strips in torn condition as Ex. P3 being the Tshirt of deceased found on the spot; a piece of stone having blood stains Ex. P7 which was seized from the spot; a piece of stone (earth control) Ex. P8 which FIR No. 480/09; State Vs. Raj Kumar Page 16 of 51 was seized from the spot.
15. PW10 Ct. Gajender Singh stated that on 08092009, he delivered the copy of FIR at the residence of DCP, Ld. Metropolitan Magistrate and Joint CP at PHQ as Special Messenger. On 06102009, he took a sealed pullanda from Malkhana and deposited the same at FSL office and handed over receipt of the same to the MHCM. PW11 Ct. Yogesh Kumar stated that on 13102009, he was posted as Ct. at PS Saraswati Vihar and on the directions of IO Inspector Vipin Kumar, he took seven sealed pullandas from the Malkhana and deposited the same at FSL Rohini vide RC no. no. 94/21/09. All the pullandas were having seal of AK except one pullanda which was having seal of BJRM hospital.
16. PW12 SI Ranbir Singh stated in his examination in chief that on 08092009, on receipt of DD no. 8A Ex. PW4/A, he along with Ct. Karambir reached at the spot i.e. Ring Road, Subhash Place where one dead body of a male person was lying on the pavement of the road and his face was towards earth. PW12 informed about the same at PS and Inspector Ajay Kumar along with other police staff reached at the spot. PW12 also joined him in the investigation. Blood sample, cement pieces of the pavement having blood stain marks, one piece of stone without blood and one FIR No. 480/09; State Vs. Raj Kumar Page 17 of 51 Tshirt of red colour which was found at the spot in torn condition, one piece of black slipper, and one pair of slipper which was lying at some distance from the dead body were also seized. Blood lying near dead body was also lifted. IO prepared sealed pullanda of all the exhibits separately and appended seal of AK and prepared seizure memo Ex. PW2/B. PW12 identified one pair of black slipper make Activa as Ex. P1; a slipper of black colour make Pasa as Ex. P2; one blood stained Tshirt having red and grey strips in torn condition as Ex. P3; one blood stained stone piece as Ex. P7 and one stone piece without blood as Ex. P8.
17. During crossexamination conducted by Ld. APP for State, PW12 stated that head of the body was facing in North Direction and its feet were facing the south direction and lot of blood had come from nose and mouth and there were scar marks on the face of the body. PW12 further stated that Tshirt having red and sky blue stripes, one pair of plastic chappals and a little away from them a black colour hawai chappal of single foot was lying on which PASA was written. PW12 stated that in the meanwhile eyewitness Darshan came and met him and gave a statement and he attested the signatures of Darshan on his statement and prepared the rukka Ex. PW12/A and send the same at PS through Ct. Ram Raj for FIR No. 480/09; State Vs. Raj Kumar Page 18 of 51 registration of the FIR. After registration of FIR, Inspector Ajay Kumar came at the spot and he inspected the spot and prepared the site plan at his own. PW12 stated that body could not be identified at the spot and therefore, the same was got preserved at BJRM hospital Mortuary.
18. PW13 HC Ram Charan, MHCM proved entry no. 3873 as Ex. PW13/A; entry no. 3882 as Ex. PW13/B. He also proved the RC no. 89/21 as Ex. PW13/C; RC no. 94/21 as Ex. PW13/D and RC no. 95/21 as Ex. PW13/E. PW14 HC Ramesh Chand stated in his examination in chief that on 08092009, he along with IO Inspector Ajay Kumar went to Subhash Place, in front of DMall where one Darshan met them and informed to IO that he came to know that one rickshaw puller Raj Kumar was residing in FBlock. The police team along with Darshan reached FBlock. The informer told the IO th that one person by the name Raj Kumar was residing in F222, 6 Floor. The police team went to the aforesaid address. From the neighbourhood, the police team came to know that Raj Kumar used th to reside on the 6 Floor of the said premises but he was not found at the given address. The neighbour also informed the police that he had just left his house. The police team reached near maternity Centre, FBlock and one person standing near Maternity Centre on FIR No. 480/09; State Vs. Raj Kumar Page 19 of 51 the road was identified as Raj Kumar (correctly identified) by the informer and Darshan. Accused Raj Kumar was arrested vide memo Ex. PW2/C and his personal search was conducted vide memo Ex. PW2/D. Accused Raj Kumar gave disclosure statement Ex. PW14/A. Accused took the police team to his house and produced his shirt stained with blood, one pant and one chappal. The shirt as well as chappal were seized through sealed pullandas separately. Pant taken into possession. Seizure memo Ex. PW2/E of chappal was prepared. Accused was brought to the place of incident and pointing out memo Ex. PW14/B was prepared at his instance. IO recorded statement of Darshan. Accused took the police team to rickshaw garage at Burari Chowk where IO interrogated the owner of rickshaw garage namely Bindeshwar who told the police that accused Raj Kumar used to take rickshaw on rent from his garage and accused along with one Ram Prasad, also rickshaw puller, came in the night along with his rickshaw and the rickshaw of Raj Kumar. Thereafter, police team went to the house of Ram Parsad at G412, Masalewali gali and he also confirmed the facts as deposed by Bindeshwar. IO recorded statement of Ram Prasad. PW14 identified the half sleeve cream colour shirt as Ex. P5 and pant of dark green colour as Ex. P6 which were recovered FIR No. 480/09; State Vs. Raj Kumar Page 20 of 51 by accused Raj Kumar from his house. PW14 also identified one black colour chappal having mark of Pasa as Ex. P4 which was recovered from the house of accused. In response to leading question put up by Ld. APP for State, PW14 stated that accused told the police that the pant which was produced by him from his house belonged to deceased.
19. PW15 SI Daya Chand stated that on 14092009, he accompanied Inspector Ajay Kumar to BJRM hospital for postmortem of the deceased. After postmortem, three sealed pullandas were handed over to PW15 by the doctor with the seal of FMT BJRM hospital, Delhi along with one sample seal which he handed over to IO who seized the same through seizure memo already Ex. PW9/A. The dead body was handed over to Delhi Wakf Board for its cremation as same was unclaimed. PW16 SI Satpal Singh stated in his examinationinchief that pm on 08092009, he was posted as Incharge, Crime Team, NorthWest District and on receipt of call, he along with Crime Team reached at the place of occurrence at Subhash Place, Ring Road where he found SI Ranvir Singh and SHO along with local police. One dead body of unknown person aged about 35--40 years was lying on the footpath. Blood had already oozed out from his nose in large FIR No. 480/09; State Vs. Raj Kumar Page 21 of 51 quantity. There were blood stain marks at the spot. One Tshirt of red colour was lying near the dead body. One pair of plastic slippers were also lying there. One other chappal was lying at some distance from the dead body with the mark of "PASA". PW16 prepared Crime Team report Ex. PW16/A and handed over same to IO.
20. PW17 Inspector Ajay Kumar stated in his examination in chief that on 08092009, he was posted as Inspector (investigation) at PS Saraswati Vihar and investigation of present case was handed over to him after registration of FIR. PW17 along with Ct. Ramraj reached at the place of occurrence i.e. pavement, Ring Road, Netaji Subhash Place where he saw one dead body of a male person of middle age lying at the aforesaid place. PW17 inspected the spot and prepared site plan Ex. PW17/A. PW17 lifted exhibits from the spot such as blood sample, bloodstained earth control, earth control, one pair of plastic slipper, one bloodstained Tshirt with sleti and red colour and one piece of slipper with the mark of Pasa. All these articles were separately sealed except a pair of plastic slipper with the seal of AK and pullandas were prepared and same were seized through seizure memo Ex. PW2/B. The dead body could not be identified by any public person and FIR No. 480/09; State Vs. Raj Kumar Page 22 of 51 same was shifted to mortuary of BJRM hospital for preservation through Ct. Ramraj. PW17 recorded supplementary statement of complainant Darshan. Thereafter, PW17 along with other police staff including HC Ramesh, HC Suresh went for investigation of the present case as well as in search of accused. When they were present at Subhash Place, PW17 received a secret information that accused wanted in the present case namely Raj Kumar was residing in FBlock, Shakurpur. PW17 along with police staff and informer reached at F222, Shakurpur but Raj Kumar was not present in his rented room. On inquiry, PW17 came to know that he had left his room some time ago. Thereafter, PW17 along with police staff, complainant and informer reached in the area of market FBlock. One boy was seen coming from the road and he was identified by the informer and complainant Darshan when he reached near Sulabh Sauchalaya. He was apprehended and interrogated. Thereafter, he was arrested vide arrest memo Ex. PW3/C and his personal search memo Ex. PW2/D was also prepared. After interrogation, PW17 recorded his disclosure statement Ex. PW14/A.
21. PW17 further stated that thereafter, accused led the police team to his room on the aforesaid place and got recovered one shirt having blood stains marks which he was wearing at the FIR No. 480/09; State Vs. Raj Kumar Page 23 of 51 time of incident as well as one pant of deceased which was concealed by him on the tand. He also got recovered one slipper having mark of Pasa from the room itself. Shirt and slipper were sealed through sealed pullanda but pant was not sealed and seized vide seizure memo Ex. PW2/F. Thereafter, accused took the police team to the place of occurrence and vide pointing out memo Ex. PW14/B prepared at his instance. Thereafter, accused took them to the rickshaw garage of Bindeshwar at Bihari Chowk, Shakurpur and on his pointing out a rickshaw was seized from the garage which he used to run. The rickshaw was taken into possession vide memo Ex. PW7/A. PW17 recorded statement of rickshaw owner namely Bindeshwar who informed the police team that accused Raj Kumar along with Ram Prasad, another rickshaw puller, came to his garage to deposit the rickshaw during intervening night of 07/ 08092009. He also disclosed the address of said Ram Prasad. Thereafter, police team reached at the house of Ram Prasad in GBlock and his statement u/s 161 Cr. P. C. was recorded. PW17 recorded supplementary statement of complainant Darshan and HC Ramesh. PW17 also recorded statement of photographer Manoj and Ct. Rajender (special messenger). PW17 waited for 2--3 days for identification of dead body but it could not be identified. On FIR No. 480/09; State Vs. Raj Kumar Page 24 of 51 14092009, PW17 along with SI Daya Chand went to mortuary and postmortem was got conducted. The dead body was handed over to Delhi Waqf Board for cremation. Dr. handed over some pullandas after postmortem of deceased which PW17 seized through seizure memo Ex. PW9/A. PW17 identified the one pair of plastic chappal as Ex. P1; one left foot chappal with the mark of Pasa Ex. P2 which was seized from the spot; grey and red colour strip Tshirt Ex. P3 which was recovered from the spot; one right foot chappal with the mark of Pasa Ex. P4 which was recovered from the room of accused; one cream colour shirt having mark of eagle on its pocket Ex. P5 which was got recovered by accused from the tand; one pant Ex. P6 which was got recovered by accused from his house belonging to deceased; one bloodstained concrete piece Ex. P7 which was lifted from the spot; one concrete earth control Ex. P8 which was lifted from the spot; one small plastic jar containing some small quantity of dried blood as Ex. P9 which was lifted from the spot; a rickshaw Ex. P9 which was seized in this case.
22. DW1 Raj Kumar stated that on the day of incident, he took one customer from Samrat Cinema and left him in front of Poonam Gas Agency and he was carrying one cylinder. Thereafter, DW1 went to Sulabh Shauchalaya and cleaned his face because he FIR No. 480/09; State Vs. Raj Kumar Page 25 of 51 was feeling unwell. Thereafter, DW1 vomited there and became unconscious and fell down. DW1 could not recall what happened thereafter. DW1 got his conscious back in the morning at about 88.30 am. Thereafter, DW1 went to tea shop and took tea and thereafter went to rickshaw garage and took rickshaw and left garage for his work. When DW1 reached in front of Poonam Gas Agency, 45 police officials arrested him and took him to the PS on the pretext that their officer had called him for some inquiry. In the PS, during the course of inquiry, when police officials were taking his thumb impression on blank paper, he opposed. On his opposition to take thumb impression on blank papers, they beat DW1 and forcefully took his thumb impression on blank papers. Thereafter, 45 police officials beat him badly. When DW1 was unable to bear the pain due to beatings, he requested them that he was having unbearable pain. Thereafter, at about 9 pm, they took DW1 to the hospital at Rani Bagh but he could not recall the name of the hospital. On 8.9.2009, when police officials took him back to the PS after initial treatment, DW1 asked them why they were arresting him and they replied that they would leave him in the morning. Police kept DW1 in the lock up whole night and in the morning they produced him before the Court. DW1 stated that he FIR No. 480/09; State Vs. Raj Kumar Page 26 of 51 did not quarrel with anybody or gave beatings to anybody in the night of 7.9.2009. DW2 did not know what was happening with him till date.
23. It has come in the crossexamination of PWs that PW2 denied the suggestion that he was not present at the spot or was taking rest at his house but even he stated that he was at the spot since one hour prior to the occurrence and PW2 further categorically stated that he was present immediately close to the spot where the incident took place. PW2 further stated that he remained at the spot for about 1520 minutes after the accused was taken away by Ram Prashad. PW2 denied the suggestion that place of incident was used to be in darkness and he volunteered that there was light on the spot as there was a bus depot nearby. The rickshaw pullar who took the accused with him was already standing there. He was standing at a distance of 15 feet from the place of occurrence. Ram Prasad was already standing there when he reached the spot one hour prior to the incident. Ram Prasad remained at the spot till the time when he took the accused with him. The accused came from the side of Prembari pul at the spot. PW2 also stated that he had seen the accused everyday prior to the offence and he was just standing at the spot at the time of incident. PW2 denied the FIR No. 480/09; State Vs. Raj Kumar Page 27 of 51 suggestion that at the time of incident he was drunk.
24. It is pertinent to mention here that chief of PW2 was recorded on 12052010 and his part crossexamination was recorded on 29092010. Remaining crossexamination of PW2 was recorded on 28052011 and PW2 was finally crossexamined on 24082011. Meaning thereby, there is a difference of four months and 17 days between the examination in chief and part cross examination of PW2. Further, there is also difference of 8 months between part crossexamination dated 29092010 and 28052011. Again, there is a difference of about three months between further crossexamination of PW2 from 28052011 and 24082011. In this context, a reliance can be had upon the judgement reported in the case of Abdul Murasalin Vs. State 2005 (84) DRJ 430, therein witness identified the appellants during examination in chief. Cross examination held after a gap of two months but witness did not identify the appellant during crossexamination. The question arose whether the appellant could be acquitted in such situations. It was held by the Hon'ble High Court of Delhi that appellant could not be acquitted as the possibility that the witness was influenced by the appellant in the gap could not be ruled out. Testimony of eyewitness naturally figures most prominently in the judicial search FIR No. 480/09; State Vs. Raj Kumar Page 28 of 51 for truth. Therefore, the conviction can be based on sole testimony of an eyewitness if such testimony is trustworthy. In State Vs. Hazara Singh, AIR 1981 SC 451, it was held that 'substratum of eyewitnesses' testimony cannot be rejected merely on the ground that they are related to the victim or are interested. In the case of Bhaskaran AIR 1988 SC 476, the deceased met with a homicidal death owing to six stab injuries, evidence of the brothers of the deceased who figured as eyewitnesses could not be disbelieved merely because they did not make any attempt to save the deceased from the attack if they were otherwise trustworthy.
25. During crossexamination, PW5 categorically admitted that when he saw the accused, he was unable to walk and was unconscious. PW5 denied the suggestion that accused was not wearing the shirt Exbt. P5. PW5 further denied the suggestion that accused was not carrying the pant Exbt. P6 on his shoulder. PW5 further stated in his crossexamination that he could see the colour of the shirt and the pant at the spot. He reached the garage of Bindeshwar at 11.30 pm. He knew accused Raj Kumar as he used to take rickshaw on hire from the garage of Bindeshwar. PW5 denied the suggestion that he had not seen any person lying naked. 34 other persons were present at the spot when he reached there, FIR No. 480/09; State Vs. Raj Kumar Page 29 of 51 the name of one of them was Darshan but he could not tell the names of the other persons. PW5 denied the suggestion that he had not reached the spot or that he has deposed falsely at the instance of the IO. PW5 also stated in his crossexamination that Raj Kumar was ill from about 11½ months prior to incident. He became weak due to illness. When he lifted Raj Kumar into his rickshaw from Netaji Subhash Place, he was unconscious at that time. He laid down him in his rickshaw.
26. During crossexamination by the Ld. counsel for accused, PW7 stated that when Ram Parsad brought accused Raj Kumar at his garage, accused Raj Kumar was unconscious at that time. Accused was lying in the rickshaw of the Ram Parsad. PW7 helped Ram Prasad to put down Raj Kumar from the rickshaw. During crossexamination by the Ld. counsel for accused, PW8 stated that he visited the place of occurrence on the date of incident in the night, early morning on 08.09.2009 and he directed the IO to carry out investigation and supervise the same. Deceased was lying on the footpath near Ring Road. Darshan Lal from public met him at the spot and he told him that he was the eyewitness regarding the quarrel between deceased and accused Raj Kumar. Darshan Lal also told him that the accused went away with one FIR No. 480/09; State Vs. Raj Kumar Page 30 of 51 person namely Ram Prasad. Darshan Lal informed him that accused is a rickshaw puller and used to ply rickshaw in the said area. Scaled site plan was prepared at his instance and instructions. He recorded the statement of Darshan at the police station. He recorded the statement of MHCM and Constable Gajender on 06.10.2009 and again on 13.10.2009, he recorded the statement of Ct. Yogesh and MHCM. PW8 denied the suggestion that he did not visit the place of occurrence or that he had not conducted the investigation in a proper manner.
27. During crossexamination by the Ld. counsel for accused, PW9 stated that his duty was from 8 pm to 8 am on emergency. IO informed him about the incident as he was on emergency duty with IO. They reached at the spot within 10 minutes on the motorcycle of IO. First, they inspected the person lying at the spot facing his mouth towards the floor. He was lying naked in that condition. Thereafter, PW Darshan came there from nearby place and he made statement to the police. PW9 reached PS at about 7 am and handed over rukka to duty officer for registration of FIR. Exhibits were lifted from the spot after registration of FIR. Crime team inspected the spot and photographer took photographs before he left the spot. FIR No. 480/09; State Vs. Raj Kumar Page 31 of 51 Photographer came in his presence. Inspector Ajay Kumar lifted the exhibits from the spot. The stones were kept in plastic pouches and thereafter converted into pulandas in cloth. The blood was lifted with the help of cotton and kept in small plastic jar. The seal was affixed on the pulandas by the IO. Six pulandas were prepared. PW9 further stated in his crossexamination that it took about one hour in conducting the proceedings of lifting, sealing or preparing pulandas of exhibits. Inspector Baljeet and some beat officials around 1012 constables also reached at the spot. It took about 56 hours in conducting the whole proceedings before he left with the dead body. HC Ramesh was also present at the spot when he was leaving with the dead body. PW9 also stated that the statement of SI Ranbir was also recorded at the spot. PW9 denied the suggestion that IO did not reach at the spot nor lifted any sleeper or any other article from the spot. PW9 also denied the suggestion that Darshan did not give any statement to the police. PW9 denied the suggestion that Darshan did not see anybody giving beating to deceased. PW9 further denied the suggestion that IO obtained signatures of Darshan on blank papers. PW9 stated in his crossexamination that Darshan informed the police that the Tshirt lying near the dead body belonged to deceased.
FIR No. 480/09; State Vs. Raj Kumar Page 32 of 51
28. During crossexamination by the Ld. defence counsel, PW12 stated that his duty hours were 8 p.m. to 8 a.m. He was present near Safeda Picket when DD no. 8 A was received by him. He went to the spot immediately on receipt of DD no. 8A. One Constable from PS came to him and handed over the DD entry at Safeda Picket. He reached the spot at about 4:15 a.m. Nobody was present at the spot. PW12 further stated in his cross examination that his statement was recorded by the IO on the spot in the morning. PCR reached at the spot at the same time when he reached the spot in the morning. Total three persons were present in the PCR. The pavement was of red and cement colour. The word "PASA" was mentioned in English on the slipper. The articles which were lying at the spot were got photographed before lifting the same. The photographer was called at the spot by him from his house through Constable. Some Beat Constables also reached at the spot. There were 3--4 constables at the spot. IO reached at the spot around 6 am accompanied with one Constable. Photographer came at the spot at about 6 am. Photographer took 10--12 photographs at the spot and took 15--20 minutes to take the photographs and thereafter he left the spot. The blood was lifted with the help of cotton. The blood sample was kept in a small FIR No. 480/09; State Vs. Raj Kumar Page 33 of 51 plastic jar. The blood sample was kept at the spot and same was seized through seizure memo which was prepared at the spot and signed by him. Total six articles were lifted i.e. blood, two chappals, shirt, one bloodstained stone and one without blood stain stone. The said articles were sealed by the IO after preparing the pullandas. IO was having the cloth for preparing the pullandas. IO was having the seal with him in his keyring. The articles were sealed at the spot itself. Separate pullandas of articles were prepared. PW12 denied the suggestion that all the writing work was done at the PS or that nothing was seized from the spot or that he did not visit the spot or that he did not participate in the investigation. It took half an hour to Ct. Ram Raj to go the PS and return back after registration of the FIR. The photographs were taken after the registration of the FIR. The articles were also seized after the registration of FIR.
29. During crossexamination, PW14 stated that he was asked by the Duty Officer to reach the spot and on his direction, he reached there. His departure was made by the Duty Officer. He reached at the place of occurrence at around 10:30/ 11 am. Inspector Ajay Kumar, Ct. Ram Raj, SI Ranbir Singh and one public witness Darshan were present at the spot when he reached there. FIR No. 480/09; State Vs. Raj Kumar Page 34 of 51 At around 3:30 pm, they left the spot in search of accused Raj Kumar along with Darshan. They reached Shakarpur around 4 pm. Darshan informed that address of accused Raj Kumar to the IO inspector Ajay Kumar that he is residing in FBlock, Shakarpur.
th Accused was residing on the 6 floor. Perhaps the door of the said house was made of wood. PW14 along with IO and complainant Dasrath reached at the house of accused Raj Kumar. Accused was not found at his house. PW14 volunteered that he met the police team outside his house. When the police team visited his house, the house of accused was closed by kundi. There was no lock on the door. Upon inquiry, they came to know that accused had left the house some time prior. The police team did not search him inside the house after opening the kundi. One or two rooms were th constructed on the 6 floor besides the room of accused. The room th of the accused Raj Kumar was on the right side while going to the 6 floor from the stairs. There was only one room occupied by accused Raj Kumar measuring around 10 x 12 feet. There was some utensils and eatable articles in the said room and rest of the said room was empty. There was no other person residing with accused in the said room. PW14 denied the suggestion that he did not join investigation with the IO or that he did not go to the house of FIR No. 480/09; State Vs. Raj Kumar Page 35 of 51 accused or that accused was arrested in his presence. PW14 further denied that accused Raj Kumar was not arrested from in front of Maternity Centre. PW14 also denied that Raj Kumar had handed over any articles to them. PW14 further denied that all the articles were planted by the police. PW14 also denied the suggestion that nothing was recovered from accused Raj Kumar. During search of accused Raj Kumar, a pocket purse and Rs. 12 were recovered. PW14 denied the suggestion that accused Raj Kumar was not taken to the spot or to his room or to rickshaw garage nor to G Block. Accused after his arrest, was taken to his room from where recovery was effected and thereafter, he was brought to the spot and pointing out memo was prepared at his instance and thereafter, he took the police team to the rickshaw garage. They went to the garage on 08092009 at about 8:30/ 9pm. They reached at GBlock at about 9:30 pm. At GBlock, statement of Ram Prasad was recorded by the IO. They remained at GBlock for half an hour.
30. During crossexamination by the Ld. counsel for accused, PW16 stated that he received information around 4:15 am. They reached there at 4:30 am. SHO, IO and other police staff were present there. When I reached, they were standing. No proceeding FIR No. 480/09; State Vs. Raj Kumar Page 36 of 51 was conducted by them at that time. PW16 inspected the spot and prepared his report and handed over same to IO. PW16 stated that he had seen the chappal by the make of "PASA" at the spot. PW16 denied the suggestion that he never visited the spot or inspected any of the article lying there.
31. During crossexamination by the Ld. counsel for the accused, PW17 stated that the investigation of this case was marked to him at about 7/ 7:30 am and he reached at the spot immediately after receiving the information at about 7:30/ 8:00 am on his motorcycle. Complainant Darshan, SI Ranbir to whom the call was marked, Ct. Ramraj along other police officials were present at the spot when he reached there. Ct. Ramraj accompanied him to the spot as he was already in the PS with the rukka. PW17 further stated in crossexamination that he inspected the spot and prepared site plan and also seized the exhibits. He also stated that pavement at the spot was made of concrete blocks of cement and red colour. He collected the exhibits from near the dead body. Manoj, a public photographer took the photographs of the spot. PW17 lifted the blood with the help of cotton. Exhibit related to blood were kept in plastic jars and sealed in a cloth parcel. One torn Tshirt and hawai chappal were kept in white cloth and FIR No. 480/09; State Vs. Raj Kumar Page 37 of 51 sealed by him and the same were handed over to the constables present at the spot. PW17 stated that it took about 4/5 hours in sealing the exhibits as well as other proceedings conducted at the spot. Ct. Ramraj took the dead body to mortuary. After completing the proceedings at the spot, PW17 returned to PS along with the case property and other police team who were present at the spot. PW17 also recorded statement of SI Ranbir Singh and supplementary statement of PW Darshan at the spot. PW17 reached Shakarpur at about 4 pm. PW17 denied the suggestion that there was tea shop near the place of occurrence or that same is still there. PW17 came to know the name of accused Raj Kumar from the statement of PW Darshan. PW17 along with HC Ramesh and one another Constable left for search of accused from PS at about 3 pm / 3:30 pm. The address of house of accused Raj Kumar was told by the secret informer to him. The room of accused Raj Kumar was situated on sixth floor. There was kundi on the said door. Accused was having possession of only one room. The door of the room of accused was towards left side. The size of room was of about 8 x 12 feet or 10 x 12 feet. There were only household articles including utensils and clothes in the room and there was no bed inside the said room. There was nobody inside the said room FIR No. 480/09; State Vs. Raj Kumar Page 38 of 51 when they reached there. PW Darshan had signed the seizure memos.
32. PW17 further stated in his crossexamination that the secret informer told him about the address of accused. PW17 had briefed the secret informer that a rickshaw puller is involved in the present murder case and also about the incident. PW17 denied the suggestion that secret informer did not give an such information to him or that accused was not involved in any incident of murder. PW17 denied the suggestion that he had neither joined nor conducted any investigation in this case. PW17 further denied the suggestion that accused was not arrested in front of Maternity Centre as deposed. PW17 also denied the suggestion that accused did not handover him any shirt, pant or chappal or the same were planted on him by police. It was denied by PW17 that nothing was recovered from the accused. PW17 also denied the suggestion that accused was not taken at the place of incident nor at the garage of Bindeshwari. PW17 had taken the accused at the garage of... Bindeshwari on 8.9.2009 at about 8:00/ 8:30 pm. PW17 denied the suggestion that he had not visited the house of Ram Parshad nor he had recorded his statement. However, PW17 stated that he had recorded the statement of Ram Parshad between 8:30/ 9:00 pm on FIR No. 480/09; State Vs. Raj Kumar Page 39 of 51 the same day. PW17 further denied the suggestion that he had recorded the statements of witnesses in the PS. No eyewitness except complainant met him during investigation in the morning. PW17 also denied the suggestion that accused did not quarrel nor gave beating to any person. PW17 further denied the suggestion that accused was not present at the place of occurrence. PW17 further stated in his crossexamination that deceased was murdered with the beating of leg and fist blows. PW17 denied the suggestion that Darshan had not made any statement to him or that accused had not made any confessional statement before him. PW17 further denied the suggestion that signatures of accused and PW Darshan were obtained on blank papers by him. PW17 also denied the suggestion that he does not remember the facts as he had not conducted the investigation as deposed by him or that the entire proceedings were conducted at PS.
33. During crossexamination by the Ld. APP, DW1 stated that he was mentally fit on the day when he was produced before Ld. MM on 9.9.2009 by the police officers for the first time. However, DW1 volunteered that he was not physically well on that day. DW1 denied the suggestion that he had not informed the court about beating him by the police, therefore, Ld. MM had not written FIR No. 480/09; State Vs. Raj Kumar Page 40 of 51 about it. Attention of the witness was drawn to the first remand paper dt. 9.9.2009 Ex. DW1/PA where no such fact was mentioned. However, it was objected to by the Ld. counsel for the accused. DW1 admitted in his crossexamination that he knew the prisoners were sending complaints from the jail but he has not sent any complaint regarding above allegations till date. DW1 further admitted in is crossexamination that he knew Bindeshwar whose paddle rickshaw he used to ply and he was not inimical to him but he stated that he did not know any Darshan rickshaw puller. DW1 also admitted that he has not made any complaint regarding his false implication stated by him in his examination in chief to any jail visiting Ld. Judge or visiting lawyers or any NGO etc. DW1 further admitted that he has no enmity with any police official and he has never told to any police official about anything. DW1 further stated in his crossexamination that his wife used to meet him in the jail as well as on the date fixed before the court in this case and his wife had not complained any person or before any forum regarding the above incident. DW1 further admitted in his crossexamination that neither he nor his wife instructed or requested to his counsel to make complaint in this regard since he is unaware of this thing. DW1 denied the suggestion that since he was not beaten up or his FIR No. 480/09; State Vs. Raj Kumar Page 41 of 51 thumb impression etc. were not taken by the police or that is why the doctor did not take that noting on the medical documents. DW1 also denied the suggestion that he has given a tutored evidence in the court or he had killed voluntarily one person (deceased of this case) under the influence of liquor on the pavement near DTC bus Stand, Opposite DMall, Netaji Subhash Place in the intervening night of 7/ 8.09.2009. DW1 further denied the suggestion that no incident of beating with him at the hands of police officials had taken place or that he was forced to put his thumb impression on the papers by the police and for this reason he did not make complaint or got complaints against any of the police officials.
34. Let us examine the legal position whether the ingredients of section 302 IPC are attracted in the facts and circumstances of the present case. Section 299 & 300 IPC deal with the definition of culpable homicide and murder respectively. Section 300 sets out the circumstances when culpable homicide amounts to murder and when it does not amount to murder. Murder is an aggravated form of culpable homicide. The existence of one of the four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder. An offence cannot amount to murder, unless it falls within FIR No. 480/09; State Vs. Raj Kumar Page 42 of 51 the definition of culpable homicide; for this section merely points out the cases in which culpable homicide amounts to murder. But an offence may amount to culpable homicide and yet may not amount to murder. In the leading case of State Vs. Rayavarapu Punnayya AIR 1977 SC 45, the Hon'ble Supreme Court held as under: "It emerges (from the scheme) that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder" on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such a casual connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution brings the case within the ambit of any of the four clauses of the definition of "murder" contained in section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of section 304, Penal Code.
The court further added:
FIR No. 480/09; State Vs. Raj Kumar Page 43 of 51
"The above are only broad guidelines and not castiron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."
35. The learned APP has argued that requisite intention can be gathered from attending circumstances and in this case intention of the accused has been proved by the evidence coupled with testimonies of PWs as discussed above. As per the postmortem report following injuries were found on the person of the deceased:
External Injuries:
1. Abrasion on top of shoulder, left 3 cms x 2 cms;
2. Bruise of size 3 cms x 2 cms over right wrist;
3. Multiple abrasions over left and right elbow inner aspect size varying from 3 cms x 2 cms to 1 cm x .5 cm;
4. Bruise of size 6 cms x 4 cms over left upper abdomen;
PW3 Dr. V. K. Jha, MO, BJRM hospital stated that on internal examination of head, there was subscalp haematoma over right parietooccipital region and there was subarachnoid haemorrhage over right parieto occipital region. On internal FIR No. 480/09; State Vs. Raj Kumar Page 44 of 51 examination of abdomen: abdominal cavity contained blood and blood clots. Liver was cirrhotic of nodular pattern. There was laceration on outer surface of the spleen 1 cm x .5 cm x .5 cm and and its surface was covered with thick film of blood clots. Postmortem findings were consistent with blunt trauma abdomen. After perusal of PM report, blood sample report Ex. PW3/B and histopathological report, PW3 opined cause of death as haemorrhagic shock in a compromised liver and postmortem findings were consistent with blunt trauma abdomen. PW3 also proved the subsequent opinion vide Ex. PW3/C. During cross examination, PW3 denied the suggestion that injuries mentioned in the postmortem report could be sustained due to fall after the accident. PW3 further stated in his crossexamination that there may be about 3,000 reasons for hemorrhagic shock. He however, volunteered that in this case the cause of hemorrhagic shock is laceration of spleen as a result of blunt trauma abdomen.
36. In the case of Ramesh Vs. State of Madhya Pradesh 2009 Criminal Law Journal 3268, the facts were that on the eve of Raksha Bandhan, coconuts were offered to Lord Bajrang Bali by the villagers. Some of the coconuts were eaten by one Shankar Singh. He was admonished by Chowkidar Shri Ram but Shankar Singh FIR No. 480/09; State Vs. Raj Kumar Page 45 of 51 took up a quarrel with Shri Ram and Kamal Singh. The appellant told Kamal Singh that he was behaving like bullie and that he would finish him. When verbal altercation was going on, deceased Kire Singh also reached there and asked the appellant not to quarrel. Appellant while delivering the threat to see them, went to his house and along with two other appellants returned back with lathis and inflicted a lathi blow on the head of Kire Singh because of which he fell unconscious at the spot. Appellant No. 2 and one Chhajju assaulted the deceased with kicks and fists. Kire Singh died next day. The Hon'ble Court found that there was no enmity between the appellants and the deceased and the incident occurred all of a sudden on a very trivial issue of eating four coconuts by Shankar Singh. The Hon'ble Court held that it cannot be said that appellant No. 1 had any intention to commit the murder of Kire Singh or to cause any injury likely to cause his death but at the same time, he can be attributed knowledge that because of causing lathi blow, there is likelihood of death of the deceased which falls within the purview of commission of culpable homicide not amounting to murder, punishable under Section 304 (Part II) of the IPC. Conviction of the appellants under Section 302/34 IPC was set aside and appellant No. 1 was convicted under Section 304 (Part II) FIR No. 480/09; State Vs. Raj Kumar Page 46 of 51 IPC.
37. In the case of Ravindra Shalik Naik & Ors Vs. State of Maharashtra AIR 2009 Supreme Court 1709, during a sudden quarrel a verbal altercation took place between the accused and the deceased. On the intervention by the deceased, accused went to his house nearby and returned back with weapons causing fatal injuries to the deceased. The Hon'ble Court held that accused was entitled to benefit of Explanation 4 to Section 300 and was therefore liable to be convicted under Section 304 (Part I).
38. The facts of the present case are almost similar to the facts of the cases as discussed above. In the present case also, a quarrel had taken place between the accused and the deceased and the accused gave him leg and fist blows and deceased was thrown on the patri again and again and also hitting chappal on the head of deceased which resulted in his death. The fatal injury was not caused by any weapon. If really the accused intended to cause death of the deceased, it was likely that he would have caused much more grievous injuries on the vital parts of the body.
39. Ld. defence counsel for the accused has argued that prosecution has failed to prove motive for the murder. The defence, to my view, cannot dig out any advantage from the fact that motive FIR No. 480/09; State Vs. Raj Kumar Page 47 of 51 has not been proved. No doubt, the court generally tries to asses the motive behind any murder but most often only the perpetrator of crime alone knows as to what circumstances prompted him to certain course of action. Motive is in the mind of accused and can seldom be fathomed with any degree of accuracy. Therefore, absence of motive cannot dislodge the entire prosecution story. In this context, I would place a reliance upon the judgement reported in the case of State of UP Vs. Babu Ram 2000 (II) AD 285, it was held that:
"Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the Prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law. In this context, we would reiterate what this court has said about the value of motive evidence and the consequences of prosecution failing to prove it, in Nathuni Yadav Vs. State of Bihar, [1998 (9) SCC 238] and State of Himachal Pradesh Vs. Jeet Singh [1998 (4 SCC 370)].
Following passage can be quoted from the latter decision:
No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have FIR No. 480/09; State Vs. Raj Kumar Page 48 of 51 been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the Prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the Prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered."
40. It is pertinent to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this context, I would place a reliance upon the judgement reported as Karnel Singh Vs. State of MP, AIR 1995 SC 2472=AIR 2004 SC 1920 it was held that in the case of defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused persons solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
41. In the present case, though there are some contradictions in the testimony of the PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri.L.J. 3889, it was held by the Hon'ble Supreme Court that minor FIR No. 480/09; State Vs. Raj Kumar Page 49 of 51 discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. Ld. Defence counsel argued that no public person except Darshan was joined in the investigation, therefore, in the absence of any independent public witness during investigation, the investigation conducted by the police cannot be believed as trustworthy. Whereas, the Ld. APP for the State argued that generally public persons do not come forward to join investigation in such criminal cases. I am of the view that as far as public witnesses joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. In the present case, PW14 stated that no neighbour of the accused Raj Kumar agreed to become witness. PW17 also stated in his cross examination that the neighbouring people of the locality were standing at some distance but they did not join the proceedings despite request. PW17 denied the suggestion that he did not request any public person to join the proceedings or to obtain their signatures on the seizure memo. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
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42. It is proved on record by the documentary evidence coupled with testimonies of PWs that there was no intention on the part of accused to kill the deceased. That being the position, I am of the considered view that the present case cannot be said to be a case under Section 302 IPC but the accused can be attributed knowledge that on being thrown on the patri, there was likelihood of deceased receiving injuries which could result in his death, and therefore his act falls within the purview of culpable homicide not amounting to murder. It is a trite law that Section 304 (PartII) comes into play when the death is caused by doing an act with the knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. Thus, I hold the accused Raj Kumar guilty and convict him for the offence under Section 304 (Part II) IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 26032013 FIR No. 480/09; State Vs. Raj Kumar Page 51 of 51