Delhi District Court
In Pulicherla Nagaraju @ Nagaraja Reddy vs . on 15 September, 2017
1 IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE2 NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI Case No. 27655/16 FIR No. 506/14 PS Parsad Nagar U/s 302 IPC State Versus Raj Kumar @ Bachu S/o Sh.Raja Ram, R/o H.No.A90, Baba Faridpuri, West Patel Nagar, Delhi. Date of Institution : 02.02.2015 Date of Judgment : 15.09.2017 JUDGMENT
Raj Kumar @ Bachu (accused) has been facing trial for an offence u/s 302 IPC on the accusation that on the night intervening 04.10.14 and 05.10.14, under Metro Pillar No.133, Central Verge, Pusa Road, in State v. Raj Kumar 2 front of MTNL office, he caused death of Baba, aged 45 years, a rag picker by hitting a heavy stone on his face.
2. Present case was registered on the basis of rukka sent by Inspector Pushp Lata of Police Station Prasad Nagar as by the time, she sent the rukka, no eye witness to the occurrence was available or met her.
3. During investigation Brij Mohan, a rag picker met the Inspector in the evening and made statement that he had witnessed the occurrence leading to the death of Baba. Therein, he also narrated the manner in which occurrence had taken place. He also led the police party to the place from where the weapon of offence was picked up by the accused and the place where Baba was sleeping at the time of occurrence i.e. infliction of injuries on his person by the accused. During investigation, statement of Brij Mohan was also got recorded u/s 164 Cr.P.C.
4. It may be mentioned here that crime team was called to the spot which inspected it, took snaps of State v. Raj Kumar 3 the said place and prepared reports and photographs. Sample of blood of the deceased was collected from the spot, sealed and seized. One blood stained stone was found lying at the spot. It was also sealed and seized. One blood stained bag and towel were also found under the head of the deceased. These were also sealed and seized.
5. On the pointing out of Brij Mohan, accused was apprehended from the footpath at Hanuman Chamberi, Jhandewalan. That is how, he was arrested in this case.
6. Case of prosecution is that the accused got recovered, in pursuance of his disclosure statement, one Tshirt stated to be his own Tshirt which he was wearing at the time of commission of crime, from the bushes on the central verge, in front of Rachna Cinema. This Tshirt had blood stains. So, this was also sealed and seized.
7. Accused was got medically examined. The State v. Raj Kumar 4 dead body was got subjected to autopsy. Blood sample of the accused was collected by the doctor and the sealed parcel containing it was seized by the police. This sample was sent to FSL for analysis. Seven sealed parcels were also sent to FSL for analysis. DNA report was also collected from FSL.
On completion of investigation, challan was put in court.
8. After compliance with provisions of Section 207 Cr.P.C, case came to be committed to Court of Session.
9. Prima facie case having been made out, charge for offence u/s 302 IPC was framed against the accused. Since accused pleaded not guilty, prosecution was called upon to lead evidence.
10. In order to prove its case, prosecution has examined following witnesses: PW1: Inspector Mahesh Kumar PW2: HC Bhoop Singh State v. Raj Kumar 5 PW3: SI Dhan Singh PW4: HC Tara Chand PW5: Brij Mohan eye witness to the occurrence PW6: Dr. Jyoti Barwa PW7: W.Ct.Priyanka PW8: Ct.Kuldeep PW9: Brij Mohan eye witness to the occurrence PW10: HC Bhuwan Chand PW11: SI Prabha PW12: Dr.Manas, PW13: Dr. P.Ranjan, PW14: HC Krishan Pal PW14: SI Pawan Kumar PW15: Inspector Pushp Lata PW16: Ct.Rahul Kumar
11. When examined under section 313 Cr. P.C., the accused denied all the incriminating circumstances appearing in evidence against him. Accused has come up with the following defence plea: "I do not know Brij Mohan. I also did not know the deceased. During those days, I was employed with a Tent House in the area of State v. Raj Kumar 6 Ranjit Nagar. I was not a rag picker. I did not visit the spot on 4.10.14. On 5.10.14 at about 10:30 a.m I was passing in front of BLK Hospital. At that time, one person driving a bike hit the bike against me as a result whereof I suffered injury on my chin. I then sat for some time at the corner of traffic light point near the said hospital. PCR staff came at about 10:45 a.m and took me to PS Prasad Nagar, where I was falsely implicated in this case........................................................... While I was sitting at the corner of traffic light points, I had noticed one dead body lying at a distance of 20 meters.................................. I was carrying Rs.370/. I may mention that police had called 57 rag pickers to the police station and enquired from them if they knew me, but none of them pointed out towards me. They did not know me at all. Ultimately, during the night, those rag pickers were State v. Raj Kumar 7 allowed to leave the police station............ The police provided me a new Tshirt and seized my old shirt after it was got removed from my person...................................... It is correct that sample of my blood was taken by the doctor.............................................. Tshirt Ex.P2 belongs to me. Police had removed it from my person and seized. I do not know about rest of items."
Despite opportunity, the accused opted not to lead any evidence in defence.
12 Arguments heard. File perused.
Ld. Addl. Public Prosecutor submitted that from the statement of PW9 Brij Mohan coupled with the medical evidence, recovery of Tshirt of the accused and the reports received from FSL, prosecution has fully established that it is the accused who did commit murder of 45 years aged rag picker and as such the accused be held guilty for an offence u/s 302 IPC.
On the other hand, Ld. Amicus Curiae has State v. Raj Kumar 8 submitted that no reliance should be placed on the statement of PW Brij Mohan, particularly, when prosecution has failed to prove any motive for the accused to commit the crime and also because it is not case of prosecution that any fight took place between the accused and the deceased within the view of PW Brij Mohan.
Another contention raised by Ld. Amicus Curiae is that it is not believable that accused would have picked up such a heavy stone weighing about 3.5 kgs.in inflicting injuries and further that police did not obtain opinion of the doctor regarding use of this stone in commission of the crime.
13. As regards arrest of the accused, the contention raised by Ld. Amicus Curiae is that he was arrested from a far of place from the place of occurrence and in absence of any witness from the public and as such prosecution version regarding his arrest becomes doubtful. Ld. Amicus Curiae has also submitted that it is unbelievable that after having committed the crime, any offender would opted to sleep nearby particularly when some one is said to have State v. Raj Kumar 9 witnessed him indulging in commission of crime.
So far as recovery of Tshirt at the instance of the accused is concerned, the contention raised by Ld. Amicus Curiae is that same having been made from an open place, and in absence of any witness from the public, possibility of its having been planted, cannot be ruled out.
14. As noticed above, police came into action on receipt of information from the PCR on 05.10.2014 vide DD No.22A recorded at 1.32 that dead body of a male was lying in front of Karol Bagh Metro Station, Pillar No.133, Pusa Road. Recording of DD No.22A has not been disputed.
DD No.22A was assigned to SI PrabhaPW11 who accompanied by PW16 Rahul Kumar reached the spot and found dead body of a male aged 45 years lying on the chabutra of said pillar with injury on the forehead; a stone having stains of blood lying near the grill and a pair of plastic chappal lying near the feet of the dead body.
Inspector Pushp Lata also reached the spot and noticed the dead body and the aforesaid items lying there. Thereupon, the Inspector called the crime team which State v. Raj Kumar 10 inspected the spot and took snaps of the scene of crime.
15. PW3 SI Dhan Singh and PW4 HC Tara Chand have proved inspection at the scene of crime, negatives and photographs of the scene of crime. The Inspection report prepared by crime team is Ex.PW3/A; negatives are Ex.PW4/B (collectively) and their positives are Ex.PW4/A (collectively), statements of both these PWs have gone unchallenged for want of anycross examination.
According to Inspector Pushp Lata, from the spot, she picked up blood from the head of the deceased, turned the same into a parcel which was sealed with her seal bearing impression PK; that she sealed the blood stained stone into a parcel, sealed it with the aforesaid seal; that she also sealed chappal of the deceased into a parcel, sealed it with aforesaid seal; that then she seized all these parcels Mark S1, S2 and S3 vide separate memos Ex.PW11/A to Ex.PW11/C. According to the Inspector, she prepared rukka Ex.PW15/C and sent the same to the police station through Ct. Krishan Pal where upon FIR was registered. FIR is State v. Raj Kumar 11 Ex.PW2/A. Its recording has been duly proved by PW2 HC Bhoop Singh. Statement of PW2 has gone unchallenged for want of any cross examination.
In the rukka, Inspector Pushp Lata has specifically mentioned that neither identity of the dead body could be established nor any eye witness to the occurrence was available.
16. Case of prosecution is that subsequently PW9 Brij Mohan met PW15 Inspector Pushp Lata represented himself to be the eye witness pointing out the place of occurrence which led to recording of his statement and preparation of site plan Ex.PW9/A. It is in the cross examination of this witness (PW15) that for the first time when she reached the spot, persons from public were found present there and she made enquiries from them but could not get any clue regarding the occurrence, those persons included rag pickers. During those days, rag pickers used to sleep at a sufficient distance from the place of occurrence. She denied that rag pickers used to sleep at the place of occurrence, during those days.
17. PW9 Brij Mohan (who was also examined in part as PW5) stated to have met the police in the evening of 5.10.14 and on having seen photographs of the victim identified him to be Baba, then narrated the entire occurrence and also showed to the police the place where Baba was sleeping in the morning on 5.10.14 at about 4:00 a.m and the place from where Raj Kumar accused had picked up big stone and inflicted injury on his person by using said stone.
According to PW9, on that night he had slept on the footpath beneath metro line, Karol Bagh. At about 4:00 a.m when he got up and reached near the footpath just in front of MTNL Office, he saw the accused lifting big stone from the footpath and assaulting Baba (rag picker).
Further, according to PW9 Brij Mohan, when he enquired from the accused as to why he was assaulting Baba, he started running away. Accused fell down. He then asked the accused to stop, but he managed to escape towards Rachna Cinema.
It is true that immediately after the occurrence State v. Raj Kumar 13 PW9 Brij Mohan did not inform the police. He has explained that on seeing the occurrence, he had got perplexed and was afraid of that he might be named for the offence.
It is in his cross examination that the deceased and the accused used to sleep on the footpath under the metro line in front of MTNL Office while he (PW9) used to sleep at a distance from the said place.
It is in the cross examination of PW9 Brij Mohan that the victim and the accused were having good relationship and they used to accompany each other. He denied that at times, the accused had asked him not to pick rags in his area or that due to this a quarrel had taken place between him (PW9) and the accused or that is why he falsely named him.
There is nothing on record to suggest that PW9 Brij Mohan was inimical towards accused or interested in the deceased, so as to falsely implicate the accused, in a serious case like the present one. Even if PW9 did not notice any fight, same does not create any doubt to disbelieve his presence on the given date, time and place State v. Raj Kumar 14 particularly when he also used to sleep at a short distance.
Nothing has been brought in the statement of PW9 Brij Mohan to disbelieve the version narrated by him regarding his presence on given date, time and place, his having witnessed the occurrence and the manner in which it took place and the role played by the accused. Recovery of stone from spot
18. Statement of PW9 Brij Mohan finds corroboration from the other material available on record. Immediately after the occurrence, when police reached there, blood stained stone was found lying near the dead body which is the weapon of offence, used by the accused. PW9, on having seen this stone in court, identified it as the one which the accused had used in inflicting injuries on the person of Baba. Same was exhibited as Ex.P1. Site Plan
19. Rough site plan Ex.PW9/A depicting the place of occurrence was prepared at the pointing out of PW9 Brij Mohan. PW9 has supported the case of the prosecution in this regard as well. This site plan depicts point A and B as State v. Raj Kumar 15 the relevant places pointed out by Brij Mohan.
20. It is significant to note that prosecution got examined PW9 Brij Mohan u/s 164 Cr.P.C. That statement Ex.PW9/G, though not substantive piece of evidence, is a circumstance which lends corroboration to the version narrated by PW9 Brij Mohan regarding his presence on the given date, time and place, the role played by the accused and about the weapon used by him in inflicting the injuries. Therein, also he explained as to why he went away after the accused made his good escape.
Medical Evidence
21. Medical evidence available in the form of autopsy report Ex.PW6/A also lends corroboration to the version narrated by PW9 Brij Mohan. Six injuries were observed on the dead body. In the opinion of the doctor, death of the victim occurred due to craniocerebral damage consequent upon blunt force trauma to the head.
22. PW6 Dr.Jyoti Barwa conducted autopsy on the dead body of Baba (by then unknown male aged 45 years) and submitted report Ex.PW6/A. The doctor observed the State v. Raj Kumar 16 following injuries on the dead body of the said male: External examination
1. Contused lacerated wound, reddish in color, measuring 6 cm x 5.2 cm x 2.5 cm was present on the right side of forehead overlying the right supraorbital ridge, extending from root of nose till the outer end of right eyebrow. The subcutaneous tissues and muscles were exposed with comminuted fracture of the underlying facial bones. Extravasation of blood was present in the surrounding structures; the right orbital region was swollen.
2. Contused lacerated wound, reddish in color, measuring 3.5 cm x 1.5 cm x 0.8 cm was present on the right side of forehead, situated 0.5 cm above and outer to injury no.1. The underlying facial bones showed presence of multiple comminuted fractures; extravasation of blood was present in the State v. Raj Kumar 17 surrounding structures.
3. Contused lacerated wound, reddish in color, measuring 9.5 cm x 3 cm x 0.5 cm was present on the right cheek 2.5 below the right lower eyelid, extending from ala of right nostril to 1.8 cm in front of tragus of right ear. The underlying facial bones showed presence of multiple comminuted fractures;
extravasation of blood was present in the surrounding structures.
4. Contused lacerated wound, reddish in color, measuring 1.1 cm x 1 cm x 0.5 cm was present on the left side of forehead situated just above the outer end of left eyelid.
5. Contused lacerated wound, reddish in color measuring 1.6 cm x 1.2 cm x 0.8 cm was present on the tip of nose. The underlying nasal cartilage was found to be fractured with presence of comminuted fracture of the surrounding facial bones, extravasation of State v. Raj Kumar 18 blood was present. The region surrounding the wound showd presence of/multiple contused abrasions over an area of 6.2 cm x 5.5 cm.
6. Contused abrasion, reddish in color, measuring 3.1 cm x 3 cm was present on the chin in midline; the corresponding buccal mucosa was found to show avulsed laceration exposing the mandible within the oral cavity. Internal Examination A) Head Extravasation of blood was present in the scalp layers in both frontal regions of scalp. The skull showed presence of multiple comminuted fractures of the bones of facial skeleton corresponding to injury no.1, 2, 3 and 5; extravasation of blood was present in the surrounding structures.
Brain weight was 1342 gms, edematous. Sub dural hemorrhage was present on right State v. Raj Kumar 19 frontal, both parietaland right occipital region of brain with associated subarachnoid haemorrhage in the corresponding areas. Multiple hemorrhagic contusions were present in both basitemporal and right occipital lobe."
In the opinion of doctor, death in the present case occurred due to craniocerebral damage consequent upon blunt force trauma to he head. Injury no.1,2, 3 and 5 as mentioned in the detailed PM report were sufficient individually to cause death in the ordinary course of nature. Injury no.1,2,3,4,5 and 6 are sufficient collectively to cause death in the ordinary course of nature. All injuries were antemortem in nature, fresh prior to death in duration and were caused by impact with blunt weapon/object/surface.
It is true that the Investigating Officer did not produce the stone before the doctor to have his opinion about its use in the commission of the crime, but this fact does not adversely affect the case of the prosecution in view of the aforesaid opinion of the doctor that damage to State v. Raj Kumar 20 craniocerebral was result of blunt force trauma.
23. As regards arrest of the accused, according to PW15 Inspector Pushp Lata, on 6.10.14, at about 10:30 pm, when she accompanied by Brij Mohan, eye witness and HC Sadanand reached Jhandewalan near Hanuman Chamberi, the accused was found lying on footpath, Brij Mohan pointed out towards said person to be the offender in this case whereupon the accused was apprehended and he revealed his name as Raj Kumar @ Bachu.
PW15 has proved arrest memo Ex.PW9/B and personal search memo Ex.PW9/C in respect of arrest and personal search of the accused. As per Ex.PW9/B, the accused was arrested from footpath near Hanuman Idol by the side of Jhandewalan metro station. This memo bears attestation of SI Pawan Kumar, HC Sadanand and Brij Mohan, eye witness. Even the personal search memo also bears attestation of all these three witnesses.
PW14 witness to arrest of the accused has supported statement of PW15 on the point of arrest of the accused, at the pointing out of Brij MohanPW who was State v. Raj Kumar 21 accompanying them. According to PW14 SI Pawan Kumar, Brij Mohan had identified the accused on reaching there and not from distance. According to PW15, the place from where the accused was arrested was at a distance of one and half kilometer from the place of occurrence. Further, according to her, the accused was arrested without any secret information.
Before arrest of the accused, pW15 had made enquiries from other rag pickers about movement of the accused, but those rag pickers could not tell her about his movement. It is in her cross examination that many persons were sleeping near the accused at the time he identified and apprehended him but all of them went away. She denied that the accused was not arrested from the said place or that she did not mention the factum of fleeing away of other persons from there in the case diary. She also supported the statement of PW14 SI Pawan Kumar on the point that Brij Mohan had reached near the accused and then identified him.
24. As regards nonjoining of any other witness from State v. Raj Kumar 22 the public, Court does not find any merit in the contention raised by Ld. Amicus Curiae, the reason being that PW9 Brij Mohan is an independent witness, who was with the police and it was at his pointing out that the accused was apprehended. There is nothing on record to disbelieve the testimony of PW9 Brij Mohan.
Recovery of Tshirt
25. Case of prosecution is that the accused made disclosure statement and in pursuance thereof, got recovered Tshirt which was having blood stains from the bushes situated on the central verge of the road in front of Rachna Cinema.
According to PW15, on interrogation, the accused disclosed that at the time of occurrence he was wearing a Tshirt, which got stained with blood and that he had thrown the same at a place near Rachna Cinema and to get the same recovered from there. She has proved disclosure statement of the accused Ex.PW9/E. PW14 SI Pawan Kumar has also stated about disclosure statement of the accused, about its recording and State v. Raj Kumar 23 attestation by him at point B. PW9 Brij Mohan is also a witness to the making of the disclosure statement Ex.PW9/E. He has also proved his attestation on this document at point A. All these three witnesses i.e. PW9, PW14 and PW15 have deposed that the accused led them to the central verge on the road near Rachna Cinema and from amongst the bushes, he got recovered one Tshirt. T.Shirt was also turned into a parcel, sealed and seized vide memo Ex.PW9/F. This memo bears attestation of Brij Mohan, SI Pawan Kumar and HC Sadanand.
Keeping in view the fact that Tshirt was recovered from the bushes, it cannot be said that it was lying at a place open and accessible to public. In the given circumstances, it can safely be said that only the accused knew about the Tshirt lying there and that, he had thrown it there.
26. PW15, in order to rule out possibility of tampering with the case property handed over the seal after use to SI Pawan Kumar. PW14 has supported the case of the State v. Raj Kumar 24 prosecution regarding delivery of seal to him by PW15.
It is case of prosecution that with other material objects, Tshirt was sent to FSL and on analysis it was found that blood stains available on it tallied with blood sample of the deceased.
FSL Report Ex.PA would reveal that on DNA analysis of the blood on gauze of the deceased the alleles from the source of exhibit '5 were accounted in the alleles from the source of exhibit '1' (blood on gauge of deceased). Exhibit '2' (stone), exhibit '3a' (plastic bag), exhibit '4' (Tshirt of accused Rajkumar) & exhibit '6a' (shirt). The alleles from the source of exhibit '7' (blood on gauze of accused Rajkumar) were accounted in the mix alleles from the source of exhibit '4' (Tshirt of accused Rajkumar).
The expert concluded as under: "The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that DNA Profile generated from the source of exhibit '1' (blood on gauge of deceased), exhibit '2' (stone), exhibit State v. Raj Kumar 25 '3a' (plastic bag), exhibit '4' (Tshirt of accused Rajkumar) & exhibit '6a' (shirt) is similar with the DNA Profile from the source of exhibit '5' (blood on gauge of deceased)."
There is nothing on record to suggest that there was any possibility of tampering with the case property/ material exhibits sent to FSL for analysis. As rightly submitted by Ld. Addl. Public Prosecutor, report Ex.PA, as to the DNA analysis can safely be relied on.
As a result, it stands established that it is the accused, who was involved in causing injuries on the person of Baba, rag picket, resulting in his death. Offence committed
27. As regards the offence, from facts proved on record, it stands established that the accused picked up stone from near the place of occurrence and hit Baba (victim) while he was sleeping near the metro pillar on the central verge. But prosecution has not been able to prove any motive in commission of the crime. It appears that the accused all of a sudden, without any premeditation and in State v. Raj Kumar 26 the heat of passion inflicted injuries on the person of Baba, the rag picker.
In the given circumstances, taking into consideration the act done by the accused, it cannot be said that the accused so acted with intent to cause death of Baba or that he inflicted the injuries with intent to cause bodily injury that should be sufficient in the ordinary course of nature to cause death.
In Pulicherla Nagaraju @ Nagaraja Reddy vs. State of Andhra Pradesh 2006 (11) SCC 444, it has been observed by the Hon'ble Supreme Court as under: "Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like State v. Raj Kumar 27 revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/ II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302."
Having regard to the decision in Buddhu Singh and Ors. vs. State of Bihar (Now Jharkhand) (2011) 14 SCC 471 in Pulicherla Nagaraju @ Nagaraja Reddy vs. State of Andhra Pradesh 2006 (11) SCC 444 and Ashok Bind v. State, Crl. Appeal NO.89/10 decided by our own Hon'ble High Court on 20.6.17, Court finds that accused State v. Raj Kumar 28 cannot be held guilty of the commission of culpable homicide amounting to murder punishable u/s 302 IPC. However, prosecution has fully established its case for commission of offence u/s 304 IPC Part II IPC.
28. As a result, accused is held guilty and convicted for the offence u/s 304 Part II IPC.
Be put up after some wait to hear the convict on the point of sentence.
Announced in the open Court on this 15th day of September, 2017 (NARINDER KUMAR) SPECIAL JUDGE2 NDPS ACT (CENTRAL DISTRICT) TIS HAZARI COURT:DELHI State v. Raj Kumar