Delhi District Court
State vs Bittoo Kumar Pandey on 23 November, 2011
ID No. 02403R0119102010
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No. 117/2010
Unique ID No. 02403R0119102010
FIR No. 01/10
PS : Sangam Vihar
U/s. 304/34 IPC
State
Versus
Bittoo Kumar Pandey
S/o Late Sh. Vijay Pandey,
R/o I4. 220, Sangam Vihar
New Delhi. ...... Accused
Instituted on : 19th October,2010
Arguments heard on : 23rd November,2011
Judgment pronounced on : 23rd November,2011
J U D G M E N T
The accused in this case has been charged for commission of an offence punishable u/s 304/34 Indian Penal Code.
Briefly stated, the case of prosecution is that at about 08:54am on 01.01.2010 Head Constable Amar Chand received a call that a person was lying 'unconscious' near Gali No. 19, IBlock, Sangam Vihar. The information was recorded as DD No.4A. Assistant SubInspector Pritam Singh along with Constable Hukma Ram reached at the spot i.e Ratia Marg, IBlock, Sangam Vihar in the jungle and met Dinesh, the informant. Kunal Kumar (deceased) was found unconscious and twothree other persons were found present there. In the meantime, Rahul, brother of injured and PCR Van also reached there. All of them except Constable Hukma Ram went to Trauma Center and Kunal Kumar was ID No. 02403R0119102010 admitted in the hospital. Assistant SubInspector Pritam Singh obtained MLC of deceased. In the meantime, Inspector J. D. Meena alongwith Constable M. R. Meena reached at the spot, where they come to know that injured had been shifted to Trauma Center. Assistant SubInspector Preetam Singh handed over MLC, DD Entry No. 4A and articles i.e. two Icards of deceased alongwith Rs.85/, one telephone diary with mobile phone instrument found at the spot to IO/Inspector J. D. Meena who along with Assistant SubInspector Preetam Singh returned back to the spot. IO/Inspector J. D. Meena prepared rukka and sent Constable Hukma Ram to the Police Station for registration of case. Crime team was called at the spot and photographs were taken. IO/Inspector J.D. Meena inspected the spot. On 02.01.2010 postmortem of deceased was conducted by Dr. R. P. Singh who opined "exact cause of death could not be ascertained in this case. However, death could have been possibly caused by combined effect of the injuries in a case of hypothermia". On 06.01.2010, IO arrested accused and recorded his disclosure statement. Accused was medically examined. On completion of investigation, charge sheet was filed in the Court. Learned Metropolitan Magistrate committed the case to the court of sessions on 27.04.2010. Charges for the offences u/s 304/34 IPC were framed on 15.07.2010. Accused pleaded not guilty and claimed trial.
2. Point which emerged for determination in this case is, whether on the intervening night of 31.12.2009/01.01.2010 in the Jungle near IBlock, Sangam Vihar New Delhi, accused committed culpable homicide not amounting to murder of Kunal Kumar?
3. In order to establish the accusations against the accused, prosecution examined following twenty witnesses.
Medical Evidence 3.1 Doctor R. P. Singh (PW5) conducted postmortem on the dead body of deceased. On general examination, rigor mortis was well developed. Mud and dried leaves were present in space between teeth and lips and in nasal cavity. External and internal injuries described in the Postmortem Report (Ex.PW5/A) are : (i) Multiple ID No. 02403R0119102010 reddish linear abrasion present in left shoulder, lateral aspect of left arm and dorsal aspect of upper part of left forearm based on diffuse reddish contusion the direction of abrasions is in multiple direction, (ii) reddish contusion of size 6 cm x 6 cm present in left cheek, (iii) reddish contusion present over left pinna and left mastord area, (iv) multiple reddish abrasion of size 6 cm x 6 cm present based as reddish contusion on right cheek, (v) multiple reddish abrasion, linear, present in lateral aspect of whole of right upper limb based on reddish contusion, (vi) reddish abrasion of size 5 cm x 3 cm present in lateral aspect of middle of left thigh, (vii) reddish abrasion of size 8 cm x 4 cm present in lateral aspect of right thigh present above knee joint. Opinion was kept pending by PW5 as result of viscera analysis was awaited. On 23.4.2010, PW5 gave opinion regarding cause of death (Ex.PW5/C). He finally opined that the exact cause of death could not be ascertained in this case. However, death could have been possibly caused by the combined effect of the injuries in a case of 'hypothermia'. PW5 admitted that cause of death could not be ascertained as injuries caused upon the deceased were not sufficient to cause death in ordinary cause of nature. He admitted that even after receiving the FSL Report of the deceased, the exact cause of death could not be ascertained. IO stated that that hypothermia was a condition in which the core temperature of the body falls below 34 or 35 degree Celsius which has local as well as systemic effects. He admitted that hypothermia was a local effect of cold upon the tissues resulting from extreme vasoconstriction, and injury of small blood vessels such as arteries, veins. 3.2 Doctor Pramod Saini (PW19) placed on record MLC No.193284 (Ex.PW19/A) dated 01.01.2010 pertaining to injured Kunal Kumar prepared by Doctor Nayay Bhai Gupta. Injuries noted in the MLC are "abrasion on left cheek, B/L (bilateral) Arms and on B/L thigh and left black eyes."
Public witnesses 3.3 Smt. Anju Jha (PW1) landlady of the house where accused was residing. She was presented as a last seen witness. She stated that accused used to study in the tenanted room and she had not seen any other person apart from accused at the tenanted premises on the day of incident. She did not support the case of prosecution and was crossexamined by Learned Addl. PP.
3.4 Sh. Rahul Kumar (PW2) brother of deceased. He reached at the spot on the receipt of information from Dinesh Kumar (PW3), who told him that he had received his number from diary of his brother and inquired about his brother Kunal Kumar. He ID No. 02403R0119102010 made a call to Pankaj, who was roommate of Kunal Kumar and resided at Katwariya Sarai and he directed him to reach at spot immediately. At the spot some police officials, Dinesh and Pankaj met him and Kunal was lying in injured condition, who received injury on forehead near left eye and also found injury on left side of the body on various parts. He received the dead body of his brother Kunal on 02.01.2010 vide (Ex.PW2/A). PW2 deposed that on 31.12.2009, he was present at his office and had received a call from his younger brother Kunal Kumar at about 12:30 noon, who told him that he was going to celebrate party alongwith Abhishek and Bittoo and he told him that Abhishek and Bittoo were his friends. He further deposed that on 31.12.2009 at about 06:00 pm, he made a call to his younger brother Kunal, who received his phone but did not talk to each other on phone and after 1015 seconds, phone of Kunal (deceased) was disconnected. PW2 deposed that his parents told him that Kunal had made a call to his friend who told them that Kunal Kumar went to attend the party alongwith Abhishek and Bitto and therefore, he was assured about the security of his younger brother Kunal Kumar. On 01.01.2010 at aobut 89 am, he received a call from Kinesh Kumar on his mobile phone no. 9250302473. He made suspicion on Bittoo and Abhishek that they may be involved in this incident because last time his younger brother was alongwith them and proceeded to attend a party. In his cross examination, PW2 admitted that in Ara Bhojpur City Bittoo Kumar was their neighbour.
3.5 Sh. Dinesh Kumar (PW3) on 01.01.2010 was going for morning walk in the forest of Sangam Vihar. At about 08.15 AM he saw that a boy was lying there way in the forest and he was crying (Karha raha tha). It was a winter season. He made a call to him but he did not respond. He searched the pocket of the jeans jacket of that person and found a pocket diary on which 'Kunal' was written. Some telephone numbers were written in the telephone diary. He made telephonic call from his mobile phone no. 9811227308 to Rahul who told him that Kunal Kumar is younger brother and had not returned home since yesterday evening. He made a call to police. Police and other witnesses 3.6 Sh. Shishir Malhotra (PW6) Nodal Officer placed on record call detail record (Ex.PW6/A), application form (Ex.PW6/B), Copy of ID proof (Ex.PW6/C) of mobile phone number 9716379029 pertaining to Viteshwar Pandey. 3.7 Sh. Sanjeev Lakra (PW7) Nodal Officer and placed on record certificate (Ex.PW7/A), call detail record (Ex.PW7/B), application form (Ex.PW7/C), Copy of ID ID No. 02403R0119102010 proof (Ex.PW7/D), certificate 65A and B Indian Evidence Act (Ex.PW7/E) of mobile phone number 9310271817 pertaining to Kunal Kumar, brother of deceased. 3.8 Sh. R. K. Singh (PW15) Nodal Officer placed on record call detail record (Ex. PW15/A), ID Proof (Ex. PW15/B and 15/C) and certificate (Ex. PW15/D) u/s 65B of Indian Evidence Act of mobile number 9910766820 pertaining to Sh. Rajesh Kumar Upadhyay.
3.9 Head Constable Kapil Dev (PW4) duty officer registered FIR (Ex.PW4/A) on the basis of rukka (Ex.PW4/B) sent by Inspector J. D. Meena. 3.10 Constable Girdhar Singh (PW8) of Crime Team placed on record 31 photographs of place of occurrence (Ex.PW8/A1 to Ex.PW8/A31) taken by him and negatives (Ex.PW8/B1 to PW8/B31).
3.11 Constable Amar Singh (PW10) special messenger delivered copy of FIR to the Learned MM, Joint CP and Addl. C.P. and thereafter, came back at the PS Sangam Vihar.
3.12 Constable Hukma Ram (PW12) joined the investigation alongwith Assistant SubInspector Preetam Singh.
3.13 SubInspector Mahesh Kuamr (PW11) visited the place of occurrence and prepared scaled site plan (Ex.PW11/A) on 12.02.2010 at the request of Inspector J. D. Meena.
3.14 Constable Meendya Ram Meena (PW14), motor cycle rider. On receipt of DD No. 4A, reached at the spot alongwith IO/Inspector J. D. Meena where Assistant Sub Inspector Preetam Singh and Constable Hukma Ram met them. He placed on record (Ex.PW14/A, Ex.PW14/B and Ex.PW14/C) vide which articles were seized by Inspector J. D. Meena.
3.15 Head constable Amar Chand (PW9) received call on 01.01.2010 that a person was lying unconscious near about Gali No.19, IBlock, towards hills. He reached at Pipal Chowk, Sangam Vihar.
3.16 Constable Narender Singh (PW13) on 29.01.2010 received one sealed pulanda containing blood stained shirt of deceased, two envelopes containing the blood in gauze of deceased sealed with the seal of JPN TC deposited the same with FSL, Rohini vide RC No. 16/21. On 01.02.2010 received one viscera box of deceased along with sample seal vide RC No. 18/21 it was deposited with FSL, Rohini.
ID No. 02403R0119102010 3.17 Constable Ram Avtar (PW16) joined the investigation on 06.01.2010 with Inspector J. D. Meena. He is the witness of arrest memo (Ex.PW16/A), personal search (Ex. PW16/B0 and disclosure statement (Ex.PW16/C) of accused. He placed on record pointing out memo (Ex.PW16/D) of Theka Sharab near C Lal Chowk, LSC, Okhla, Phase II, pointing out memo (Ex.PW16/E) of place from where water pouches and disposable plastic glass were purchased and pointing out memo (Ex.PW16/F) of place where deceased was killed.
3.18 SubInspector Jitender (PW17) Incharge of mobile Crime Team. He placed on record SOC report (Ex.PW17/A).
3.19 Assistant SubInspector (PW18) Investigating Officer and prepared several documents.
3.20 Inspector J. D. Meena (PW19) SHO at PS Sangam Vihar. On receipt of information, he along with staff reached at the spot and prepared several documents. He placed on record DD No.4A (Ex.PW20/A), recorded the statements of witnesses (Ex.PW20/B and Ex.PW20/C). He seized the sealed clothes of deceased vide seizure memo (Ex.PW20/D).
4. On conclusion of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded. Accused pleaded innocence and false implication in this case at the instance of brother of deceased.
5. I have heard submissions advanced by Sh.WasiUrRehman, Learned Additional PP for State and Sh. R. K. Lamba, Learned Defence Counsel and have perused the evidence and material on record carefully.
6. Learned Addl. PP submits that the case is based on circumstantial evidence and the last seen witness Smt.Anju Jha (PW1) proved the residence of accused Bittoo Kumar Pandey and his presence on the relevant day in the locality. Despite her resiling from her earlier statement u/s 161 Cr.P.C, the chain of circumstances is still intact because Sh. Rahul Kumar (PW2), the brother of deceased testified that Kunal Kumar, his brother had told him that he was going to celebrate party alongwith Abhishek & Bittoo and PW2 knew the accused persons as they used to meet the deceased. He submits that the fact that the deceased joined accused persons has been proved by Sh. Rahul Kumar (PW2) and ID No. 02403R0119102010 recovery of water pouches, disposable glasses and three cane of beer, cigarette buds and the pointing out memos prepared at the instance of accused are other relevant circumstances which prove the guilt of the accused. Learned Addl. PP submits that in view of injuries and the opinion as regards cause of death given by the autopsy surgeon, the prosecution has successfully proved the case against the accused persons for the offence punishable u/s 304 IPC beyond doubt.
7. On the other hand, Sh. R. K. Lamba, Learned Counsel for the accused submits that the case of prosecution is that Sh. Dinesh Kumar (PW3) was going for morning walk in the forest of Sangam Vihar at about 08:15am, it was winter season. He saw that a boy was lying near the way in the forest and was crying. He made a call to him but he did not respond. He searched the pocket of the jeans jacket of that person and called Rahul Kumar brother of the deceased. Rahul Kumar told him (PW3) that Kunal Kumar was his younger brother and he also told him that he did not return home since yesterday evening. He tried to talk to Kunal Kumar, but he was not in a position to speak.
8. Learned Counsel submits that the testimony of Sh. Dinesh Kumar (PW3), who reached at the spot shows that Kunal Kumar was alive at that time. He submits that record shows that it was well within the knowledge of Rahul Kumar (PW2) that Kunal Kumar (deceased) had not returned home and his whereabouts were not known to him. The alleged spot where Dinesh Kumar (PW3) saw the injured lying was 500 meter from the residential area. PW3 admitted that the injured was lying near the pagdandi which is commonly used by the people for coming and going. He submits that this fact shows that the alleged place of occurrence was accessible to the people at large. Assistant Sub Inspector Preetam (PW18), first IO, admitted that the pagdandi leads from K Block, Sangam Vihar to Faridabad and pagdandi was used by passerby who go on foot, bicycle and motorcycle and he also noted the marks of motorcycle tyres crossing the said pagdandi. He (PW18) noticed that the place of occurrence was hardly at a distance of about 350 meters from the Gali No.19, IBlock, Sangam Vihar. Learned Counsel submits that Rahul Kumar (PW2), on receipt of ID No. 02403R0119102010 information from Dinesh Kumar (PW3) had made a call to one Pankaj who was room mate of Kunal Kumar, who was residing at Katwaria Sarai. PW2 asked him to reach at the spot immediately. He (PW2) reached at the spot and met the police official, Sh. Dinesh Kumar (PW3) and Pankaj Kumar. He submits that Prosecution has not examined Pankaj Kumar, who is stated to be the room mate of Kunal Kumar (deceased). He could have shown with whom and where Kunal Kumar had gone on 31.12.2009. Rahul Kumar (PW2), stated that at 12:30 AM, on 31.12.2009, Kunal Kumar, his brother (the deceased) had told him that he was going to celebrate party alongwith Abhishek and Bittoo. Sh. Rahul Kumar (PW2) deposed that he suspected that Bittoo and Abhishek may be involved in the incident because last time, his brother was alongwith them and proceeded to attend a party and further Rahul Kumar (PW2) deposed that on 31.12.2009 at about 06:00 pm he made a call to Kunal Kumar, but he was not responding and then, he talked telephonically to his parents who told him that Kunal had made a call to his friend who told his parents that Kunal Kumar went to attend the party alongwith Abhishek and Bittoo. He submits that this evidence is 'hearsay' evidence and is not admissible in the eyes of law. Oral evidence has to be direct and if it is not so, then it is against the rule of best evidence. There is no explanation as to why parents of the deceased themselves were not examined and were not produced in the witness box, if this fact was within the knowledge of parents. He submits that prosecution has totally failed to prove any circumstance against the accused.
9. In "Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622), while dealing with circumstantial evidence, it has been held that onus is on the prosecution to prove that the chain is complete and any infirmity or lacuna in prosecution case cannot be cured by false defence or plea.
10. Legal position is well settled that before conviction could be based on circumstantial evidence the following conditions precedent must be fully established.
ID No. 02403R0119102010 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
11. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the Court.
12. This Court finds merit in the submissions advanced by Learned Defence Counsel. None of the alleged facts are established. This fact that at 12:30 pm, Kunal Kumar (the deceased) had told Rahul Kumar that he was going to celebrate party with Abhishek and Bittoo does not inspires any confidence in view ID No. 02403R0119102010 of the fact that in examination in chief itself, Sh. Rahul Kumar (PW2) deposed that when he told his parents that the call of Kunal Kumar was not being connected, then his parents told him that they had made a call to his friend who told them that Kunal Kumar went to attend a party alongwith Abhishek and Bittoo and therefore, he was assured about the security of his younger brother Kunal Kumar. Who was the friend who informed the parents, has not been explained. The evidence on record shows that till 6:00 pm Rahul Kumar (PW2) was not aware about the whereabouts of his brother Kunal Kumar and he came to know from his parents about the factum of celebration of the party by his brother alongwith Bittoo and Abhishek. Neither the 'parents' who informed him about this fact nor the 'friend' from whom parents had come to know, have appeared in the witness box. There is nothing on record to show that on the day of incident, it was the Birthday of the girlfriend of Abhishek on 31.12.2009 on the occasion of which the alleged party was being celebrated. Moreover, PW2 has deposed that he suspected accused only because he was informed about the celebration of party. Furthermore, this fact that accused celebrated party with the deceased and Abhishek or consumed alcohol is also not proved from the evidence on record. In cross examination, PW1 deposed that she had never seen accused under the influence of liquor. Dinesh Kumar (PW3) deposed that there was no smell of alcohol from the mouth of the victim. Neither the MLC (Ex.PW19/A) nor the postmortem report (Ex.PW5/A) or subsequent opinion after analysis of viscera (Ex.PW5/C) show that victim had consumed alcohol. The postmortem was conducted on the dead body of Kunal Kumar (deceased) at 12:40 pm on 02.01.2010 and time since death is opined as about one day as per the Postmortem report (Ex.PW5/A). As per MLC the injuries sustained by the injured are abrasions and as per the Postmortem report also there are abrasions and contusions. The injuries are 'simple' in nature and were neither likely nor sufficient to cause death of the injured. Doctor R. P. Singh (PW5) failed to give any conclusive opinion about the cause of death of deceased. He categorically deposed that the exact cause of death could not be ascertained as injury sustained ID No. 02403R0119102010 by the deceased were not sufficient to cause death in the ordinary course of nature. Doctor opined that it was a case of 'hypothermia' which is a condition of extreme cold and incident took place on 31.12.2009, which, admittedly was an extremely cold day.
13. There is no evidence on record to establish the fact that accused Bittoo was seen with deceased Kunal Kumar at any time on 31.12.2009 or on 01.01.2010 before he was seen in an injured condition by Dinesh Kumar (PW3). As per the case of prosecution, Smt. Anju Jha (PW1) the landlady of the tenanted premises in which accused was residing had lastly seen accused with Abhishek, she has not supported the case of prosecution. Smt. Anju Jha (PW1) deposed that in the end of December 2009, accused came to the house as usual. She categorically deposed that she had not seen any other person with him on that day. She was cross examined by Learned Addl. PP for the State. In cross examination, PW1 denied the suggestion given by Learned Addl. PP for the State that at 02:00 pm on 31.12.2009, accused had come with his two friends one of which was Abhishek Kumar. PW1 specifically deposed that she had not seen Bittoo Kumar Pandey coming back in room at 07:00 pm PW1, after seeing the photographs of Kunal Kumar (deceased) and Abhishek deposed that she had never seen those persons. Thus, the "last scene" circumstance has not been proved by the prosecution. There is no merit in the contention of Learned Addl. PP for the State that Smt. Anju Jha (PW1) proved the residence of accused and his presence in the locality. Proving the residence of accused or the presence of the accused in the locality is meaningless, as accused was admittedly residing in the same locality i.e. Sangam Vihar. The call details records also does not support the case of prosecution. As per PW6, the Nodal officer, Aircel, the Phone No. 9716379029 belonged to Viteshwar Pandey. IO (PW20) admitted that he had not recorded the statement of Viteshwar Pandey to show that this mobile phone was being used by accused. There is nothing on record to show that mobile phone was being used by the accused. The IO (PW20) admitted that the call detail record does not show any conversation between Kunal Kumar (deceased) and accused ID No. 02403R0119102010 Bittoo Kumar Pandey. There is nothing in the forensic report, which could connect the accused with the offence in any manner.
14. To conclude, on overall appreciation of evidence on record, this Court finds that prosecution has failed to establish that it is a case of culpable homicide and it has further failed to establish any nexus of accused with the offence beyond the shadow of reasonable doubt. Resultantly, accused is acquitted from the charges. File be consigned to record room.
announced in the
open Court on (VINAY KUMAR KHANNA)
23 November, 2011 Additional Sessions Judge04
rd
(SouthEast) Saket/New Delhi
ID No. 02403R0119102010
State vs Bittoo Kumar Pandey
SC No. 117/2010
FIR No. 01/10
PS Sangam Vihar
23.11.2011
Present: Sh. Wasi Ur Rehman Ld. Addl. PP for the State.
Accused on bail with counsel Sh. R. K. Lamba.
Arguments heard. Vide separate order, dictated and announced, accused is acquitted from the charges. The bail bond of accused shall remain valid for a period of six months as required u/s 437A Cr. P. C. File be consigned to Record Room.
(Vinay Kumar Khanna) Additional Sessions Judge 04 (SE) Saket : New Delhi : 23.11.2011