Delhi District Court
State vs . Deepak @ Deepu on 10 October, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No.124/2013
Unique Case ID No.: 02404R0145852013
State Vs. Deepak @ Deepu
S/o Satpal
R/o Jhuggi No. 365,
Indira JJ Camp, Sector3,
Rohini, Delhi
(Acquitted)
FIR No.: 320/2012
Police Station: South Rohini
Under Section: 304 Indian Penal Code
Date of committal to session court: 31.5.2013
Date on which orders were reserved: 10.10.2013
Date on which judgment pronounced: 10.10.2013
JUDGMENT:
(1) As per the allegations on 27.12.2012 at about 8:30 PM at Shop of Kabari bearing No. 141B, Indira JJ Camp, Sector3, Rohini, Delhi the accused Deepak @ Deepu caused the death of Smt. Bimla W/o Sh. Ram Kishan by giving beatings to her by pushing her on the ground with the intention of causing her death or with the intention of causing such bodily injuries as was likely to cause death of Smt. Bimla.
St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 1 BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 27.12.2012 DD No. 29A was received at Police Station south Rohini on which SI Sunil and Ct.
Dhanraj reached Jhuggi No. 627, Indira JJ Camp, Sector3, Rohini, Delhi where they found the dead body of a lady whose name they later came to know was Bimla W/o Ram Kishan lying in the jhuggi. On inquiry SI Sunil came to know that the body had been brought back from BSA hospital after getting the same checked. One Rahul the grandson (nati) of the deceased and an eye witness to the incident, met SI Sunil and informed him at around 8:30 PM he was passing through the shop of Satpal Kabari when he saw that Satpal was quarreling with some customer on which he stopped for inquiry and thereafter Satpal started quarreling with him asking him why he was standing there and this was objected to by him. He (Rahul) then asked Satpal not to abuse him and there was a verbal altercation when in the meanwhile the son of Satpal namely Deepak @ Deepu came out and caught hold of him (Rahul) from behind his neck and hit him with his hand on the neck. In the meanwhile his nani Bimla (deceased) came there to help him (Rahul) and tried to intervene in the quarrel, on which Deepak @ Deepu pushed Bimla as a result of which she fell down on the ground on her back. Thereafter Rahul and Annu who is the choti nani of Rahul shifted Bimla inside the jhuggi when she (Bimla) started feeling uneasy and requested them to shift her to the hospital on which they all along with one Dilawar, S/o St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 2 Kahrati Lal who is mausa of Rahul shifted Bimla to the BSA Hospital but on the way she expired and was declared brought dead at BSA Hospital. (3) Thereafter the postmortem on the dead body of the deceased was conducted at BSA Hospital. On the basis of the statement of Rahul the present FIR was registered. During investigations on 16.1.2013 pursuant to a secret information the accused Deepak @ Deepu was arrested from the park of Kali Mata Mandir. After completion of investigations charge sheet was filed against the accused Deepak @ Deepu for committing the offence under Section 304 Indian Penal Code. CHARGE:
(4) Charge under Section 304 Indian Penal Code has been settled against the accused Deepak @ Deepu to which he has pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Fifteen Witnesses as under:
Public witnesses:
(6) PW6 Sagar is an eye witness to the incident but has not completely supported the prosecution version and has turned hostile on the role attributed to the accused. He has deposed that on 27.12.2012 at about 8:30 PM, he was at his house and was taking rest when one girl St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 3 came to their house and informed him that Deepu was quarreling with his bua (aunty) namely Smt. Bimla Devi on the road on which he reached near electricity office on the road. According to him, his bua was lying on the ground and Smt. Surekha daughter of Bimla Devi, Surender, Dilawar, and some other neighbourers were present at the place. Witness has further deposed that he along with Surender and Dilawar took her to the BSA hospital in a TSR where the doctor examined her and declared brought dead and thereafter they came back to the house of his bua Smt. Bimla. He has further deposed that police came at the house of his bua Bimla and took the dead body of Smt. Bimla to BSA hospital for postmortem. He has proved that on 28.12.2012, he identified the dead body of his bua Smt. Bimla in the hospital vide his statement Ex.PW6/A and after the postmortem, the dead body of his bua was handed over to them for performing her last rites.
(7) In his cross examination by the Ld. Defence counsel, witness has deposed that he went to BSA Hospital twice. He has admitted that he had not witnessed the incident in the present case and has voluntarily explained that it was Smt. Sulekha who told him that his bua Smt. Bimla was beaten by Deepak @ Deepu. He has has denied the suggestion that Smt. Sulekha never told him the fact that Deepu had beaten Smt. Bimla. (8) PW7 Dilawar has deposed that on 27.12.2012, he was present at his house and Rahul, who is brotherinlaw (saala) of his son Dinesh, came to their house and informed that Deepak @ Deepu had quarreled St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 4 with him on which he (witness) alongwith Surender, Sagar and Rahul went near the jhuggi of Rahul but there was no quarrel. According to him they went to the house of Rahul where Smt. Bimla met them and she told them that she was feeling disturbed (jee ghabra raha hai) on which they took her to BSA hospital. Witness has further deposed that on the way to the hospital, she expired and in the hospital the doctor after examining her, declared her brought dead after which they brought her back to her house. According to the witness, someone called the police at 100 number and police came to her house and took the dead body to BSA hospital. Witness has further deposed that on 28.12.2012, he identified the dead body of Smt. Bimla vide his statement Ex.PW7/A and after the postmortem, her dead body was handed over to them for performing last rites.
(9) In his cross examination by Ld. Defence counsel, witness has deposed that he cannot identify Deepak @ Deepu as he does not know this person and he is not residing in the locality where Deepak @ Deepu reside.
(10) PW8 Rahul is the complainant and also an eye witness to the incident and has turned hostile on the incident. He has deposed that on 27.12.2012, at about 8:008:30 PM, he was sitting near the fire for warming himself (haath sek raha tha) which was burning outside the house of Ram Pal who resides in his neighbourhood, in front of the house of Deepak @ Deepu. According to the witness, Deepak @ Deepu hit him St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 5 with a stone on which he ran away from there and is not aware how his naani Smt. Bimla died. He has correctly identified the accused Deepak @ Deepu in the Court. Witness has further deposed that he reached to the house of his brotherinlaw/ jeeja Dinesh and informed to the parents of his jeeja that Deepu @ Deepak hit him with a stone and he reached at his house where his mother Smt. Sulekha and his two younger sisters were present. According to him, Smt. Bimla Devi was taken to BSA Hospital by Dilawar, Sagar and Surender and he came to know that his naani had expired after which she was brought to their house on which he started weeping.
(11) Since the witness was resiling from his previous statement, hence he was crossexamined by the Ld. Addl. PP for the State wherein the witness has admitted that Satpal is father of accused Deepak @ Deepu who runs a shop of 'kabari'. Witness has denied the suggestion that on that day Satpal was quarreling with (kaha suni) customers or that his statement was recorded by the police which is Ex.PW8/A and has voluntarily explained that Point A does not bear his signature. Witness has further denied the suggestion that he had stated in his statement to the police that when he was standing outside the shop of Satpal who was quarreling with customers, Satpal told him why he was standing here and started abusing him on which he (witness) and at the same time son of Satpal, Deepu came there; that Deepu @ Deepak hit him on his neck with his hand and at the same time, his naani Smt. Bimla Devi came to the St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 6 spot and intervened to save him in which Deepu @ Deepak pushed his naani, resulting his naani fell down to her back (peeth ke bal) on the ground, to whom he and his younger naani (chhoti naani) took her to their house and Smt. Bimla told them that she is feeling uneasy (dil ghabra raha hai) and requested them to take her to the hospital; that his naani Smt. Bimla died due to push/ dhakka given by Deepu @ Deepak; that his true and correct statement was recorded by the police and he put his signature at point X; that his statement Ex.PW8/A had been read over and explained to him and only then he signed at point X wherein he requested for taking proper legal action against Deepak @ Deepu. However, when confronted with his statement Ex.PW8/A the above facts were found mentioned.
(12) He has further denied the suggestion that site plan Ex.PW8/B was prepared at his instance or that he had witnessed the incident of pushing his naani by the accused at outside shop of kabari no.141B, Indra JJ Camp, Sector3, Rohini, Delhi. He has also denied the suggestion that he is deposing falsely being won over by the accused. He has not been cross examined by Ld. Defence counsel, despite opportunity granted.
(13) PW11 Surender has deposed that on 27.12.2012, he had gone to his job at about 9:00 AM and came back at about 6:00 PM and while he was present at his house at about 9:009:30 PM, one girl namely Priya St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 7 aged about 1011 years came to his house and informed to him that her naani Smt. Bimla was not feeling well (tabiyat kharab hai). According to the witness Smt. Bimla (deceased) was his cousin sister and Priya is granddaughter of Smt. Bimla. He has testified that he reached to the house of Bimla where he met Sulekha, Sagar, Dilawar and Annu (younger sister of Smt. Bimla) and they requested him to take Bimla to the hospital on which he alongwith Dilawar and Sagar took Smt. Bimla to the hospital in a TSR but on the way she expired. According to the witness they reached hospital where the doctor after examining her declared brought dead after which they brought the dead body of Smt. Bimla to her house and Dilawar made a call to the police at 100 number on which police reached at the house of Smt. Bimla. The witness has further deposed that on 28.12.2012, the dead body of the deceased was taken to the hospital by the police and the postmortem of the body of deceased was conducted at the hospital after which the dead body was handed over to them for performing her last rites. According to him, Rahul is a son of Smt. Sulekha and police recorded the statement of Rahul vide Ex.PW8/A and Rahul had not signed on Ex.PW8/A in his presence.
(14) Since the witness has found resiling from his previous statement, therefore he was crossexamined by the Ld. Addl. PP for the State, wherein witness has denied the suggestion that statement of Rahul Ex.PW8/A was recorded who signed the same at point X in his presence. The contents of the statement of Rahul which is Ex.PW8/A have been St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 8 read over to the witness who denied the same. He has also denied the suggestion that he is deposing falsely being won over by the accused and the statement Ex.PW8/A was recorded in his presence. This witness was not cross examined by Ld. Defence counsel despite opportunity granted.
(15) PW12 Smt. Annu has deposed that on 27.12.2012 at about 8:158:30 PM, she was present at her house when the sister of Rahul namely Priya came to her house and informed that Deepu was quarreling with Smt. Bimla Devi who was her elder sister. According to her, when she reached at the place where the quarrel took place, no one was present there and she reached the house of Smt. Bimla where she met Smt. Sulekha who alongwith her children were present and Bimla was lying on a cot. The witness has also deposed that Bimla told that she was feeling uneasy (jee ghabra raha hai) and thereafter she alongwith Surender, Sagarand Dilawar took Smt. Bimla to the hospital where doctor informed them that she had been brought dead. Witness has further deposed that the dead body of Bimla was brought to her house and Dilawar made a call to the police at 100 number on which police reached at the house of Rahul and took the dead body of Smt. Bimla to hospital for postmortem where postmortem was conducted on her body. According to the witness, the dead body of Smt. Bimla was handed over to them after postmortem. She has correctly identified the accused Deepak @ Deepu in the Court. According to her, the house of Bimla is situated near to her jhuggi but she St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 9 had not seen any incident of quarrel.
(16) Since the witness was resiling from her previous statement, she was crossexamined by the Ld. Addl. PP for the State wherein she has admitted that police made inquiries from her and recorded her statement which Ex.PW12/A. Witness has admitted that Satpal is father of accused Deepak @ Deepu who runs a shop of 'kabari'. She has also deposed that on 27.12.2012 at about 8:30 PM, she was present at the house of her sister Smt. Bimla and after hearing noise of quarrel, she alongwith Smt. Bimla came out in gali and saw that Satpal was quarreling with Rahul. She has however, denied that she stated in her statement Ex.PW12/A that son of Satpal namely Deepu @ Deepak was quarreling with Rahul, when Smt. Bimla intervened to save Rahul, Deepu @ Deepak pushed her, as a result of which Smt. Bimla fell down on her back (peeth ke bal) on the ground, on which she and Rahul took her to their house; that Bimla died due to push/ dhakka given by Deepu @ Deepak. However, when confronted with her statement Ex.PW12/A the above facts were found so recorded. She has denied the suggestion that her true and correct statement was recorded by the police as to whatever she stated or that her statement Ex.PW12/A has been read over and explained to her. According to the witness, she is illiterate and is unable to read and write. She has denied the suggestion that she is deposing falsely being won over by the accused.
St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 10 (17) In her cross examination by Ld. Defence counsel, witness has admitted that no quarrel took place in her presence between accused Deepak and Rahul. Witness has also admitted that she had not seen accused Deepak pushing Smt. Bimla.
Witness of medical record:
(18) PW15 Dr. Vijay Dhankar has deposed that on 28.12.2012 he was posted as HOD Forensic Medicine and on that day he conducted postmortem on the dead body of Bimla W/o Sh. Ram Kishan, aged about 50 years, female, on the request of SI Sunil Kumar of Police Station South Rohini. According to him the deceased was allegedly injured and fell down in a scuffle between children on 27.12.2012 at about 8:30 PM and later died while being taken to the hospital on the same day at about 9:30 PM. He has proved that on external examination following injuries were found :
1. Contusion 2.5cm x 2cm present on the face over the left side of chin.
2. Abrasion 0.5cm x 0.5cm present over the outer aspect of base of left thumb.
3. Abrasion 0.5cm x 0.5cm present over the outer aspect of base of left index finger.
(19) The witness has further deposed that on internal examination ribs were fractured from second to fourth on the left anterior side and St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 11 sternum was fractured transversely at the manubriosternal joint with minimal effusion of blood and left anterior descending artery was 100% blocked 1.5cm from origin. According to him 70% of the lumen was blocked by atherosclerotic patch and a fresh thrombus was present in the rest of the lumen and Significant patency was present in rest of the segments of the coronary tree and Diaphragm was intact. He has proved having opined that death was due to myocardial ischemia precipitated by assault. According to him all injuries were antemortem, fresh at the time of death and caused by blunt force/surface impact and may be sustained in a scuffle. He has also proved the postmortem examination report which is Ex.PW15/A (running into five pages).
(20) On specific Court Questions the witness has explained that the cause of death was on account of blockage of arteries i.e. 70% was due to natural disease and 30% was due to sudden clot of blood and there was no physical damage to the heart caused due to any external pressure including fracture of the rib case. He has further explained that the fracture to rib 24 can be possible on account of fall on a hard surface and this fracture to the ribs could also possible on account of CPR process carried out in the hospital in order to revive the patient since in the present case the effusion of blood in the area of fracture was minimal and the patient being an 50 years of age the possibility of osteoporosis cannot be ruled out and has voluntarily added that it is St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 12 only his estimation but not confirmation.
(21) In his cross examination by Ld. Defence counsel, witness has admitted that the cause of death in the present case was natural. Police/ official witnesses:
(22) PW1 SI Anil is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has relied upon the Crime Team Report which is Ex.PW1/A. He has been cross examined by the ld. Defence Counsel but nothing much has come out of the same.
(23) PW2 Ct. Manish is also a formal witness being the Crime Team Photographer who has been examined by way of affidavit, which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the photographs which are Ex.PW2/A1 to Ex.PW2/A6 and negatives of the same which are collectively Ex.PW2/B. He has been crossexamined by the ld. Defence Counsel but nothing much has come out of the same.
(24) PW3 Ct. Mahendra is also a formal witness being the Computer Operator who has been examined by way of affidavit, which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having issued the certificate under Section 65B of Indian Evidence Act in respect of the FIR which certificate U/s 65(B) of Indian St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 13 Evidence Act is Ex.PW3/A. He has been crossexamined by the ld.
Defence Counsel but nothing much has come out of the same. (25) PW4 Ct. Parmod is again a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having collected the postmortem report. He has not been cross examined by Ld. Defence Counsel, despite opportunity granted in this regard. (26) PW5 W/HC Kamlesh is a formal witness being the Duty Officer who has been crossexamined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved the DD No. 29A which is Ex.PW5/A. She has also proved the DD No. 10A and 11A, copies of which are Ex.PW5/B and Ex.PW5/C respectively, copy of FIR which is Ex.PW5/D and endorsement on rukka which is Ex.PW5/E by ASI Yashbir Singh. She has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same. (27) PW9 Ct. Dhanraj has deposed that on 27.12.2012 he was posted at Police Station South Rohini and was on duty from 8PM to 8AM on the intervening night of 2728.12.2012. According to the witness, on that day on receipt of DD No. 29A at about 10:25 PM he along with SI Sunil reached at jhuggi No. 627, JJ Camp, Sector 3, Rohini where they found the dead body of a lady whose name they later came to know was Bimla W/o Ram Kishan lying in the jhuggi. He has testified that on St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 14 inquiry by SI Sunil they came to know that the body had been brought from BSA Hospital where Bimla was taken for treatment. According to the witness, SI Sunil then called the crime team and got the photographs taken. Witness has further deposed that SI Sunil interrogated one Rahul who claimed himself to be grandson (nathi) of the deceased and an eye witness to a quarrel which had taken place in which the deceased had sustained injuries and had expired but thereafter they had taken her to BSA hospital where she was declared brought dead and thereafter brought her back. The witness has testified that thereafter SI Sunil recorded the statement of Rahul and the body was shifted to BSA Hospital where the postmortem was got conducted and after the completion of the postmortem SI Sunil made his endorsement on the statement of Rahul and directed him to take the same to the Police Station for registration of the FIR. He has proved that he took the rukka to the Police Station and handed over the same to Duty Officer who after registration of the FIR handed over to him the copy of FIR and original rukka which he handed over to the SHO Insp. Jai Parkash to whom the investigations were then marked. According to him thereafter he accompanied the SHO to the spot where the SHO/ Investigating Officer prepared the site plan at the instance of Rahul which site plan is Ex.PW8/B and his statement was recorded after which he was relieved. (28) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the house of deceased at about 10:30 PM and St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 15 took the dead body to the hospital and reached there very late but he does not remember the exact time. According to the witness, the postmortem was conducted prior to registration of the FIR. Witness has denied the suggestion that the accused has been falsely implicated after manipulating a false story and that is why the postmortem was conducted prior to registration of the FIR. According to him Investigating Officer did not record the statement of any other person in his presence except Rahul who only expressed his suspicion on Deepu. Witness has denied the suggestion that Rahul did not express his suspicion on Deepu or that the statement of Rahul was manipulated and fabricated later after the postmortem and that is why the FIR was got registered much later in order to work out the present case by falsely implicating Deepu. (29) PW10 Ct. Manoj, has deposed that on 16.01.2013 he was posted at Police Station South Rohini and was on duty from morning 8AM onwards and joined the investigations in the present case along with SHO Inspector Jai Parkash. According to him at around 9AM he along with Insp. Jai Parkash left the police station and went to the jhuggies at Indira Camp, JJ colony, Sector 3 Rohini where a secret informer informed the Investigating Officer that Deepak was available behind the Kali Mata Mandir on which they reached behind the Kali Mata Mandir where on the pointing out of the secret informer Investigating Officer apprehended one person sitting in the park who on interrogation confirmed his name as Deepak @ Deepu S/o Satpal, R/o jhuggie No. 365, Indira JJ camp, St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 16 Sector 3, Rohini. Witness has further deposed that thereafter the accused was brought to the Police Station where he was interrogated by the Investigating Officer who then arrested him vide memo Ex.PW10/A, conducted his personal search vide memo Ex.PW10/B and information regarding his arrest was given to his father Satpal. He has identified the accused Deepak @ Deepu in the Court.
(30) Leading questions were put to the witness by Ld. Addl. PP for the State wherein the witness has admitted that the information regarding arrest of the accused was given to his mother namely Usha by him after he went to the jhuggie cluster. He does not recollect if the disclosure statement of the accused was also recorded by the Investigating Officer vide Ex.PW10/C but he admits his signatures on Ex.PW10/C at point A. The witness has further admitted that the accused had also pointed out the place of incident vide pointing out memo Ex.PW10/D. (31) In his cross examination by Ld. Defence counsel, witness has deposed that he did not make a separate departure while leaving with the Investigating Officer nor he made his separate wapsi /arrival. According to him they remained in the jhuggi cluster for about 1015 minutes and the secret informer was roaming around in the jhuggi cluster. According to the witness, they reached kali mata mandir at about 9:15 AM. He has explained that the distance between the jhuggie cluster and the Police Station is about 500700 meters. According to him, the Investigating Officer had prepared the site plan of the spot from where the accused was St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 17 apprehended. However, there is no such site plan of the place from the accused was arrested. He has testified that all the documents relating to the arrest, personal search, disclosure were prepared by the Investigating Officer in the police station. According to the witness, he along with the Investigating Officer were in uniform at that time and large number of persons had gathered in the jhuggie cluster but the Investigating Officer did not join any person in the investigations when the accused led them to the place of incident. He has further deposed that the pointing out memo was prepared at the spot itself but he does not recollect if any public person had also signed the same. Witness has denied the suggestion that all documentation was done in the police station and he only signed the same on the asking of the senior officers or that the accused had himself surrendered in the Police Station on account of the illegal pressure exerted upon his family.
(32) PW13 SI Sunil Kumar has deposed that on 27.12.2012 he was posted at Police Station South Rohini and was on duty from 8PM to 8AM on the intervening night of 2728.12.2012. According to the witness, on that day on receipt of DD No. 29A which is Ex.PW5/A at about 10:25 PM he along with Ct. Dhanraj reached at jhuggie No. 627, JJ Camp, Sector 3, Rohini where they found the dead body of a lady whose name they later came to know was Bimla W/o Ram Kishan lying in the jhuggie. He has testified that on inquiry he came to know that the body had been brought back from BSA hospital after getting the same checked St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 18 after which called the crime team and got the scene of crime photographed. Witness has further deposed that large number of public persons were present there and he interrogated them and met one Rahul who claimed himself to be grandson (nathi) of the deceased and an eye witness to the incident. The witness has also deposed that Rahul informed him that at around 8:30 PM he was passing through the shop of Satpal Kabari when he saw that Satpal was quarreling with some customer on which he stopped for inquiry and thereafter Satpal started quarreling with him asking him why he was standing there. Witness has further deposed that Rahul also informed him that this was objected to by him and asked Satpal not to abuse him and in the meanwhile the son of Satpal namely Deepak @ Deepu came out and caught hold of him (Rahul) from behind his neck and hit him with his hand on the neck and in the meanwhile his nani Bimla (deceased) came there to help Rahul and tried to intervene in the quarrel, on which Deepak @ Deepu pushed Bimla as a result of which she fell down on the ground on her back. Thereafter Rahul and Annu who is the choti nani of Rahul shifted Bimla inside the jhuggie and in the meanwhile Bimla started feeling uneasy and requested them to shift her to the hospital. Thereafter they all along with one Dilawar, S/o Kahrati Lal who is mausa of Rahul shifted Bimla to the BSA Hospital but on the way she expired and was declared brought dead at BSA hospital. Witness has further deposed that Rahul also told him that thereafter they brought back the body of Bimla to the jhuggie and St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 19 informed the police. The witness has proved having recorded the statement of Rahul vide Ex.PW8/A and having shifted the dead body of Bimla to the hospital along with Ct. Dhanraj and deposited the same in the mortuary. The witness has also proved having made a request for preserving the dead body for 72 hours vide application Ex.PW13/A after which they returned to the police station.
(33) Witness has further deposed that on the next day he moved an application to CMO mortuary for conducting the postmortem on the dead body of the deceased vide application Ex.PW13/B (running into three pages) and after the identification of the dead body by the relatives of the deceased vide Ex.PW6/A and Ex.PW7/A, the postmortem on the body of the deceased was got conducted after which the dead body was handed over to the relatives of the deceased and doctor verbally informed him that Bimla suffered heart attack on account of jhagra/quarrel. The witness has further deposed that he then prepared a tehrir by making his endorsement on the statement of Rahul vide Ex.PW13/C and handed it over to Ct. Dhanraj with the directions to take the same to the Police Station for registration of the FIR. According to the witness, after registration of the FIR further investigation were handed over to Inspector Jai Parkash who prepared the site plan at the instance of Rahul which site plan is Ex.PW8/B and he then returned to the Police Station where his statement was recorded and he was relieved.
St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 20 (34) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the house of deceased at about 10:30 PM and took the dead body to the hospital at around 11:30 PM and postmortem was conducted prior to registration of the FIR. He has denied the suggestion that the accused has been falsely implicated after manipulating a false story on account of public pressure and that is why the postmortem was conducted prior to registration of the FIR. Witness has further deposed that he did not record the statement of any other person in except Rahul. He has denied the suggestion that Rahul did not name Deepak @ Deepu in his statement or that the statement of Rahul was manipulated and fabricated later after the postmortem and that is why the FIR was got registered much later in order to work out the present case by falsely implicated Deepak @ Deepu.
(35) PW14 Inspector Jai Prakash is the Investigating Officer of the present case who has deposed that on 28.12.2012, he was posted at SHO, Police Station South Rohini and on that day, at about 4:00 PM, he received copy of FIR Ex.PW5/A and original rukka for further investigation. According to the witness, he alongwith Ct. Dhan Raj reached at shop of kabari No.141B Indra JJ Camp, Sector3, Rohini, Delhi where he met SI Sunil and complainant Rahul and SI Sunil briefed him about the case after which he prepared the site plan Ex.PW8/B at the instance of complainant. Witness has further deposed that he recorded statement of witness Smt. Anu, Dilawar, Surender, Sagar, SI Sunil, Ct. St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 21 Dhan Raj, Ct. Manish U/s 161 Cr.P.C. and also recorded supplementary statement of complainant Rahul. He has testified that on 04.01.2013 he collected the postmortem report of the deceased Smt. Bimla from BSA Hospital and placed the same on record. Witness has further deposed that on 16.01.2013 he alongwith Ct. Manoj went in search of the accused Deepak @ Deepu and when they reached at Indra Camp Jhuggi, one secret informer informed that accused could be apprehended from near Kali Mata Mandir, Sector 3, Rohini on which they went near Kali Mata Mandir and at the pointing out of secret informer, the accused Deepakwas apprehended by them. According to the witness, he requested public persons to join the proceedings but they refused and went away after giving excuses. He has proved having interrogated the accused and arrested him vide memo Ex.PW10/A, conducted his personal search vide memo Ex.PW10/B and recorded his disclosure statement vide Ex.PW10/C. He has testified that thereafter the accused lead them to the place of occurrence and pointed out the same vide pointing out memo Ex.PW10/D. According to the witness the accused was got medically examined and produced in the court and from there he was sent to Judicial Custody. He has proved having recorded the statement of Ct. Manoj and Incharge Crime Team SI Anil after which he prepared charge sheet and filed the same in the court. He has correctly identified the accused Deepak @ Deepu in the court.
(36) In his cross examination by Ld. Defence counsel, witness has St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 22 admitted that the place of incident and place of arrest of accused are thickly populated area surrounded by jhuggies. He has also admitted that no notice was given to any public person who refused to join the investigations. He has denied the suggestion that the accused was not arrested in the manner as deposed by him or that he had recorded the statement of public witnesses of his own. The witness has also denied the suggestion that the accused was forced to sign the disclosure statement and pointing out memo or that the accused has been falsely implicated in this case under the pressure of the public persons from Jhuggi Jhopri cluster who were aggrieved with the death of Smt. Bimla. STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(37) It is evident from the record that all the material eye witnesses including the complainant Rohit have not supported the prosecution version and have turned hostile. The medical record and evidence also proves that the death of the deceased was natural. There is no incriminating material on record as against the accused and therefore, under the given circumstances the statement of the accused under Section 313 Cr.P.c. has been dispensed with, there being no material which could have been put to the accused.
FINDINGS:
(38) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. Firstly in so far as St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 23 the ocular / eye witness count is concerned, I may observe that all the material eye witnesses of the prosecution including the complainant Rahul have turned hostile and have not supported the prosecution version.
The complainant Rahul (PW8) has only supported the prosecution case to the effect that he was warming himself from the fire burnt outside the house of Ram Pal who resides in his neighbourhood, in front of the house of Deepak @ Deepu. According to the witness, Deepak @ Deepu hit him with a stone on which he ran away from there and is not aware how his naani Smt. Bimla died. He has totally denied the contents of his first statement made to the police and what he has deposed before this Court i.e. regarding accused having hit him with a stone is a new story and does not appear probable because he does not even say that he received any injury when the stone hit him. The other eye witnesses i.e. Sagar (PW6), Dilawar (PW7), Surender (PW11) and Smt. Annu (PW12) have also been declared hostile and have not supported the case of the prosecution. They have identified the accused Deepak @ Deepu as the son of Satpal who runs a Kabari shop in the area and also admit that there was some quarrel but have denied that it was the accused Deepak @ Deepu who had a quarrel with Rahul in which his nani Smt. Bimla (deceased) intervened on which Deepak @ Deepu pushed her as a result of which she fell down on the ground and later expired.
(39) Secondly coming to the medical evidence on record. Dr. Vijay Dhankar (PW15) has proved the postmortem report of the deceased St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 24 and has stated that the cause of death was due to myocardial ischemia precipitated by assault. However, when court questions were put to Dr. Vijay Dhankar he admitted that the cause of death was on account of blockage of arteries i.e. 70% was due to natural disease and 30% was due to sudden clot of blood and there was no physical damage to the heart caused due to any external pressure including fracture of the rib case. He also admitted that the fractures to rib 24 can be possible on account of fall on a hard surface and this fracture to the ribs could also possible on account of CPR process carried out in the hospital in order to revive the patient since in the present case the effusion of blood in the area of fracture was minimal and the patient being an 50 years of age the possibility of osteoporosis cannot be ruled out. In his crossexamination, Dr. Vijay Dhankar has admitted that the cause of death in the present case was Natural. I may observe that this put an end to all the controversies. Though in his earlier opinion given to the Investigating Officer Dr. Vijay Dhankar stated that death was due to myocardial ischemia precipitated by assault but later when crossexamined by the Court of this aspect he has conceded that the cause of death of natural since the Smt. Bimla was already suffering from blockage of arteries to the extent of 70%. Even otherwise, as per the version of the prosecution the deceased had fallen on her back and hence the question of her front ribs being fractured does not arise and apparently the fracture of ribs 24 happened when the CPR process was conducted in the hospital in order to St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 25 revive her.
(40) Lastly in so far as the apprehension and arrest of the accused Deepak @ Deepu is concerned, the same has been duly proved by the police witnesses i.e. Ct. Manoj (PW1) and Inspector Jai Prakash (PW14) and so also not disputed / controverted by the accused. (41) Ld. Addl. PP for the State has vehemently argued that Rohit (PW8) was hit by a stone and therefore, the accused should be held liable for the same. In this regard, I may observe that it is for the first time in the court that Rohit (PW8) had made this statement and is a clear improvement over his earlier versions wherein he had stated that he was caught from behind and given a slap on his neck from behind by the accused Deepak @ Deepu. In the court he does not support his earlier version and takes a totally different stand that the accused Deepak @ Deepu hit him with a stone on which he ran away from there. Had that been so, I am sure Rohit would have received some injuries or would have received treatment for the same, which is not the case. It is apparent that Rohit made this improvement only to provide a reason as to why he ran away from the spot because it is writ large that he has otherwise turned hostile on the role attributed to the accused Deepak @ Deepu and the allegations against him of having pushed Smt. Bimla to the ground resulting into injuries to her. I, therefore, hold that Rohit (PW8) is an unreliable witness and perhaps it is for this reason that even in the charge sheet no such allegations were attributed to the accused nor any charge St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 26 has been framed against the accused in respect of the same. (42) It is evident from the aforesaid that there is no incriminating material on record as against the accused and therefore, under the give circumstances the statement of the accused under Section 313 Cr.P.C. has been dispensed with there being no material which could have been put to the accused.
(43) This being the background, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused. The material brought on record by the prosecution is insufficient so as to hold that the accused Deepak @ Deepu was guilty beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused Deepak @ Deepu. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of the accused.
(44) Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Deepak @ Deepu beyond reasonable doubt and hence, benefit of doubt is being given to him who is acquitted of the charge under Section 304 Indian St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 27 Penal Code. He be released if not required in any other case.
(45) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 10.10.2013 ASJII(NW0/ ROHINI
St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 28
State Vs. Deepak @ Deepu
FIR No. 320/2012
PS South Rohini
10.10.2013
Present: Ld. Addl. PP for the State.
Accused Deepak @ Deepu in JC with Ms. Neelam Singh DLSA Counsel.
PW1 SI Anil, PW2 Ct. Manish, PW3 Ct. Mahendra, PW4 Ct. Parmod, PW5 W/HC Kamlesh, PW6 Sagar, PW7 Dilawar, PW8 Rahul, PW9 Ct. Dhanraj, PW10 Ct. Manoj, PW11 Surender, PW12 Annu, PW13 SI Sunil Kumar, PW14 Inspector Jai Prakash and PW15 Dr. Vijay Dhankar are present, crossexamined and discharged. Prosecution closes its evidence.
It is evident from the record that all the material eye witnesses including the complainant Rohit have not supported the prosecution version and have turned hostile. There is no incriminating material on record as against the accused and therefore, under the give circumstances the statement of the accused under Section 313 Cr.P.c. has been dispensed with, there being no material which could have been put to the accused.
Heard final arguments. Vide my separate detail order dictated and announced in the open court, the accused Deepak @ Deepu has been acquitted of the charge under Section 304 IPC. He be released if not wanted in any other case.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJII(NW)/ 10.10.2013 St. Vs. Deepak @ Deepu, FIR No. 320/12, PS South Rohini Page No. 29