Delhi District Court
)Buddhu Singh And Others V. State Of vs Unknown on 23 September, 2016
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IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE2 : NDPS ACT : (CENTRAL
DISTRICT) : TIS HAZARI COURT : DELHI
Case No.
27862/2016
SC No. 100/13
FIR No. 99/13
PS NDRS
U/s 302 IPC
State
v.
Ashok Bind
S/o Ram Nayam
R/o Vill. Katelwa Poorani Basti,
Goura Jai Nagar,
Behraich Devria, U.P.
Date of Institution : 09.09.2013
Date of Judgment : 23.09.2016
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J U D G M E N T
Ashok (accused) has been facing trial for an offence
under Section 302 IPC, on the accusation that on the night
intervening 09/10.06.2013, at about 12.30 midnight, at platform
no.1, in front of SS office, New Delhi Railway Station, he,
committed murder of Uday Kumar, aged 25 years, resident of
Karnataka, by hitting stone on his person.
2. Case of prosecution, in brief, is that Uday Kumar and
his friend Purushottam M.N came to Delhi on 09.06.2013 to take
examination which was being held by DSSSB. After appearing in
the examination, both of them reached platform no.1 for their
return journey. Having bought Platform tickets they entered the
railway station. They were yet to buy traveling ticket. So, they
took seats on a bench in front of SS office at platform no.1. After
sometime, while Uday Kumar went into sleep, his friend
Purushottam remained awake.
At about 12.30 midnight, the accused came there and
insisted to sleep on the bench, where Uday Kumar was already
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asleep. Purushottam did not allow the accused to sleep there.
Thereupon, the accused picked up quarrel with Purushottam.
The accused then went to a nearby gutter, picked up a stone
from there and hit on the head of Uday Kumar, who was in deep
sleep on the bench, resulting in injuries on his head . When
Purushottam made efforts to apprehend the accused, he
attempted to hit him as well. Purushottam raised alarm for help,
which attracted police and led to apprehension of the accused.
PCR van reached and removed Uday Kumar and
Purushottam to Lady Hardinge Hospital , where Uday Kumar
died.
SI Ashok Kumar accompanied by Ct. Ram Kumar
reached the hospital and collected MLC of Uday Kumar. The
patient had been declared unfit to make statement.
PW Purshottam M.N. was found present at the
hospital. He met the Sub Inspector and made his statement.
The Sub Inspector appended endorsement to the statement and
sent rukka to Ct. Ram Kumar. That is how, case was registered.
After registration of case, the constable returned to
the hospital. At that time, the Sub Inspector entrusted to the
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constable dead body of Uday Kumar with directions to get the
same preserved at the mortuary of the hospital.
The Sub Inspector accompanied the eye witness to
platform no.1, in front of SS office, New Delhi Railway Station.
Crime team requisitioned at the spot, inspected the scene of
crime, took photographs of the scene of crime. Incharge of
Mobile Crime Team inspected the scene of crime and prepared
report.
Case of prosecution is that Inspector Meera Sharma
also reached the spot, inspected it and prepared rough site plan
as pointed out by PW Purshottam M.N.
During spot inspection, various material objects
including the weapon of offence were seized. Accused was
arrested. From the spot, one rexine bag of the accused was also
seized. The sealed parcels containing these material objects were
deposited in the Malkhana.
Deadbody was subjected to autopsy, after inquest
proceedings were carried out. After autopsy, dead body was
handed over to the brother of the deceased.
Various material objects were got dispatched to FSL
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for analysis. Reports were received from FSL. On completion of
investigation, challan was put in court.
3. After compliance with the provisions of Section 207
Cr.PC, case was committed to the Court of Session and that is
how, matter came up before this Court.
4. Prima facie case having been made out, charge for an
offence punishable under Section 302 IPC was framed against
the accused. Since, the accused pleaded not guilty, prosecution
was called upon to lead its evidence.
5. In order to prove its case, prosecution has examined
following witnesses:
PW1 Sh. Purshottam M.N.
PW2 HC Hari Om Singh
PW3 Ct. Megh Singh
PW4 HC Har Parshad
PW5 HC Tara Chand
PW6 SI Dhan Singh
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PW7 Chander Pal Harit
PW8 ASI Raj Pal Singh
PW9 HC Hazari Lal
PW10 Nagraj
PW11 Inspector Mahesh Kumar
PW12 Ct. Ram Kumar
PW13 Ct. Mohanan
PW14 HC Ram Parshad
PW15 ASI Arvind Kumar
PW16 Sh. Rajinder Singh
PW17 Ct. Bharat Lal
PW18 Dr. Harvinder
PW19 SI Raghubir Singh
PW20 Ms. Aparna Swami
PW21 SI Ashok Kumar
PW22 Dr. Simmi Kumari
PW23 Dr. Manoj Kumar Hansda
PW24 ACP Meera Sharma
PW25 Ct. Sushil
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6. When examined under Section 313 Cr.PC, the
accused admitted his presence on the given date, time and place
at platform No.1 of New Delhi Railway Station, but denied to
have committed the present crime.
7. Despite opportunity, accused opted not to lead any
evidence in defence.
8. Arguments heard. File perused.
9. Mainstay of prosecution is on the statement of PW1
Mr. Purshottam M.N., friend of Uday Kumar (since deceased).
PROMPT RECORDING OF FIR
10. Occurrence is alleged to have taken place on the
night intervening 09/10.06.2013 at LHMC Hospital. Statement
of eyewitness to the occurrence - Purshottam M.N. came to be
recorded by SI Ashok Kumar at the Railway Station. Said
statement is Ex. PW21/B. It was concluded at about 3.10 AM.
On its basis, FIR came to be registered at 3.25 AM on
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10.06.2013.
According to PW21 SI Ashok Kumar, he received copy of DD No.4A Ex. PW21/A and thereupon accompanied by Ct. Ram Kumar reached Lady Hardinge Hospital. DD No.4A was recorded at PS NDRS at 1.10 AM. As per its contents, one injured had been got admitted at Lady Hardinge Hospital after quarrel at platform no.1, NDRS. It also stands recorded in it that SI Ashok Kumar departed from the police station in the company of PW12 Ct. Ram Kumar. The constable has supported the statement of SI Ashok Kumar regarding his departure from the police station at about 1.10 AM and their arrival at LHMC Hospital.
Case of prosecution is that on receipt of PW21/E, PW21 SI Ashok Kumar accompanied Ct. Ram Kumar to Lady Hardinge Hospital. According to PW21, on reaching the hospital, he collected MLC Ex. PW8/A of Uday Kumar. The MLC revealed that the patient had been declared unfit to make statement. PW Purshottam M.N. present at the hospital met him Sub Inspector and made his statement Ex. PW21/B. Thereupon, SI Ashok Kumar appended endorsement Ex. PW21/C to PW21/D and State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 9 of 44 handed over the rukka to Ct. Ram Kumar. The constable reached the police station and got this case registered vide FIR Ex. PW2/A, through PW2 HC Adal Singh, duty officer.
PW2 has supported the prosecution version in this regard and also proved to have appended endorsement Ex. PW2/B to the rukka brought by Constable Ram Kumar. He has also proved certificate Ex. PW2/C issued by him under Section 65 B of Indian Evidence Act.
To rule out possibility of consultations and deliberations or fabrication of evidence , copy of FIR in the form of special report is required to be sent to the concerned Magistrate and senior police officers. In this case, special reports were assigned to Constable Sushil. PW25 Ct. Sushil has proved delivery of copies of special reports to senior officers and Metropolitan Magistrate on 10.06.2013.
Case of prosecution is that statement of PW1 was also got recorded under Section 164 Cr.PC. According to PW24, he moved application Ex.PW20/B. PW20, Ms. Aparna Swami, Metropolitan Magistrate has proved to have recorded statement of Purshottam M.N. Ex. PW1/L U/s. 164 CrPC.
State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 10 of 44 From the above evidence led by the prosecution, it stands proved that the FIR came to be recorded without any delay and this fact rules out possibility of any deliberation or consultation or creation of any evidence.
All the material particulars regarding the manner in which the occurrence took place, the date, time and place of occurrence, the name of the victim, the name of the accused, and the manner in which he was apprehended, find mention in it.
OCULAR ACCOUNT
11. PW1 is the only eye witness to the occurrence examined by the prosecution.
According to PW1, both of them were serving as Staff Nurse with Aditya Birla Hospital, Pune (Maharashtra). They visited Delhi on 09.06.2013 to appear in a competitive examination conducted by DSSSP. After having appeared in the examination, both of them reached New Delhi Railway Station, for current reservation, their tickets having not been confirmed. After buying two platform tickets, both of them reached platform no.1, at about 12/12.30 in the night and took seats on a bench State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 11 of 44 in front of S.S. Office.
Further, according to PW1, Uday Kumar was feeling tired. He slept on the aforesaid bench at platform no.1, while he (PW1) was sitting by his side on the same bench. At that time, accused came there and asked him (PW1) Purshottam M.N. to get up from the seat stating that he required a seat. According to PW1, he refused to do so, the reason being that his friend Uday Kumar was sleeping there. Accused scolded and quarreled with him PW1 and then went away, but returned armed with marble stone of light green colour and hit the stone on the right side of head of Uday Kumar who was asleep there on the bench. He tried to catch hold of the accused. At that time, the accused tried to hit him also with the same stone.
According to PW1, thereafter he rushed towards the gate where police officials were present, while accused was still hitting Uday Kumar with the aforesaid stone on his head.
To prove presence of PW1 Purshottam M.N. at the spot on the given date and time, prosecution has led evidence that PW1 produced before Insp. Meera Sharma two platform tickets which have been collectively exhibited as Ex. P1 and the State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 12 of 44 Inspector seized the same vide memo Ex. PW1/H. PW7 Chander Pal Harit is booking supervisor from Indian Railways. He has proved issuance of platform tickets from the current reservation counter. The tickets are Ex. PW1/H. Inspector Meera Sharma has proved to have collected the duty roaster of Sh. C.P. Harit, Chief Booking Supervisor. Same are Ex.PW16/A and Ex.PW16/B. Case of prosecution is that PW13Ct. Mohanan accompanied by ASI Rajpal, Incharge of PCR staff, reached platform no.1 in front of S.S. Office. They noticed Uday Kumar lying on the steel bench with blood oozing out of his head. They also found PW1 present there.
According to PW13 Ct. Mohanan, he was on duty at platform no.1 and present near PCR Van. He heard alarm being raised to catch hold of. There upon he accompanied by ASI Rajpal, Incharge of PCR staff, reached platform no.1 in front of S.S. Office. They noticed Uday Kumar lying on the steel bench with blood oozing out of his head. Further, according to PW13, he apprehended the accused, who was holding a stone in his State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 13 of 44 hands. The accused immediately threw the stone on the floor. The witness has also deposed about presence of PW1 Purshottam M.N. at the spot.
PW3 Ct. Megh Singh has been examined to prove DD No. 5/B, copy Ex. PW3/A which reveals names of the police officials on patrolling duty at New Delhi Railway Station on the aforesaid night.
12. As noticed above, as per prosecution version PW1 witnessed the occurrence and it is on his statement that the case was registered without any delay. Had he not been accompanying his friend Uday Kumar, how could he depose all the material particulars of the occurrence, as find mention in his statement Ex.PW21/B and the statement made in Court. He produced before the police platform ticketscollectively exhibited as Ex.P1.
It may be mentioned here that in the course of arguments, learned defence counsel has candidly submitted that presence of Uday Kumar(since deceased), PW1 Purshottam M.N. and that of the accused on the given date, time and place is not State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 14 of 44 being disputed.
As regards platform tickets Ex.P1, the only contention raised by learned defence counsel is that prosecution has not led evidence as to what was period of validity of these tickets and as to when the same were issued.
PWInspector has proved seizure of the two platform tickets Ex.P1 when produced by PW1, vide memo Ex. PW1/H. PW7 Chander Pal Harit is booking supervisor from Indian Railways. He has proved issuance of platform tickets from the current reservation counter. Statement of PW7 has gone unchallenged.
It is significant to note that in his statement under Section 313 Cr.PC, the accused has admitted his presence on the given date and time at New Delhi Railway station.
Once, in the course of arguments, learned defence counsel, opted not to challenge the prosecution case regarding presence of the three persons i.e. PW1, the deceased and the accused, on the given date, time and place of occurrence, the question of validity of the platform tickets and as to the time of their issuance looses significance.
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13. Learned defence counsel argued that since traveling ticket recovered from the accused was valid only upto 9th of July, 2013, it remains unexplained as to how he was still present at Platform No.1.
This submission put forth by learned defence counsel is self contradictory.
At the cost of repetition, it may be mentioned that in the course of arguments, learned defence counsel clearly submitted that presence of the accused at the spot i.e. Platform No.1, New Delhi Railway Station, New Delhi is being admitted. Even otherwise, accused has come up with the plea that he was to catch train for Devaria on 09.07.2013, but missed the train as he kept on sleeping at the platform. In this situation, when accused has himself explained his presence at the platform, prosecution was not required to explain any fact in this regard.
NO CORROBORATION
14. Learned defence counsel contended that this is a case where there is no corroboration to the statement of PW1, the eye State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 16 of 44 witness to the occurrence. The submission is that only PW13 from Delhi Police is said to have rushed to the spot and apprehended the accused. As specifically pointed out, neither any officer from Indian Railways nor anyone from Railway Protection Force is said to have witnessed the occurrence. The contention is that this fact creates doubt in the version narrated by PW1 regarding the manner in which the occurrence took place and in the version narrated by PW13 regarding the manner in which the accused was apprehended.
Learned Addl. Public Prosecutor submitted that officials are generally busy in performance of their duties and it cannot be said that any official on duty happened to witness the occurrence, but the police did not join them. Further it was submitted that because of change in duty hours of officials, they leave office while others join in their place, and even on this ground, non joining of any official from Railways or RPF does not create doubt in the version narrated by PW1 regarding the manner in which occurrence took place or in the version of PW13 regarding the manner in which the accused was apprehended.
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15. Learned defence counsel submitted that there is nothing on record to show that if investigation was carried out to find out if any other bench was also there and if so, why occupants of the other benches, who might have witnessed the occurrence, were not associated in the investigation.
Case of prosecution is that mobile crime team was called to the spot and one of its members - photographer HC Tara Chand (PW5) took snaps of the scene of crime.
PW5 HC Tara Chand was one of the members of crime team. As is available from his testimony, he took 16 photographs from different angles, as directed by the IO and Incharge Mobile Crime Team. Ex. PW5/A1 to A16 are the negatives. Their positives are Ex. PW5/B (collectively exhibited). This documentary evidence has been proved by PW5.
PW6 Dhan Singh was Incharge of Mobile Crime Team. He has proved to have inspected the scene of crime and prepared report Ex. PW6/A. In these photographs, one can see only one bench, where the occurrence took place. One of the Photographs which gives a broader view of the platform also State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 18 of 44 depicts only one bench i.e. where the occurrence took place. Statements of PW5 & 6 have gone unchallenged.
PW1 has stated in his crossexamination that he and his friends (since deceased) sat on the bench situated outside the office of Station Superintendent; that the said bench was not occupied by anyone at that time; that the said bench was the sole bench in that area, though there was another bench at a distance of about 50 meters from the said bench.
Accused has not brought on record any material to suggest that any other bench was also nearby and occupied by any passenger. It is also not the case of the accused that any other passenger had witnessed the occurrence or made statement before the police describing the occurrence in some different manner. Therefore, the contention raised by learned defence counsel is of no help to the accused.
16. Case of prosecution is that PW13Ct. Mohanan accompanied by ASI Rajpal, Incharge of PCR staff, reached platform no.1 in front of S.S. Office. They noticed Uday Kumar lying on the steel bench with blood oozing out of his head. They State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 19 of 44 also found PW1 present there.
According to PW13 Ct. Mohanan, he was on duty at platform no.1 and present near PCR Van. He heard alarm being raised to catch hold of. There upon he accompanied by ASI Rajpal, Incharge of PCR staff, reached platform no.1 in front of S.S. Office. They noticed Uday Kumar lying on the steel bench with blood oozing out of his head. Further, according to PW13, he apprehended the accused, who was holding a stone in his hands. The accused immediately threw the stone on the floor. He has also deposed about presence of PW1 Purshottam M.N. at the spot.
The argument advanced by learned defence counsel is that when PW13 stated about alarm raised to catch hold of, it appears as if the same was being raised to catch hold of someone running away, but the prosecution wants the court to believe that PW13 reached the spot and witnessed the accused holding a stone, which is not believable.
PW13 was present nearby when he heard the alarm. When such an alarm is raised, always it does not express that it is to catch hold of a person running away. These words "catch State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 20 of 44 hold of" can also be raised where the person raising alarm wants to draw attention of others to a person who has done something wrong or is doing something wrong.
PW8 ASI Rajpal Singh from PCR was also on duty on the said night, with the PCR vehicle positioned outside the main hall of the railway station. According to him, Ct. Mohanan came to them and it was thereafter that they heard alarm being raised to catch hold of. The alarm was emanating from platform no.1. Then, he accompanied by the constable reached platform no.1 and found the accused present there holding a stone in his hands and further that on seeing police officials he hit that stone on the floor of the platform resulting in its breakage into pieces. PW13 has also made statement to same effect i.e. throwing of the stone by the accused with force, on the floor. In his crossexamination, PW13 clearly stated that when he reached the spot, accused was holding the stone in his hand and that it was after some time that he threw the same on the floor of the platform.
In view of the version narrated by PW8, PW13, which finds corroboration from the statement of PW1 about arrival of police officials at the spot and his having apprehended the State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 21 of 44 accused, court does not find any merit in the contention raised by learned defence counsel regarding improbability in the prosecution version narrated by PW1 & PW13.
SCENE OF CRIME, ITS INSPECTION, ARREST OF ACCUSED AND SEIZURE OF MATERIAL OBJECTS FROM THE SPOT
17. As per prosecution version, PCR staff removed Uday Kumar, injured to Lady Hardinge Medical College and Smt. S.K.S. Hospital, New Delhi in the company of PW1.
PW4 HC Hari Prasad of PCR has proved Ex. PW4/A which contains the message received by him at 1.14 AM on the aforesaid night, from the Incharge of the PCR van.
PW13 Ct. Mohanan is stated to have remained at the spot with the accused in his custody.
Information regarding admission of Uday Kumar at the aforesaid hospital was received at PS New Delhi Railway Station and then recorded vide DD No.4A Ex. PW21/A. Another DD No.5A Ex. PW21/E was recorded at the same Police Station on receipt of information from Duty Ct. Pradeep regarding admission of Uday Kumar at the aforesaid State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 22 of 44 hospital in injured condition and that the injured had been declared dead.
Case of prosecution is that on receipt of Ex. PW21/E, PW21 SI Ashok Kumar accompanied Ct. Ram Kumar to Lady Hardinge Hospital. According to PW21, on reaching the hospital, he collected MLC Ex. PW8/A of Uday Kumar. The MLC revealed that the patient had been declared unfit to make statement. PW Purshottam M.N. present at the hospital met him Sub Inspector and made his statement Ex. PW21/B. Thereupon, SI Ashok Kumar appended endorsement Ex. PW21/C to PW21/D and handed over the rukka to Ct. Ram Kumar. The constable reached the police station and got this case registered vide FIR Ex. PW2/A, through PW2 HC Adal Singh, duty officer.
Case of prosecution is that after after getting the case registered PW Constable Ram Kumar returned to the aforesaid hospital. At that time, PW21 SI Ashok Kumar entrusted to him the dead body of Uday Kumar with directions to get the same preserved at the mortuary of the hospital.
According to PW 21SI Ashok Kumar he accompanied PW1 Purshottam M.N. to platform no.1, in front of State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 23 of 44 SI office, New Delhi Railway Station.
Crime team was requisitioned at the spot. The crime team inspected the scene of crime.
PW5 HC Tara Chand and PW6 Dhan Singh from the Mobile Crime Team have proved the role played by them on inspection of the spot. Ex. PW5/A1 to A16 are the negatives of the scene of crime. Their positives are Ex. PW5/B (collectively exhibited). Their report is Ex. PW6/A. Case of prosecution is that Inspector Meera Sharma - Investigating officer also reached the spot. According to PW24 she, having visited the spot, prepared rough site plan Ex. PW24/A depicting the place of occurrence, as pointed out by PW1 Purshottam M.N. As regards seizures from the spot, PW24 has deposed that she picked up from the spot sample of blood, turned the same into sealed parcel and seized it vide memo Ex. PW2/B; that she lifted earth control and earth stained with blood, turned the same into two separate parcels, sealed them and then seized the same vide memos Ex. PW1/G & F; that she lifted from the spot one pair of black colour sandal slipper Ex. P4 having blood State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 24 of 44 stains, turned the same into parcel and seized it vide memo Ex. PW1/K; that she lifted from the spot one single bed sheet (Ex. P7), turned the same into a parcel which was sealed with his seal of MS and then seized it vide memo Ex. PW1/D; that she also lifted from the spot eight pieces of black granite stone (collectively Ex. P6), having blood stains, turned the same into parcel, sealed it with the aforesaid seal and then seized the same vide memo Ex. PW1/E. As per prosecution story, PW24 interrogated and arrested the accused from platform no.1 vide memo Ex. PW1/I. Personal search of accused conducted by the Inspector led to recovery of some items, which find mention in Ex. PW1/J. Same included railway ticket from New Delhi to Devaria Ex. PW21/DX.
During spot inspection, PW24Inspector Meera Sharma found a rexine bag lying there. She came to know from the accused that the bag belonged to him. According to PW24, when she checked the bag, it was found containing the items as find mentioned in memo Ex. PW1/M. Those items were collectively exhibited as Ex.P2.
State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 25 of 44 Ex.P3 is the shirt which the accused was wearing at the time of his arrest. According to PW24, this shirt was also sealed and seized by her vide memo Ex.PW13/A.
18. Learned defence counsel submitted that the accused was apprehended at about 1 AM on the same night but his arrest was shown at about 11 AM on 10.06.2013. Further, it has been submitted that PW21 SI Ashok Kumar displayed ignorance in his statement made in court as to where the accused was, which creates doubt regarding the manner in which SI Ashok Kumar conducted investigation.
It is in the statement of PW21 SI Ashok Kumar that he accompanied PW1 from Lady Hardinge Hospital to the spot. Accused was found present there in the care and custody of Ct. Mohanan. IOInspt. Meera Sharma asked the accused to remove Tshirt and thereupon it was turned into a parcel and seized. Further, according to him, the accused was interrogated by the IO and then arrested at 11 AM. According to PW24 Inspt. Meera Sharma, when she reached the spot on 10.06.2013, accused was found present there in the company of Ct. Mohanan. PW24 State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 26 of 44 reached the spot at about 4.15 AM. Further, according to her, entire investigation was conducted at platform no.1 from 4 AM to 11.45 AM. The witness has proved arrest memo Ex. PW1/I prepared by her and also the personal search memo Ex. PW1/J. The arrest memo depicts the time of arrest of the accused as 11 AM on 10.06.2013.
In view of all this documentary evidence, court does not find any merit in the contention raised by learned defence counsel.
19. Learned defence counsel submitted that according to PW21, his statement was reduced into writing, but the record reveals that statements of witnesses U/s.161 Cr.P.C. are the statements typed on computer, which creates doubt regarding the manner in which the investigation was conducted.
PW21 SI Ashok Kumar stated that his statement was recorded on 10.06.2013 and 11.06.2013 by Inspt. Meera Sharma herself. A perusal of crossexamination of PW24 does not reveal if he was questioned as to the mode of recording of statements of witnesses. Therefore, this court does not find any merit in this State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 27 of 44 contention raised by learned defence counsel.
20. Prosecution has examined PW15 ASI Arvind Kumar to prove CD containing CCTV footage of the scene of crime. According to PW15, he received a letter forwarded by Insp. RPF with a request to provide CD of CC TV Footage recorded from 12 mid night to 1.30 AM on 10.06.2013 in respect of Camera no. 16 installed at platform no.1. Thereupon, he prepared CD of the footage which is Ex.PW24/PX2. It was produced before Inspector Meera Sharma. According to Inspector Meera Sharma, she seized CD of CCTV footage Ex.PW24/PX2, vide memo Ex.PW21/D. One contention raised by learned defence counsel was that without any certificate under Section 65 B of Evidence Act, no reliance can be placed on the CCTV footage.
On the other hand, Learned Addl. Public Prosecutor did not dispute the contention raised by learned defence counsel, but rightly submitted that in view of clear and convincing evidence in the form of statement of PW1 and the corroboratory evidence, excluding the evidence in the form of CCTV footage does not adversely affect the case of prosecution or help the State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 28 of 44 accused.
21. Further according to PW24, he had taken the accused to hospital and got him medically examined vide MLC Ex.PW22/A from Dr. Simmi Kumari. Statement of PW22 Dr. Simmi Kumari has gone unchallenged for want of any cross examination.
Learned defence counsel has contended that in this case prosecution has failed to explain injuries observed on medical examination of the accused, and as such adverse inference has to be drawn against the prosecution.
MLC Ex. PW22/A reveals that on 10.06.2013 at 12.38 PM, when the accused was medically examined, one cut was observed on his left palm, near thumb and superficial cut in the scalp occipital area.
It is not case of the accused that he was inflicted any injury by anyone at the spot. Therefore, it was not for the prosecution to explain the two cuts observed on his person by the doctor.
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22. As regards inquest proceedings, PW24 has deposed to have accompanied the complainant to hospital and conducted inquest proceedings Ex.PW24/B. Ex.P1 is the photograph of Uday Kumar. During inquest proceedings, PW10 Nagraj identified the dead body of his younger brother Uday Kumar vide Ex.PW10/A. MEDICAL EVIDENCE
23. Medical evidence is available in the statement of PW18 Dr. Harbinder and in the form of MLC Ex. PW18/A prepared by him and autopsy report by PW23 Dr. Manoj Kumar Hansda.
According to PW18, on 10.06.2013 while serving at Lady Hardinge Medical College & Hospital at about 12.50 PM. He medicolegally examined Uday Kumar produced by ASI Rajpal Singh, a PCR official. The patient was unconscious and gasping, BP and pulse of the patient were not recordable. On local examination, he found that bilateral frontal bone had depressed fracture with brain herniation. He referred the patient for surgery. The witness has proved MLC Ex. PW18/A prepared State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 30 of 44 by him.
AUTOPSY
24. Autopsy on the dead body of Uday Kumar was conducted by PW23 Dr. Manoj Kumar Hansda. According to PW23, he conducted autopsy on the dead body on 11.06.2013.
During postmortem examination, the doctor observed following external injuries:
1)lacerated wound of size 10.5 cm x 3 cm x cranial cavity deep with herniation of brain matter and blood through it present along with the saggatal plane 4.5 cm right lateral to the mid line starting from right frontal emminace going backwards.
2)Lacerated wound of size 4.5 cm x 1.5 cm x cranial cavity deep with herniation of brain mater and blood through it present along with the coronal plane starting 1.7 cm right lateral of external injury no.1's midpoint.
3)Lacerated wound of size 5 cm x 0.5 cm x bone deep placed vertically starting 1cm above the midpoint of right eyebrow.
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4)Lacerated wound of size 4.7 cm x 0.3 cm x bone deep placed horizontally over mid part of the forehead 1.5cm above the glapella.
5)Lacerated wound of size 3 cm x 0.4 cm x bone deep placed horizontally over the middle and lateral third of left eyebrow.
6)Lacerated wound of size 3 cm x 0.3 cm x 0.3 cm placed horizontally on left half of the face starting 0.5 cm lateral to outer canthus of left eye.
On postmortem examination, the doctor observed following internal injuries in the body:
1)Scalp, skull under surface of the scalp found contused over whole frontal, right parietal and temporal region, depressed communited fracture of right frontal and parietal bone present. The fracture line extended down to whole of the anterior cranial fossa as a transverse fracture.
2)Meninges Dura matter found torn under the depressed communited fracture of right frontal and parietal bone.
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3)Brain the brain matter was found herniating out through the torn dura matter involving right frontal and parietal lobes of the cerebrum, with laceration of the entire frontal parietal lobes of the brain. sub arachnoid hemorrhage present over entire brain with surface contusion of left frontal, right temporal and right occipital lobes of brain.
OPINION OF THE DOCTOR
25. In the opinion of the doctor, death occurred due to craniocerebral injuries sustained and its complications as a result of blunt force trauma to head. As further opined by the doctor, all the injuries were antemortem in nature and fresh in duration; that external injuries no.1, 2, 3 & 4 alongwith corresponding internal injuries were individually and in combination sufficient to cause death in ordinary course of nature. Further according to the doctor, the probable duration that elapsed between death and postmortem examination, was about 34 hours. The witness has proved autopsy report Ex. PW23/A. State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 33 of 44 Record reveals that after autopsy dead body of Uday Kumar was delivered to his brother vide memo Ex.PW10/B. After the autopsy, ASI Raghubir produced before Insp. Meera Sharma, , two sample seals and two sealed parcels were handed over by the concerned doctor, to ASI Raghubir, who in turn produced the same before the Inspector and as such same were seized vide memo Ex.PW19/A and ultimately deposited in the Malkhana.
As per prosecution version, on 22.06.2013 Inspector Meera Sharma collected sealed cloth parcel containing pieces of granite stone and produced the same before the concerned surgeon to have his opinion. Thereupon, the doctor gave his opinion Ex.PW23/B. According to the Inspector, on 01.07.2013 she collected the sealed parcel containing granite stone with the opinion of the doctor and deposited the same with MHCM.
26. One of the contentions raised by learned defence counsel is that as per prosecution case, the accused used granite State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 34 of 44 stone, picked up from nearby, and threw it, but there is no opinion if the stones produced in court are part of the same stone, particularly, when there is contradiction in the statements of witnesses as to the colour of the stone seized from the spot and no photograph of stone was taken. It was also contended that no earth control was seized from the spot, which also creates dent in the prosecution version.
During trial, when PW1 was under examination, one sealed parcel was opened, from it, marble stone pieces having stains of blood were taken out. On seeing these pieces the witness identified the same as the weapon of offence used by the accused in causing injuries to Uday Kumar, in his presence. Accordingly, these pieces were exhibited as Ex. P6. In his cross examination, PW1 stated that the stone, which the accused used in hitting the deceased, was about 1½ feet in length. PW1 has also proved seizure of blood stained stone and other items, from the spot, vide memo Ex. PW1/B to G. All these memos bear his attestation. Memo Ex. PW1/B is regarding seizure of sample of blood from the spot; memo Ex. PW1/E is memo regarding seizure of pieces of stones from the spot; Ex. PW1/F is memo State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 35 of 44 regarding seizure of earth control from the spot.
Case of prosecution is that the sealed parcel containing eight broken pieces of granite stones was produced before PW23 Dr. Manoj Kumar to have his opinion. According to PW23, on 25.06.2013, on opening sealed parcel, he took out 8 broken piece of black granite stones having fresh broken edges except on side of stone no.6, 2 & 5 with adherent reddish brown stains (Bloodstains), hair pieces alongwith dirt like soil spit chewing gum, etc. In the opinion of the doctor, all these 8 pieces of black stones fell into place. In other words, all these pieces belong to a larger stone slab of the diagram as mentioned by him in his opinion Ex. PW23/B. In the opinion of the doctor, injuries on the head of deceased Uday Kumar were possible with granite slab examined by him; that the injuries inflicted with the slab were sufficient to cause death in the ordinary course of nature; and approximation of stone pieces and broken margins are the pieces of one single slab.
Statement of PW23 has gone unchallenged for want of any crossexamination.
State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 36 of 44 In view of the above discussion, there is no merit even in this contention raised by learned defence counsel that prosecution has failed to connect the pieces of stone produced in Court with the present crime.
CONCLUSION
27. In view of the above discussion, court finds that prosecution has established, beyond doubt, that on the intervening hours of 09/10.06.2013, at about 12.30, at platform no.1, New Delhi Railway Station, the accused came near the bench, where Uday Kumar was sleeping while his friend PW1 Purshottam M.N. was sitting; that he dictated that PW1 should get up from there, as he was to sleep there, and despite refusal by PW1, the accused started quarreling with him and then picked up a stone from over the gutter nearby and hit the same on the head of Uday Kumar, who was asleep on the bench, resulting in injuries and ultimately to his departure from this world.
The question arises as to whether the accused made himself liable for an offence punishable U/s.302 IPC or any State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 37 of 44 lesser offence?
Learned Additional Public Prosecutor has submitted that in view of the manner in which injuries were inflicted by the accused on the vital part of the body of Uday Kumar, who was asleep, and the medical evidence, the accused is liable for conviction for the offence of murder.
On the other hand, learned defence counsel has submitted that the act of the accused does not amount to murder and rather the case is covered by the provisions of Section 304 IPC. The ground put forth by learned defence counsel in this regard is that the accused did not intend to cause death of Uday Kumar and rather, as per material on record he got enraged, had a sudden quarrel and fight with PW1, when he was not provided space to sleep on the bench, and that all this, without any premeditation led to infliction of injuries on the person of Uday Kumar. In support of his contention, learned defence counsel has referred to following decisions:
1)Surinder Kumar v. Union Territory, 1989 SC 1094;
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2)Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327;
3)Sunder Lal v. State of Rajasthan, (2007) 10 SCC 371;
4)Randhir Singh & Ors v. State, 2013 SCC OnLine Del 2570;
5)Parbat Singh @ Partap Singh v. State, Delhi Administration, 94 (2001) DLT 290 (DB);
6)Baban Bandu Patil v. State of Maharashtra, Crl.A. 1312/2007 decided by Hon'ble Supreme Court on 15th April, 2009;
7)Rampal Singh v. State of Uttar Pradesh, (2012) 8 SCC 289;
8)Om Prakash & Ors. v. State, Crl.A. 673/1999 decided by our own Hon'ble High Court on 01st May, 2014;
9)Vinod Kumar & Ors. v. State (Govt. of NCT of Delhi), Crl.A. 20/2015 decided by our own Hon'ble High Court on 30 th May, 2016;
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10)Buddhu Singh and Others v. State of Bihar (now Jharkhand), (2011) 14 SCC 471;
11)Nanak Ram v. State of Rajasthan, (2014) 12 SCC 297;
12)Krishan Kumar @ Monu v. State, Crl.A. 907/2012 decided by our own Hon'ble High Court on 09th September, 2014;
In Surinder Kumar's case (supra), the accused appellant therein picked up a knife from the kitchen after PW2 and his deceased brother had entered the room of the appellant and uttered filthy abuses in the presence of sister of the appellant and PW2 had taken out a penknife. In the given circumstances, Hon'ble Apex Court observed that it was reasonable to infer that the deceased must have intervened on the side of his brother PW2 and in the course of scuffle he suffered injuries, one of which proved fatal and accordingly convicted the accused for the offence U/s.304(Part1) IPC.
In Sukhbir Singh's case (supra), the quarrel State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 40 of 44 appeared to be sudden, on account of heat of passion, the accused had gone to his house and returned armed in the company of others. Hon'ble Court observed that there was no sufficient lapse of time between the quarrel and the fight, which meant that the occurrence was sudden. The accused in that case had not acted in a cruel or unusual manner. Accordingly, the case was held to be covered by exception (4) of Section 300 IPC punishable U/s.304(Part1) IPC.
In the case of Sunder Lal (supra), the conviction was converted from the one for offence Section 302 IPC to 304 Part IPC, while taking into consideration that occurrence had taken place in the night in almost dark conditions with feeble light and attack was made indiscriminately.
In Randhir Singh's case (supra), taking into account that the accused had no motive or premediated plan to murder and that fight had taken place between groups on the spur of moment, conviction was altered from S.302 IPC to Section 304 Part I. In the decisions of Parbat Singh @ Partap Singh; Rampal Singh's case (supra) and Krishan Kumar @ Monu's State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 41 of 44 case (supra), finding that the cases were covered by exception I of Section 300 IPC i.e. grave and sudden provocation, the accused were held guilty for the offence under Sec.304 Part I. In Baban Bandu Patil's case (supra), the conviction was altered from Section 302 IPC to Section 304 Part I, while referring to the well settled law on the applicability of exception 4 that it is not sufficient to show that there was a sudden quarrel and there was no premeditation, but the offender must not have taken undue advantage or acted in cruel or unusual manner.
In the decision of Om Prakash (supra), Hon'ble Court observed that it was unfathomable to comprehend that there was a premeditated plan or common intention to carry out murder and the legal position on the applicability of exception 4 to Section 300 IPC, it was held that conviction of the appellants for the offence under Section 304 Part would meet ends of justice.
In Vinod Kumar's case (supra), while finding that intention of the accused was to cause bodily injury to the deceased, held the accused guilty of the offence under Section 304 Part I instead of Section 302 IPC.
State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 42 of 44 In Biddhu Singh and Others' case (supra), Hon'ble Court took into consideration that hard blow with axe landed on vital part of the body, though it was not intended to and that the blow as not repeated, held the accused guilty of the offence under Section 304 Part II.
In Nanak Ram's case (supra), the appellant were found to have gone to the place of occurrence to remove the fence put up by the deceased and his brothers, and when they were resisted, a free fight followed resulting in death, Hon'ble Apex Court took into consideration that there was no intention to kill and that the free fight was accidental, out of 9 injuries only one was held to be of grievous nature and sufficient in the ordinary course of nature to have caused death, the judgment of conviction for offence under Section 304 Part I IPC was pronounced.
28. Here, prosecution has established that the accused came near the bench, where Uday Kumar was sleeping while his friend PW1 Purshottam M.N. was sitting, dictated that PW1 should get up from there, as he was to sleep there, and when State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 43 of 44 PW1 did not obey the dictates, the accused quarrelled with him, then picked up a stone from over the gutter nearby and hit the same on the head of Uday Kumar, who was asleep on the bench, resulting in injuries and ultimately to his departure from this world.
29. Undisputedly, the occurrence took place all of a sudden. There was no premeditation. But, admittedly, no fight, what to say of sudden fight, took place between the accused and the deceased. Accused quarrelled only with PW1 who was awake and not with the victim, who was asleep. The victim had no word with the accused to offend him by not providing seat on the bench. Evidence reveals that the accused had already enough sleep and due to that he had even missed his train for Devaria.
30. Furthermore, as per oral and medical evidence, the accused repeated blows with the stone on the vital part of the body of the sleeping passenger. Thus, he acted in cruel and most unfair manner. During trial, accused totally denied his involvement in the commission of the crime. In view of these State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016 44 of 44 peculiar facts, this case is distinguishable from the decisions referred to by learned defence counsel. Therefore, it cannot be said that he committed an offence which falls within the provisions of Section 304 IPC. Court holds that the accused made himself liable for an offence punishable under Section 302 IPC.
As a result, the accused is held guilty for the offence of murder and convicted thereunder.
Announced in the open Court on this 23rd day of September, 2016.
(NARINDER KUMAR) SPECIAL JUDGE2 NDPS ACT:(CENTRAL DISTRICT) TIS HAZARI COURT:DELHI State v. Ashok Bind Case No 27862/2016 Dated: 23.09.2016