Delhi District Court
State vs . Bhudev Pal Etc. on 20 August, 2011
1
State Vs. Bhudev Pal Etc.
FIR No. 607/07
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL
SESSIONS JUDGE - IV (OUTER): ROHINI : DELHI
Sessions Case No. : 44/08
FIR No. : 607/07
Police Station : Punjabi Bagh
Under Sections : 323/452/308/304/34 IPC
State Versus 1. Bhudev Pal @ Bobby,
S/o Sh. Makhan Lal,
R/o L25/8, Railway Colony,
Diesel Shead Shakur Basti,
Punjabi Bagh, New Delhi.
2. Sunil
S/o Sh. Shiv Dutt,
R/o D36, Railway Colony,
Diesel Shead Shakur Basti,
Punjabi Bagh, New Delhi.
3. Prakash (Juvenile)
S/o Sh. Faqir Ram,
R/o D37, Railway Colony,
Diesel Shead Shakur Basti,
Punjabi Bagh, New Delhi.
Other Details (a) Date of Committal 22.11.2007
(b) Date of Institution
before this Court 01.12.2008
1/37
Contd.....
2
State Vs. Bhudev Pal Etc.
FIR No. 607/07
(c) Date on which reserved
for Judgment 01.08.2011
(d) Date of Judgment 23.08.2011
(e) Final Order Convicted
under sections
452/323/304(II)/34 IPC
J U D G M E N T
1(a) The police officials of police station Punjabi Bagh have filed the charge sheet under Section 173 Cr.P.C. in the present case against three accused persons namely Bhudev Pal S/o Sh. Makhan Lal, Sunil S/o Sh. Shiv Dutt and Prakash (Juvenile) S/o Sh. Faqir Ram for committing offences as punishable under Sections 323/452/308/304/34 IPC on the allegations that on 27.08.07, the complainant Smt. Beena Devi (injured) was residing with her husband Sh. Ram Dulare (since deceased) at house No. L27/1, Railway Colony, Shakur Basti, Punjabi Bagh, Delhi and on that day at about 10.00 pm they saw that, all the three accused persons were peeping inside their house from the window who were snubbed by Sh. Ram Dulare as to why during the late hours of night, they were seeing inside through the window of their house to which the accused persons did not pay any heed and rather abused Ram Dulare after which, they also entered and criminally 2/37 Contd.....
3State Vs. Bhudev Pal Etc. FIR No. 607/07 trespassed into their house their house at which point of time, they were armed with dandas and also gave danda blows on the person of deceased and to the complainant Smt. Beena Devi as well as a result of which number of injuries were caused on the person of Ram Dulare including his eye and his chest as well after which, all the accused persons escaped from the spot and after some time, PCR Van came which shifted them to SGM Hospital for treatment, however since Ram Dulare was unconscious as he had received serious injuries and was critical, hence he was referred to trauma center where he later on expired on 01.09.07.
(b) As per case of prosecution, the complainant Smt. Beena Devi was initially reluctant to lodge any the complaint against the accused persons as her husband Sh. Ram Dulare was very serious, however on 31.08.07 (i.e. prior to his death), she went to the police station and made complaint against them wherein she had categorically mentioned the names of all the accused persons to be the assailants and also narrated the manner in which, they had inflicted injuries on their persons whereupon the investigating agency came into motion and during investigation, all the three accused persons were arrested in which regard necessary memos and documents were also prepared and during the police custody remand, the accused persons had also got recovered the dandas which they had used in committing the said offences on the persons of Smt. Beena Devi and Ram Dulare and the police 3/37 Contd.....
4State Vs. Bhudev Pal Etc. FIR No. 607/07 officials had also recorded statements of witnesses under Section 161 Cr. PC.
After completion necessary proceedings and investigation, the charge sheet under Section 173 Cr.P.C. was filed in the Court of Ld. concerned MM who after compliance of necessary provisions under Section 207 Cr. PC had committed the case to Sessions Court. 2(a). In the present case, after hearing arguments, charge for committing offences as punishable under Sections 452/323/304/34 IPC was served on all the three accused persons to which they had pleaded not guilty and claimed trial.
(b) It would be pertinent to mention that during the course of trial, the accused Prakash was declared juvenile who was sent to Juvenile Justice Board to face the trial of the case. 3(a) Now, so far as the accused persons namely Bhudev Pal and Sunil are concerned, the prosecution in order to bring home guilt has examined eleven witnesses in all namely HC Ramesh Chand as PW1, Ct. Niazuddin as PW2, Smt. Beena Devi (complainant/injured) as PW3, Dr. Manoj Dhingra (CMO, SGM Hospital) as PW4, L/Ct. Parveen as PW5, ASI Lallan (Investigating Officer) as PW6, Ct. Praveen as PW7, Dr. Manoj 4/37 Contd.....
5State Vs. Bhudev Pal Etc. FIR No. 607/07 Dhingra (CMO, SGM Hospital) as PW8, Ct. Ashok Kumar as PW9, Dr. Brijesh Singh (Medical Officer, SGM Hospital) as PW10 and ASI Umed Singh as PW11.
(b) Thereafter, statements of both the accused persons namely Bhudev Pal and Sunil were recorded under Section 313 Cr.P.C. wherein they have submitted that they are innocent and had never ever quarrelled either with the deceased or with his wife. They have also stated that in fact, they were lifted from their houses. It would be appropriate to mention that Initially, only the accused Bhudev Pal wanted to examine Ms. Goma Devi in his defence but later on, he did not examine any witness in his defence.
4. I have heard the final arguments as advanced by Sh. Anil Kumar Gupta, Ld. APP for State and advocate Sh. Harinder, Ld. Defence Counsel for both the accused persons namely Bhudev Pal and Sunil and have given my thoughtful consideration to rival submissions made by them and have also carefully scrutinized the material as placed on record. 5(a). Ld. APP has vehemently argued that the complainant Ms. Beena Devi (PW3) who is the wife of Ram Dulare ( since deceased) and is one of the victims at the hands of accused persons, who has very categorically identified the accused Bhudev and Sunil to be amongst the assailants who at 5/37 Contd.....
6State Vs. Bhudev Pal Etc. FIR No. 607/07 the relevant time not only peeped into their house through window during night but even abused her husband when he objected to it and did not stop thereafter and rather forcibly entered criminally and trespassed into their house at which point of time, they were armed with dandas from which they inflicted injuries on their persons which ultimately resulted into the death of Ram Dulare in the hospital.
(b) Ld. APP has further argued that initially Smt. Beena Devi was not inclined to report the matter to police officials as she was more concerned about the condition and health of her husband Sh.Ram Dulare who was badly injured by the accused persons and it was only after 23 days that she could find time and went to the police station where she lodged the report on which, FIR was promptly registered and investigation immediately commenced and has contended that as such the delay in lodging the FIR has been appropriately explained. He has also contended that in the FIR, names of Bhudev Pal and Sunil are also categorically mentioned to be the assailants and their acts of the relevant time were also clearly described by Smt. Beena Devi who has narrated the manner in which they had inflicted aforesaid injuries.
(c) He has also submitted that during the detailed investigation, not only the accused Bhudev Pal and Sunil confessed to have committed the said crime but even the weapon of offence i.e. dandas were also recovered at 6/37 Contd.....
7State Vs. Bhudev Pal Etc. FIR No. 607/07 their instance in pursuance of their disclosure statements which has also lend corroboration to testimonies of prosecution witnesses.
(d) Ld. APP has also averred that the detailed investigation was conducted which has been duly proved on record which has nowhere shown or even suggested if any of the accused persons namely Bhudev Pal and Sunil are innocent or have been falsely implicated or did not commit the alleged offences and has also contended that no motive to falsely implicate the accused persons has even been shown or whispered on record.
(e) He has further submitted that the postmortem examination on the body of Ram Dulare was conducted which establishes that he had died due to the injuries as caused by the accused persons which has further strengthened the case of the prosecution and has prayed that since prosecution has succeeded in bringing home the guilt of both the accused persons namely Bhudep Pal and Sunil beyond reasonable doubt, hence they must be convicted for committing the alleged offences under sections 452/323/304(II)/34 IPC.
6(a). Ld. Counsel for the accused persons has strongly rebutted the same contending that in fact, none of the said accused persons is responsible for the death of Ram Dulare which was accidental and in fact, he had died due to his habit of drinking excessive liquor in which regard, his wife Smt. 7/37 Contd.....
8State Vs. Bhudev Pal Etc. FIR No. 607/07 Beena Devi has stated that he would not have died had he not taken excessive liquor (b) He has also argued that Smt. Beena Devi had never held any of the accused persons responsible for the death of her husband and has pardoned them as she never wanted to initiate any criminal proceedings against them. He has also submitted that as per Smt. Beena Devi her husband , Ram Dulare (deceased) in general was not keeping well and his death is due to excessive drinking as even on the day of occurrence, he had consumed liquor despite her objection.
(c) Ld. defence counsel has also averred that it is very strange that Smt. Beena Devi did not accompany her husband to the hospital on that day or even thereafter and has also submitted that Smt. Beena Devi has no grudge against any of the accused persons nor wanted to lodge any complaint against them as she considered them innocent and not responsible for death of Ram Dulare.
(d) He has also submitted that none of the accused namely Bhudev Pal and Sunil was present at the spot at the relevant time and none of them had ever quarreled with Smt. Beena Devi or with her deceased husband ever. Ld. defence counsel has prayed that since both the accused persons are innocent who have been falsely implicated in this case, hence they must be acquitted of the charges leveled against them.
8/37
Contd.....
9State Vs. Bhudev Pal Etc. FIR No. 607/07 7(a). In rebuttal, Ld. APP has submitted that in fact from the postmortem examination result of the deceased, it is clear that the cause of his death was not due to excessive drinking but it was due to the injuries which he had received at the hands of the accused persons.
(b) He has also submitted that the complainant Smt. Beena Devi had not accompanied her injured husband to the hospital as she too had received injuries at the hands of the accused persons and both of them were shifted to the hospital by PCR officials in which circumstances, there was no occasion for her to be with her husband.
(c) He has also argued that the complainant had not gone to the hospital thereafter as she herself has clarified that she thought that the injuries to him were not very serious and she could never presume that her husband would die.
(d) Ld. APP has also submitted that though Smt. Beena Devi has stated that the death of her husband was not possible had he not got weakened due to his habit of consuming liquor but the report of his doctor is very categoric that consumption of liquor was never the cause of death of Ram Dulare.
(e) He has further averred that though the complainant Smt. Beena Devi has stated that now she had no grudge against the accused persons does not mean that they had not committed the alleged offence and it rather 9/37 Contd.....
10State Vs. Bhudev Pal Etc. FIR No. 607/07 clearly implies that earlier they had committed the offence but with passage of time or for some other reason, she has pardoned them.
(f) Ld. APP has further submitted that no motive for false implication of the said accused persons has been shown or whispered on recored and there is no reason as to why Smt. Beena Devi, who at some places during her cross examination has tried, though unsuccessfully to exonerate the accused persons, would depose against them. He has prayed that since prosecution has succeeded in bringing home the guilt of both the accused persons, hence they must be convicted for causing the death of Ram Dulare and also for causing injuries on the person of Smt. Beena Devi as well as for criminally trespassing into their house and that too during dead of night.
8 Ld. Defence counsel has prayed that none of the arguments of Ld. APP is tenable and since both the accused persons are innocent, hence they must be acquitted.
9 In the present case, before proceeding any further, it would be appropriate to discuss the provisions of Sections 321,452,299 and 34 IPC which are as under:
(a) As per provisions of Section 321 IPC:
Voluntarily causing hurt "Whoever does any act with the intention of thereby causing hut to any person, or with the knowledge that he is likely 10/37 Contd.....
11State Vs. Bhudev Pal Etc. FIR No. 607/07 thereby to cause hurt to any person, and does thereby cause hurt to any person, is said voluntarily to cause hurt".
(b) As per provisions of Section 452 IPC:
Housetrespass after preparation for hurt, assault or wrongful restraint "Whoever commits house trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine".
(c) As per provisions of Section 299 IPC: Culpable Homicide "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide".
(d) As per provisions of Section 34 IPC: Acts done by several persons in furtherance of common intention "When a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for 11/37 Contd.....
12State Vs. Bhudev Pal Etc. FIR No. 607/07 that act in the same manner as if it were done by him alone".
10 As per facts and circumstances of the case, the entire case of prosecution revolves around the testimony of the complainant Smt. Beena Devi (PW3) who is not only an eyewitness to the occurrence but is also victim at the hands of accused persons and is the complainant as well and accordingly, it would be not out of place to discuss her testimony at the earliest.
11(a) Smt. Beena Devi (PW3) has testified that at the relevant time, all the accused persons including the accused Bhudev Pal and Sunil were known to them, who on that day, were peeping into their house through window during night to which, her husband (deceased Ram Dulare) objected but all the said accused persons, rather entered into their house who at the relevant time were armed with dandas and started giving beatings to her husband (since deceased) who received injuries on his eye also and even she was also beaten up by them on her head due to which she had received eight stitches. She has further deposed that after some time, PCR officials came who shifted them to SGM Hospital and since due to injuries inflicted by the accused persons, her husband had got unconscious who was also profusely 12/37 Contd.....
13State Vs. Bhudev Pal Etc. FIR No. 607/07 bleeding so, after some time, he was shifted to Trauma Center. She has also deposed that her husband had expired after 23 days, due to the said injuries. She has identified the dandas as used by the accused persons as Ex. P1 to P3 which were recovered at the instance of accused persons in pursuance of their disclosure statements.
(b) During leading questions put by Ld. APP, she has stated that when her husband Ram Dulare ( since deceased) had objected to the accused persons regarding their peeping into their house during night, they started abusing them and when her husband asked them not to abuse, they entered into their house and caused injuries to her husband on his chest als,o after which they fled away from the spot. She has also stated that the accused Bhudev Pal was armed with comparatively a thicker danda as compared to the danda possessed by the accused Sunil. She has also stated that when she and her husband raised alarm, some persons of their locality gathered who rescued them. She has also stated that the accused persons hit her husband on his face several times and when she tried to save him, she was also beaten up by them. She has categorically stated that the accused persons had intended to kill them on that day i.e. on 27.08.07 at about 10.00 pm. She has also stated that the police officials had recorded her statement Ex. PW4/A on which she had put her thumb impression at point 'A'.
(c) During cross examination on behalf of both the accused persons, 13/37 Contd.....
14State Vs. Bhudev Pal Etc. FIR No. 607/07 she has interalia stated that she did not accompany her husband to the hospital after the occurrence or thereafter as she was also taken to the hospital at the same time as she was also injured and, she also thought that her husband might not have received very serious injuries. She has expressed her ignorance as to who had initially informed the police officials but insisted that she had been knowing the accused persons prior to the occurrence as they used to reside nearby. She has also stated that earlier her husband was being treated for his habit of consuming liquor who in general used to remain unwell and has also stated that on the day of occurrence also, her husband had also consumed liquor. She has also stated that as such no quarrel between her husband and the accused persons took place regarding consumption of liquor. She has expressed her inability to state whether the police officials had recovered dandas or not. She has also stated that in the occurrence, her husband had also received injuries on the left eye. She has also emphasised and clarified that nobody had told her as to how and what she had to depose before the court on the day of her deposition. She has also stated that she did not remember as to what abuses were hurled by the accused persons on the date of occurrence. She has also stated that the accused persons had also given beatings to her.
During further cross examination on behalf of both the accused 14/37 Contd.....
15State Vs. Bhudev Pal Etc. FIR No. 607/07 persons, she has also clarified that the said quarrel had also taken place outside their house near the khambha/pillar and the deceased had also got hit against it and after the incident, the accused persons had escaped from the spot. She has also stated that after the occurrence, she had neither quarrelled with the family members of the accused persons nor developed any grudge against them. She has also stated that death of her husband was not possible had he not got weakened due to his habit of consuming liquor. She has denied if the accused persons are innocent or if they did not quarrel with them in the manner as deposed by her.
12(a). In the present case, after going through the testimony of complainant Smt. Beena Devi carefully, it is shown that she is not only the victim at the hands of accused persons but is an eye witness of the occurrence who had very clearly identified them to be amongst the assailants. She has categorically told about the place and the manner in which the said occurrence took place and not only this, but she, time and again has also identified both the accused persons to be amongst the assailants & nowhere, either her presence or that of her husband or that of the said accused persons is shown to be doubtful. The said witness has very emphatically narrated about the whole occurrence by clearly stating that since the accused persons were peeping into their house during night through 15/37 Contd.....
16State Vs. Bhudev Pal Etc. FIR No. 607/07 the window, her husband had objected on which, the said accused persons had also abused them who thereafter not only entered into their house but had also inflicted injuries upon them by dandas due to which, her husband got unconscious and she too received injuries at their hands and that the PCR officials had shifted them to the hospital.
(b) It would also be pertinent to mention here that she was cross examined at length by Ld. defence counsel for both the accused persons wherein, she had reiterated and reasserted as to whatever she has already deposed in her examination in chief earlier and though at some place, she has stated that her husband was in the habit of consuming liquor and had he had not got weakened, he would not have died. The same in considered opinion of the court, does not absolve the accused persons of their committing the alleged offences and does not dilute their acts. It has to be kept in mind that she time and again, has come forward in averring that it was the accused persons also who had given repeated danda blows on the person of her husband including his face as well and in considered opinion of the court, simply because he got weakened due to consumption of liquor does not mean that he went into coma due to his habit of drinking or that he did not sustain injuries at the hands of the accused persons in the manner and on the places as alleged.
(c) In fact from her testimony, it is clearly shown and rather 16/37 Contd.....
17State Vs. Bhudev Pal Etc. FIR No. 607/07 established on record that it was only after receiving the repeated danda blows by the deceased at the hands of the accused persons that he fell down and blood also oozed out from his person as well and he lost consciousness after which he went into coma which condition of deceased Ram Dulare has been clearly proved by the concerned doctor Manoj Dhingra(PW4) which has nowhere been rebutted or shown to be false by or on behalf of either of the accused persons.
(d) It is also nowhere shown on record and there is nothing to indicate that if it was due to or under the influence of liquor that Ram Dulare had lost consciousness or that due to consumption of liquor, blood had oozed out from his person or he went into coma due to drinking or his death was consequential of his consuming liquor. During cross examination on behalf of both the accused persons, it is shown that though Smt Beena has stated that now she has no grudge against the accused persons & has no complaint against them, yet in considered opinion of the court, it does not lead to the necessary conclusion that the accused persons did not commit the said offence or did not cause injuries on the person of Ram Dulare which resulted in his death. It is quite possible that with passage of time or by having pity upon the accused persons & their families, Smt. Beena Devi(PW3) has stated so or there may be some other reason for her saying so but it, by any stretch of imagination indicate at all that the said accused persons had not 17/37 Contd.....
18State Vs. Bhudev Pal Etc. FIR No. 607/07 physically assaulted her and Ram Dulare (deceased) in the manner as alleged at the relevant date, time and place as deposed by Smt. Beena Devi who has clearly identified them to be culprits and have stated that due to injuries caused by them, Ram Dulare has died which contention of PW3 has nowhere been shown to be false.
13 In this regard, at this juncture, it would also be appropriate to discuss the testimony of Dr. Manoj Dhingra (PW4) who is also examined as PW8.
(a) Dr. Manoj Dhingra has deposed that he had conducted the postmortem examination on the body of Ram Dulare on 03.09.07 vide postmortem report Ex.PW4/A during which he found certain external and internal injuries on his person which he has ellaborated as under:
External Injuries:
1. Abrasion over left side of face and swelling present just below left eye.
2. Abrasion over left side of shoulder of size 3x2 cm.
3. Bruise over left side of chest of size 2 x 1 cm.
Internal Injury: Head - Sub Scalp Hematoma present over left frontal region. Sub arachonoid hemorrage over left temp parital region. Fracture right parital bone.
18/37
Contd.....
19State Vs. Bhudev Pal Etc. FIR No. 607/07
(b) Dr. Manoj Dhingra has also opined that cause of his death was coma as a result of head injury consequent to blunt force impact and also that all the said injuries were antemortem in nature and were of same duration.
He has also proved on record the MLC of Ram Dulare as earlier prepared by Dr. Brijesh Singh as Ex. PW4/B at which point of time, Ram Dulare was unfit to make the statement who was referred for surgical opinion vide Ex. PW4/C as endorsed by Dr. Aditya. He has also proved the MLC of Smt. Beena Devi( complainant) as Ex. PW4/C as prepared by Dr. Aditya.
(c) It is appropriate to mention here that Dr. Manoj Dhingra (PW4) has in detail mentioned about the various external and internal injuries found on the person of deceased including injuries over his head including fracture of bone and has also opined that the cause of his death was coma as a result of said head injury consequent to blunt force impact which were antemortem, however, the the accused persons have nowhere challenged or rebutted the same on any count whatsoever and have preferred not to cross examine him on any aspect at all and have admitted his version in totality. They have accordingly have also fairly conceded that Ram Dulare had died due to said injuries and not due to influence or ill effects of liquor or due to 19/37 Contd.....
20State Vs. Bhudev Pal Etc. FIR No. 607/07 his poor health as injuries described by the doctor are quite specific and categoric and are nowhere shown to be the result of consumption of liquor or general ill health of deceased.
(d). During cross examination by Ld. defence counsel, he has stated that there was only one injury on the person of Smt. Beena Devi which could also be possible by fall.
14(a). Dr. Brijesh Singh (PW10) has deposed that on 27.08.07, Ram Dulare (since deceased) was brought to casualty with history of physical assault and loss of consciousness and he was bleeding from his mouth as well, who was examined vide MLC Ex. PW4/A and has further deposed that he was unconscious and was not fit to make any statement.
(b) During cross examination on behalf of both the accused persons, he has clearly stated that the patient was also referred for CT Scan and from the overall report, he has anticipated head injuries on the patient but could not tell its magnitude.
15 From the above reports i.e MLC and observations of the concerned doctors regarding Ram Dulare, it is clear and rather placed on record that when Ram Dulare was admitted in the hospital, he was in coma who was not in a condition to make any statement and at that time, he was 20/37 Contd.....
21State Vs. Bhudev Pal Etc. FIR No. 607/07 also bleeding which has corroborated the version of Smt. Beena Devi (PW3) on relevant aspects. It is also proved on record from the earlier discussion that both the accused persons had also caused injuries on the person of Ram Dulare (deceased) on his eye, chest as well as inflicted repeated injuries on his face which undoubtedly includes the head also and it is in fact a matter of common prudence that when a person is injured and is given repeated danda blows on his face, then injury on the head would also occur, more particularly when the assailants are more in number and all of them had inflicted said blows with dandas on the face of deceased. Hence simply because Smt. Beena Devi has not specifically stated that injury on head of Ram Dulare was also caused by the accused persons, yet it does not lead to the necessary conclusion that they were not in a position to inflict said injuries or that they had not done so. It is nowhere shown if prior to the said occurrence, if at all Ram Dulare was suffering from any head disease or was in coma or was bleeding from anywhere and admittedly it is only after the occurrence in which the accused persons had actively participated that he had suffered from the same. There is nothing on record that after his admission in the hospital, if in any manner, he suffered any head injury at all or any other person except the accused person is responsible. From the material as placed on record, the only irresistable conclusion that can be drawn in such circumstances is that it is undoubtedly that both the accused 21/37 Contd.....
22State Vs. Bhudev Pal Etc. FIR No. 607/07 persons namely Bhudev Pal and Sunil who are also responsible for causing head injuries on the person of Ram Dulare (deceased) as well and apart from Smt. Beena Devi, his postmortem report also reveals that the said head injuries had proved fatal for Ram Dulare (deceased) which resulted in his death and his weak condition, if any or influence of liquor was never the cause of his death. Though, Dr. Manoj has proved MLC of Smt Beena Devi (PW3) and during cross examination, he has stated that said injury could be possible by falling but he has never stated if said injuries could not be caused in the manner as alleged or as deposed by Smt Beena Devi (PW3). Un disputedly, Smt Beena Devi (PW3) is the most material witness examined by the prosecution who has very emphatically identified both the said accused persons to be the assailants who had inflicted injuries not only on the person of Ram Dulare but on her persons also which has nowhere successfully rebutted by the accused persons and both the accused persons have miserably failed to show if Smt Beena Devi (PW3) did not suffer alleged injuries on their hands.
16(a). Apart from the said witnesses, the prosecution has also examined HC Ramesh Chand (PW1) who has deposed that at the relevant time, he was posted at PS Punjabi Bagh on the intervening night on 31.08.07 and 01.09.2007 from 5.00 pm to 1.00 am (night) and at about 6.30 pm, he received a rukka as handed over by ASI Lallan Prasad (PW6) on the basis of 22/37 Contd.....
23State Vs. Bhudev Pal Etc. FIR No. 607/07 which, he had registered the present FIR and thereafter, he handed over the rukka and copy of FIR to Ct. Ashok Kumar (PW9) who delivered them to ASI Lallan Prasad (PW6) who was entrusted with the investigation of the present case. He has proved on record the copy of FIR and the rukka as Ex. PW1/A and Ex. PW1/B respectively.
(b) The accused persons have preferred not to cross examine the said witness despite opportunity given and have accordingly admitted that at the relevant time, the present FIR was registered against them wherein their names were specifically mentioned as assailants which they have nowhere rebutted or disputed by them.
17(a). Ct. Niazuddin (PW2) has deposed that on 27.08.07, he was working as DD Writer and at about 10.35 pm, he received an information regarding quarrel from the duty officer of PP Madipur, on which he recorded DD No. 62B and has proved its copy as Ex. PW2/A.
(b) It would be appropriate to mention here that DD No. 62B has referred to the quarrel i.e incident of the relevant date, time and place which has also lend necessary corroboration to the testimony of Smt. Beena Devi, however none of the accused persons have preferred to cross examine the said witness and accordingly, they have fairly admitting occurance of the said incident at the relevant time.
23/37
Contd.....
24State Vs. Bhudev Pal Etc. FIR No. 607/07 18(a). Lady Ct. Parveen (PW5) has testified that at the relevant time, she was working as DD Writer at PS Punjabi Bagh and telephonic information was given by Ct. Ghanshyam from Trauma Center regarding the death of Ram Dulare which she reduced into writing vide DD No. 26B and has proved its copy as Ex. PW5/A. The accused persons have not cross examined her on any aspect despite opportunity given.
(b) In fact DD No. 26B which is Ex. PW5/A is regarding death of Ram Dulare in the Trauma Center where he was shifted from SGM Hospital as his condition was critical and due to injuries received in the occurrence, he has expired.
19(a) ASI Lallan Prasad (PW6 Investigating Officer) has deposed that on 27.08.07, he was posted on emergency duty at PS Punjabi Bagh and on receiving DD No. 62B which is Ex. PW6/A (regarding the occurrence), he went to the spot i.e. at Quarter No. L27/1, Railway Colony, Diesel Shed, Shakur Basti, Punjabi Bagh, however he came to know that the PCR officials had already shifted the injured to SGM Hospital, so he went there and collected the MLC of injured but Ram Dulare (since deceased) was declared unfit to make the statement who was also referred to trauma center and so he collected the MLC of Smt. Beena Devi but she was reluctant to make any statement at that time as her husband was serious. He has further deposed that on 31.08.07, she herself came to the police station and got her statement 24/37 Contd.....
25State Vs. Bhudev Pal Etc. FIR No. 607/07 Ex. PW1/A recorded on which she had also put her thumb impression as well which he attested at point A and prepared rukka which is Ex. PW6/B and handed it over to the duty officer for registration of FIR. He has further testified that he made efforts to trace out the accused persons but did not succeed.
He has also deposed that on 01.09.07, the accused persons namely Bhudev Pal and Sunil themselves tried to surrender in the court, however while they were still outside the court premises, he alogwith Ct. Praveen (PW7) had apprehended them and thereafter, made a request to the duty officer to send other staff to assist him in the investigation and during investigation, dandas at the instance of accused persons Bhudev Pal and Sunil were also recovered with which they had caused injuries on the persons of Smt. Beena Devi and Ram Dulare.
He has further testified that on 02.09.07, on receiving DD No. 26B which is Ex. PW5/A, he received the information that Ram Dulare had expired and accordingly, he shifted the dead body of Ram Dulare from Trauma Center to the mortuary of SGM Hospital. He has further deposed that on 03.09.07, he prepared the inquest report which is Ex. PW6/C , got the postmortem examination conducted on the body of Ram Dulare which was identified by Mahesh and Om Prakash whose statements Ex. PW6/D and Ex. PW6/E respectively were also recorded by him. He has also deposed that on 25/37 Contd.....
26State Vs. Bhudev Pal Etc. FIR No. 607/07 31.08.07, he had also visited the spot i.e. L27/1, Railway Quarters, Shakur Basti, Delhi where he had prepared site plan at the instance of complainant Smt. Beena Devi which is Ex. PW6/D and has also proved the arrest memos of the accused persons namely Bhudev Pal and Sunil as Ex. PW7/G and Ex. PW7/H and their personal searches were conducted vide memos Ex. PW7/I and Ex. PW7/J. He has also proved the disclosure statements of both the said accused persons as Ex. PW7/E and Ex. PW7/F respectively in pursuance of which, the accused Bhudev Pal had also got recovered one danda from behind the railway quarter and the accused Sunil had also got recovered one danda from behind of his jhuggi during their Police Custody. remand which he seized vide memos Ex. PW7/A and Ex. PW7/B respectively.
He has further testified that thereafter both the accused persons were got medically examined after which, they came back to the police station and the dandas were deposited with MHCM. He has also narrated about the investigation as conducted by him regarding the coaccused Prakash (facing trial before Juvenile Justice Board) in this case. He has also deposed that on 02.09.07, after conducting postmortem examination on the body of Ram Dulare, it was handed over to his legal heirs and on 03.09.07, his blood sample was handed over to him by the concerned doctor which he seized vide memo Ex. PW6/E and he also recorded the statements of witnesses under section 161 Cr.P.C. He has identified the dandas as 26/37 Contd.....
27State Vs. Bhudev Pal Etc. FIR No. 607/07 recovered at the instances of accused persons namely Bhudev Pal and Sunil as Ex. P1.
(b) During cross examination on behalf of both the accused persons, he has interalia stated that at the time of arrest of accused Bhudev Pal and Sunil, he was assisted by Ct. Praveen (PW7) and when the accused persons were produced in the court, he was also assisted by SI Omvir. He has denied if the writing work was done while sitting in the police station or that Ct. Praveen (PW7) did not join the investigation alongwith him. He has fairly conceded that he did not obtain the signature or thumb impression of Smt. Beena Devi on the site plan. He has also mentioned the details and the manner in which the dandas were recovered at the instance of both the accused persons. He has denied if he has falsely implicated the accused persons as the complainant Smt. Beena Devi (PW3) belonged to his village or that he did not conduct the investigation properly. 20(a). Ct. Praveen (PW7) had accompanied the investigating officer ASI Lallan Prasad (PW6) and has deposed on his lines, hence his examination in chief is not repeated for the sake of brevity. He has interalia proved on record the seizure memo of the dandas as recovered at the instance of accused Bhudev Pal and accused Sunil as Ex. PW7/A and Ex. PW7/B respectively and has identified them as well. 27/37
Contd.....
28State Vs. Bhudev Pal Etc. FIR No. 607/07
(b) During cross examination by Ld. APP for state, he has clarified that the investigating officer ASI Lallan Prasad (PW6) had sought one day P.C. remand regarding the accused Bhudev Pal and Sunil after they were arrested and has also explained that he could not tell about it earlier as he had forgotten the details it due to lapse of time.
(c) During cross examination on behalf of both the accused persons, he has interalia stated that at the time of arrest of accused persons, he was present with the investigating officer ASI Lallan Prasad (PW6) and has denied if the proceedings or the writing work was done while sitting in the police station. He has also stated that the accused Bhudev Pal and Sunil were arrested on 01.09.07 and denied if he is deposing falsely. 21 In the present case, the investigating officer ASI Lallan Prasad (PW6) and Ct. Praveen (PW7) have narrated the detailed investigation as conducted and joined by them and it is nowhere shown if they are deposing falsely or that they have not arrested the accused Bhudev Pal and Sunil in the manner as mentioned by them or that they did not got effected the recovery of dandas at the instance of the accused persons in pursuance of their disclosure statements with which the accused persons namely Bhudev Pal and Sunil had caused injuries on the persons of Ram Dulare (deceased) and Smt. Beena Devi in the manner as deposed by them and though the accused 28/37 Contd.....
29State Vs. Bhudev Pal Etc. FIR No. 607/07 persons had stated that they have been falsely implicated but no motive at all has been shown regarding interestedness of the investigating officer or of the complaint in falsely implicating them in the present case. The testimonies of the investigating officer ASI Lallan Prasad (PW6) and Ct. Praveen (PW7) have been corroborated by each other on all material aspects and there is no doubt if they have not come with true narration of the investigation as conducted or regarding the recovery of dandas at the instance of accused persons with which they had committed the alleged offences. 22(a) Ct. Ashok Kumar (PW9) has deposed that on 31.08.07, he was handed over the copy of present FIR alongwith the original rukka which he took to the spot and handed them to ASI Lallan Prasad (PW6) who had also prepared site plan at the instance of Smt. Beena Devi (PW3) and recorded her statement as well.
(b) During cross examination by Ld. defence counsel, he has inter alia stated that he went on foot as the distance between the police station and the spot was only about 2½ kms. He has also stated that he had met Smt. Beena Devi (PW3) at the spot and denied if the investigating officer ASI Lallan Prasad (PW6) had not conducted the proceedings in the manner as deposed by him.
29/37
Contd.....
30State Vs. Bhudev Pal Etc. FIR No. 607/07 23(a). ASI Umed Singh (PW11) he had shifted the injured persons to SGM Hospital on receiving the information. He has deposed on 27.08.07, he was posted as Incharge at Power 93 PCR and at about 11.00 pm, he received information regarding the quarrel on which, he alongwith other official staff reached at the spot i.e. 27/1, Railway Colony, Shakur Basti, Punjabi Bagh, Delhi where Ram Dulare (deceased) was found in an injured condition who was shifted to SGM Hospital in emergency. He has further testified that when they again came to the spot, the investigating officer ASI Lallan Prasad (PW6) had already reached there and so they came back .
(b) During cross examination on behalf of both the accused persons, he has interalia stated that since the injured was serious, so they did not make any enquiry from anybody and it took around 1520 minutes to get him admitted in the hospital. He has also clarified that thereafter, he did not come back to the spot but went to the place of his duty. 24 As per record, ASI Umed Singh (PW11) had initially reached at the spot as he was posted at PCR who shifted the injured to hospital who has also lend necessary corroboration to the testimony of Smt. Beena Devi (PW3) on all relevant and material aspects. There is no doubt that Ram Dulare (deceased) was injured in the occurance and the manner in which he was injured has been clearly narrated by Smt. Beena Devi (PW3) as has 30/37 Contd.....
31State Vs. Bhudev Pal Etc. FIR No. 607/07 already been discussed earlier and Ram Dulare (deceased) was shifted by ASI Umed Singh (PW11) to the hospital where appropriate treatment was given to him by the doctors which has already been discussed at length which is nowhere been shown to be false or manipulated and it is nowhere shown if Ram Dulare and Smt Beena Devi (PW3) had not suffered said injuries in the occurance or that Ram Dulare has not died becuase of same. 25(a) In the present case, though the prosecution has not examined any other public or independent witnesses to corroborate the version of Smt. Beena Devi (PW3), however in the given circumstances, in view of aforesaid discussion, it is not necessary that corroboration is required to look forward as testimony of Smt. Beena Devi (PW3) is found cogent, convincing and has inspired confidence of the court in so far as she has come forward with true picture of the occurrence whose testimony has not suffered from any artificiality or exaggeration that renders it unbelievable which is corroborated in essential particulars by the medical evidence and other record as already discussed.
(b) It is settled law that where the testimony of complainant inspires confidence of the court and has at length told even the minute the detail of the case whose testimony does not suffer from any inherent infirmity or 31/37 Contd.....
32State Vs. Bhudev Pal Etc. FIR No. 607/07 discrepancy of said nature which made it unreliable, the same must not be discarded as minor variations here and there may occur with the passage of time if they do not effect the merits of the case, they must be ignored. In the present case, no serious infirmity or material discrepancy in the version of complainant is observed which make it unbelievable or raise doubt regarding genuineness of the case of the prosecution.
26(a). In the present case as already discussed, in the given circumstances after carefully perusing the testimony of the complainant smt Beena Devi (PW3), it would not be appropriate to term Smt. Beena Devi (PW3) as an interested witness as she is not only the complainant but also one of the victims at the hands of accused persons who had not only inflicted injuries upon her person but even caused the death of her husband by injuring him even on his head and in these circumstances, she is the most material witness whose presence at the spot and witnessing the entire occurrence is not challenged and not shown to be doubtful and considering totality of the facts and circumstances, if she would not be coming forward to depose regarding the occurrence then who would else come. It is also an admitted fact that it was night time and people and neighbourhood in the vicinity were admittedly inside their houses who gathered only after the accused persons had inflicted injuries that the injured raised hue and cry and 32/37 Contd.....
33State Vs. Bhudev Pal Etc. FIR No. 607/07 when they reached at the spot, the accused persons managed to flee away from the spot. In these circumstances, the testimony of Smt. Beena Devi (PW3) cannot be held as unreliable and there is no reason to discard it simply because it is not corroborated by any public or independent witness.
(b) It is settled law that is the quality of evidence and not its quantity that matters and nothings is shown on record if any better or creditable witness has been left over by the prosecution. There is no rule of law that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon.
(c) On careful analysis of testimony of Smt. Beena Devi (PW3), she seems to be a cogent, convincing reliable witness whose testimony does not suffer from any infirmity which go to the root of the matter and shake her basic version. Her testimony has been corroborated on all material aspect by the concerned doctors and medical record which has already been discussed above and by the PCR official ASI Umed Singh (PW11) as well who took them to the hospital.
27 In the present case, though, there is a delay of about 23 days in lodging the FIR, but an explanation has been placed on record that though the investigating officer made efforts to record the statement of Smt. Beena Devi but she was very disturbed due to critical condition of her husband, hence FIR was not recorded at the same day itself as Ram Dulare (deceased) 33/37 Contd.....
34State Vs. Bhudev Pal Etc. FIR No. 607/07 was unconscious and unable to make any statement. It is also proved on record that on 31.08.07, Smt. Beena Devi (PW3) herself came to the police station and got her statement Ex. PW3/A recorded bearing her thumb impression at point A which factum has nowhere been challenged or disputed by or on behalf of any of the accused persons namely Bhudev Pal and Sunil whereupon the present FIR was registered wherein the names of assailants as Bhudev Pal and Sunil have been also specifically mentioned to the persons who have committed the said offences which is nowhere been rebutted or shown to be false or manipulated.
28(a). Further, in the present case, as per record, no infirmity is shown to have been attached to the testimonies of any of the police officials who have been examined by the prosecution and the Apex Court has laid down in a number of case that there is no rule of law that as a matter of right, their evidence has to be and in all circumstances must be discarded. In the present case After careful scrutiny of the testimonies of police officials, they seem to be trustworthy and in no way has effected the creditworthiness of case of prosecution.
(b) It would be appropriate to discuss that no motive at all has been suggested to any of the prosecution witnesses regarding false implication of accused persons in the present case and nothing is shown as to why Smt. 34/37 Contd.....
35State Vs. Bhudev Pal Etc. FIR No. 607/07 Beena Devi (PW3) was interested in getting them falsely implicated or wrongly punished or how and why the investigating officer would implicate them in such a serious offence had they not been the real culprits In fact, the complainant would have been the last person to falsely implicate somebody who has not caused injuries to her or caused death of her husband. There is no justification as to why she would let the real culprits scotfree and implicate the accused persons in this case falsely. 29 (a) In the present case, the witnesses as examined by the prosecution are cogent, convincing and inspire confidence of the court in so far as they have come forward with true picture of the occurrence. The presence of accused persons Bhudev Pal and Sunil as well as that of the complainant Smt. Beena Devi (PW3) and her husband Ram Dulare (since deceased) is duly established on record which has also nowhere been disputed by the accused persons and it is also duly proved on record that at the relevant date, time and place, both the said accused persons also in furtherance of their common intention not only trespassed into the house of Ram Dulare (deceased) at which point of time, they were armed with dandas and they also caused repeated injuries on the persons, including face and head of Ram Dulare and Smt. Beena Devi due to which, Ram Dulare went into coma who was immediately shifted to hospital, where after a few days, he scumbbed to death and Smt. Beena Devi (PW3) after initial treatment was discharged 35/37 Contd.....
36State Vs. Bhudev Pal Etc. FIR No. 607/07 from the hospital .
30 Considering the totality of the facts and circumstances, on the basis of material as placed on the record, and in view of the aforesaid discussion, the court is of the considered opinion that the witnesses examined by the prosecution are cogent, convincing and inspire confidence of the court in as far as they have come forward with true picture of the occurrence. Infact testimonies of all the prosecution witnesses are not only corroborated by each other on all material aspects but is corroborated by documentary evidence as well as on all essential aspects. No artificiality or exaggeration is observed in the case of prosecution or in the testimonies of prosecution witnesses and it is rather shown that the prosecution witnesses have deposed in the court in a straightforward, cogent, convincing and natural manner whose presence at the spot, witnessing the occurrence and receiving injuries is established on record beyond reasonable doubt.
(b) Accordingly, in considered opinion of the court, the prosecution has succeeded in placing and proving on record that the accused persons namely Bhudev Pal and Sunil were well aware of their illegally entering and rather trespassing into the house of Ram Dulare (deceased) at the relevant date during night time at which point of time, they were also armed with dandas which were recovered by the police officials during investigation at their instance in pursuance of their disclosure statements with which they 36/37 Contd.....
37State Vs. Bhudev Pal Etc. FIR No. 607/07 caused injuries on the person of Smt. Beena Devi (PW3) and on the person of Ram Dulare on his head also knowing well that causing injuries in such a manner were likely to cause his death which ultimately resulted in his death. The knowledge of both accused persons is clear from their acts and they knew well that it would be certainly dangerous by inflicting injuries on head of Ram Dulare in such a manner and it can result into death also. The common intention on the part of both the said persons is clear from their actus reus in committing said offence. Accordingly, court is of the considered opinion that prosecution has succeeded in brining home guilt of accused persons Bhudev Pal and Sunil on record beyond reasonable doubt, and hence both the accused persons namely Bhudev Pal and Sunil are convicted for committing offences as punishable under sections 452/323/304(II)/34 IPC. Let they be heard on point of sentence.
Announced in the open Court (BARKHA GUPTA)
on this 23rd day of August 2011 Additional Sessions Judge - IV
Outer District
Rohini District Courts
Delhi
37/37
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