Delhi District Court
State vs . on 4 July, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 1461 of 2016
CNR NO. DLSE01-000205-2013
State
Vs.
1. Om Prakash Khanna
S/o Sh. Mehar Chand
R/o 145/146, Main Market,
Badarpur, New Delhi.
2. Vinay Kumar Khanna @ Kaku
S/o Sh. Om Prakash Khanna
R/o 145/146, Main Market,
Badarpur, New Delhi.
3. Sanjay Khanna
S/o Sh. Om Prakash Khanna
R/o 145/146, Main Market,
Badarpur, New Delhi.
4. Shammy Khanna
D/o Sh. Om Prakash Khanna
R/o 145/146, Main Market,
Badarpur, New Delhi.
FIR No. 89/2013
PS: Badarpur
U/s: 302/34 IPC
Instituted on : 06.06.2013
Committed on : 25.07.2013
Argued on : 04.07.2022
Decided on : 04.07.2022
SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 1 of 13
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2022.07.04 13:11:41
+0530
JUDGMENT
1. The homicidal death of victim Het Ram is the subject matter of present trial. The facts as discernible from record may be taken note of: On 15.03.2013, on receipt of DD No.38A, Inspector Akhileshwar Yadav alongwith ASI Bhagirath Prasad, ASI Vinod Kumar, HC Dheeraj, HC Dheer Singh and Ct. Arun reached at the spot i.e. Street opposite Masjid, Badarpur, where a crowd was gathered and they came to know that injured Het Ram had been taken to Holy Family Hospital in a private vehicle. Leaving ASI Vinod Kumar at the spot, IO alongwith ASI Bhagirath Prasad reached at Holy Family Hospital where injured was declared 'brought dead'. Thereafter, they returned to spot and recorded statement of daughter of deceased namely Kavita who stated that on 15.03.2013 at about 5.30 PM, sewer line work was going on in their house and she alongwith her father and mother were observing the work. In the meantime, Om Prakash Khanna, Sanjay, Vijay and Shammy came there and started arguing with her father. She further alleged that accused Om Prakash and Shammy started quarreling with her father and accused Sanjay and Vijay gave fist blows on the chest and stomach of her father by saying that 'aaj iska kaam tamam kar dete hain'. Accused Sanjay and Vijay had thrown brick on her father. When she alongwith her mother raised alarm, all the accused ran away from the spot. She alleged that her mother alongwith neighbourers took her father to Holy Family Hospital and later on came to know that her father had died. On these allegations, instant FIR was registered against the accused persons for offence u/s 302/34 IPC.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.07.04
13:11:52 +0530
1A. During investigation, crime team was called and the spot
was photographed from different angles. After postmortem, dead body was handed over to the family members of the deceased. IO seized the preserved exhibits, viscera box, envelope, blood in gauze, pullanda and clothes of deceased and same were deposited in malkhana. The cause of death in the instant case was opined as 'shock due to cranio-cerebral injury caused by blunt force' and it was reported that the deceased had 'ischemic heart disease'. On 01.04.2013, exhibits were sent to FSL for examination. All the accused were arrested during course of investigation.
2. Upon completion of investigation, charge sheet u/s 173 CrPC was filed against all the accused for offence u/s 302/34 IPC. After statutory compliance, present case was committed to the court of Sessions by Ld. Magistrate vide order dated 18.07.2013.
3. Vide order dated 03.05.2014, the accused were formally charged for commission of offence under section 302/34 IPC, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 23 witnesses.
5. PW1 Ms. Kavita is the complainant as well as daughter of deceased, who deposed that on 15.03.2013 at about 5-6 PM, sewer line work was going on in their house and she was present in the bathroom SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 3 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.04 13:12:01 +0530 of her house; that she heard some noise and immediately came out of her house; that she saw that her father Het Ram was lying in the gali in a pit and their neighbour Pramod was going to take her father to the hospital; that she immediately called her mother who was preparing the meals in the kitchen; that the neighbours were taking her father to the hospital; that her mother also came out of the house and went to the hospital with the aforesaid neighbours and her father; that after 2-3 hours, her mother returned back to the house and informed her that her father had expired; that many public persons gathered at their house and someone took her signatures on a blank paper for claiming the dead body of her father as the police case was registered; that on next day, the dead body of her father was received by them from Holy Family Hospital; that she had not seen who caused injuries to her father and she had not seen the incident.
5A. The witness was cross examined by Ld. Addl. PP for State with permission of the court. However, during her cross examination, she denied the suggestion of Ld. Addl. PP that accused persons attacked upon her father by saying that 'aaj iska kam tamam kar dete hain'; or that accused persons gave fist blows in the chest and stomach portion of her father and her father fell down on the ground in unconscious condition; or that Sanjay and Vijay started throwing bricks upon her father and when her father and mother raised alarm, all the accused ran away from there. She further denied the suggestion that accused persons attacked her father to commit his murder and due to the injuries caused, her father had SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 4 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.04 13:12:16 +0530 died.
6. PW2 Smt. Rama Devi deposed that on 15.03.2013 at about 5-6 PM, she was preparing meals in their kitchen; that her daughter Kavita came running to her and told told that her husband Het Ram was lying unconscious in the gali; that she immediatley rushed out to the said place in the gali and saw that some persons had removed her husband Het Ram in a vehicle and he was unconscious at that time; that thereafter he was taken to Holy Family Hospital; that she also accompanied him in the hospital and after 30 mnutes, doctors informed that her husband had expired; that her neighbour brought her to her house; that on next day they received the dead body of her husband; that she had not seen who caused injuries to her husband.
6A. The witness was cross examined by Ld. Addl. PP for State with permission of the court. However, during her cross examination, she denied the suggestion of Ld. Addl. PP that accused persons attacked her husband by saying that 'aaj iska kam tamam kar dete hain' or that accused persons gave fist blows in the chest and stomach portion of her husband and her husband fell down on the ground in unconscious condition; or that Sanjay and Vijay gave brick blows upon her husband. She further denied the suggestion that her husband had expired due to injuries caused by the accued persons.
7. PW3 HC Suraj Bhan, being the duty officer, proved the SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 5 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.04 13:12:37 +0530 copy of FIR Ex. PW3/A and his endorsement on rukka Ex. PW3/B.
8. PW4 Prem Singh and PW5 Jitender being the family members of deceased, identified his dead body.
9. PW6 Pramod Payla and PW10 Narender Bindal are the neighbourers of the deceased who took latter to the hospital after finding him lying in the street on the date of incident. On being cross examined by Ld. Addl. PP, they denied to have any knowledge about the dispute between the deceased and the accused persons over laying of sewer line.
10. PW7 Dr. Trikoti Ranjan is the concerned doctor who examined the deceased and he proved MLC Ex. PW7/A and medical certificate regarding cause of death as Ex. PW7/B.
11. PW8 Sh. Tarun Kumar is the concerned contractor who deposed about starting of laying of sewage pipeline at Pyala Mohalla on 11.03.2013.
12. PW9 Sh. Ram Singh was the concerned member of Legislative Assembly of the Badarpur Constituency at the relevant time who deposed that he is not aware about the present case. During his cross examination by Ld. Addl. PP, he denied the suggestion that a complaint was received in his office against Om Prakash that he was restraining the work of laying of sewage pipeline near the SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 6 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.04 13:12:44 +0530 house of victim and his family.
13. PW11 Dr. Asit Kumar from AIIMS proved the postmortem report Ex. PW11/A of the deceased and opined that the cause of death is 'shock due to cranio cerebral injury caused by blunt force'. He further deposed that deceased had 'ishemic heart disease'. During his cross examination, the witness admitted the suggestion of defence that it was possible that deceased had heart attack at the time of incident. He further admitted the suggestion of defence that there was no external injury mark on the body of deceased. He further admitted the suggestion of defence that he has no basis to say that the alleged head injury could be as a result of falling of his own or as a result of assault. He further deposed that it is possible that if there is a heart attack and a person falls on a projected hard surface, then similar head injury is possible.
14. PW12 is Ct. Puneet who took the photograph Ex. PW12/A1 to A8 of the spot.
15. PW13 Dr. O.P. Mohanty identified the signature of concerned doctors at the subsquent opinion Ex. PW11/B.
16. PW14 HC Dheeraj Kumar is a witness to the investigation who took the rukka for registration of FIR to the concerned police station.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.07.04
13:12:51 +0530
17. PW15 ASI Bhagirath is also a witness to the investigation who accompanied Inspector Akhileshwar to the hospital, wherein injured was declared 'brought dead' by the concerned doctor. He also deposed about arrest of two of the accused i.e. Om Prakash Khanna and Vijay Khanna by the concerned IO vide memo Ex. PW15/A and Ex. PW15/B.
18. PW16 Ct. Shashi Bala is a witness to the arrest of accused Shammy Khanna and proved her arrest memo Ex. PW16/A.
19. PW17 HC Tuli Ram deposed about deposit of exhibits/ pullanda by IO vide entry Ex. PW17/A.
20. PW18 Dr. Sanjeev Gupta deposed about forwarding of subsequent opinion Ex. PW11/B by him having been prepared by Dr. Asit Kumar.
21. PW19 Inspector Sanjay Kumar is a witness to the investigation who inspected the spot of the incident and prepared his report Ex. PW19/A.
22. PW20 Ct. Radhey Shyam is the concerned police official who took the viscera sample to the concerned FSL.
23. PW21 HC Joginder is a witness to the investigation who deposed about the arrest of accused Om Prakash Khanna, Vijay Khanna SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 8 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.04 13:13:00 +0530 and Sanjay Khanna by the IO.
24. PW22 Inspector Mahesh Kumar is the draftsman who prepared scaled site plan Ex. PW22/A.
25. PW23 is ACP Akhileshwar Yadav, the investigating officer, who deposed about the investigation conducted by him. He deposed about reaching at the spot on 15.03.2013 and thereafter reaching to the concerned hospital wherein injured was declaread as 'brought dead'. He further deposed about returning to the spot, about recording the statement of eyewitness Kavita Ex. PW1/A and preparation of rukka Ex. PW22/A. He inter alia deposed about arrest of accused Om Prakash and Vijay on 16.03.2013 and about arrest of accused Sanjay on 07.04.2013.
26. Upon conclusion of PE, statement of accused u/s 313 CrPC was recorded, wherein they claimed to be falsely implicated. Accused chose to lead defence evidence and examined three (03) witnesses in their favour.
27. DW1 is HC Dnyaneswar who brought the original Rojnamcha Register-B containing DD No. 77B dated 15.03.2013 i.e. Ex. DW1/A.
28. DW2 is Sh. Om Prakash i.e. one of the accused who examined himself in terms of section 315 CrPC. He inter alia deposed SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 9 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.04 13:13:09 +0530 that on 15.03.2013, he had gone to attend tehrvi ceremony of Smt. Bimla Devi (mother of his neighbour) and after coming back at around 6.30 PM, he came to know that his younger son Vijay had been arrested from their Chemist shop. He further deposed that neither he nor his family members were present at the place of incident at the relevant time. He further deposed that on the day of incident, his younger son Vijay was at Chemist shop and his elder son Sanjay was on complete bed rest.
29. DW3 is Sh. Vijay Khanna i.e. son of accused Om Prakash and one of the accused who deposed on lines of DW2.
30. I have heard rival contentions and perused the record.
31. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
32. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.07.04
13:13:17 +0530
33. Further, in Jose vs. Sub Inspector of Police, Koyilandy & Ors., (2016) 10 SCC 519, the Supreme Court held as under:-
"In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."
34. In the instant case, both the star witnesses of the prosecution i.e. complainant Kavita who was examined as PW1 (daughter of deceased) and PW2 Smt. Rama Devi (wife of deceased) did not support the prosecution version in the witness box. Despite their elaborate cross examination by Ld. Addl. PP for the State, nothing material could be elicited out from them. They categorically denied the suggestion given by Ld. Addl. PP that accused persons attacked the victim by saying that 'aaj iska kam tamam kar dete hain' and gave fist blows on the chest and stomach portion or that accused Sanjay and Vijay started throwing bricks upon him. Therefore, in view of the hostile version of PW1 and PW2, the whole prosecution version crumbles and nothing survives thereafter.
35. Be that as it may, in the testimony of concerned doctor (PW11 Dr. Asit Kumar) who conducted postmortem of deceased, it SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 11 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.04 13:13:26 +0530 came on record that the deceased had 'ishemic heart disease' and it is possible that deceased had heart attack at the time of incident. Further, as per the witness, no external injury mark was seen on the body of deceased and former had no basis to say that the alleged head injury could be as a result of falling of his own or as a result of assault. The witness further deposed that it is possible that if there is a heart attack and a person falls on a projected hard surface, then similar head injury is possible. Therefore, in view of the testimony of concerned doctor, the version of prosecution that the death of victim was homicidal in nature has come under cloud and therefore the possibility of victim suffering a heart attack cannot be ruled out as he had ' ishemic heart disease' and it is possible that he might have suffered the head injury due to fall upon a hard surface post suffering the said attack.
36. The testimony of other witnesses is also of no help to the prosecution and in light of testimony of PW1, PW2 and PW11, I am of the considered view that the case of prosecution has fallen like a house of cards and it cannot and rather ought not survive.
37. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, Apex court observed (Para12):-
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
SC No. 1461/16, FIR No. 89/13, PS Badarpur State vs. Om Prakash & Ors. 12 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.04 13:13:33 +0530
38. In the instant case, not a scintilla of evidence has come on record against accused. Hence, I have no hesitation in holding that prosecution has miserably failed to prove guilt of accused beyond all reasonable doubts. Therefore, all the accused deserve to be acquitted in the instant case.
39. Accordingly, all the accused stand acquitted of the charge under section 302/34 IPC. They are directed to furnish PB/SB in the sum of Rs. 20,000/- each in terms of section 437A CrPC.
40. File be consigned to record room after due compliance.
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2022.07.04 13:13:41
+0530
Announced in the open (ANUJ AGRAWAL)
Court on 4st July, 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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