Delhi District Court
1. Satpal Singh vs . State Of Punjab 2011(3) Rcr (Cri) 410 on 7 August, 2013
IN THE COURT OF Ms. ANU MALHOTRA : DISTRICT &
SESSIONS JUDGE (WEST) : DELHI.
Suit Case No. 26/11
Unique Case ID No. 0240IR0358122011
FIR No. 12/11, PS: Sarai Rohilla.
Under Section : 307 IPC
State
Versus
Sadhu Ram S/o Sandu Ram R/o H.No. 210, Village Jhakhoda Tehsil
Bhadurgarh, District Jajjar, Haryana.
Date of Institution : 20.07.2011
Date of reserving the Judgment : 10.07.2013
Date of pronouncement : 07.08.2013
JUDGMENT:
This judgment shall dispose of the allegations levelled against the accused Sadhu Ram S/o Shri Sandhu Ram in the chargesheet instituted on 20.07.2011 qua the alleged commission of an offence punishable under Section 307 of the IPC 1860 on the basis of investigation conducted in relation to FIR No. 12/11 PS Sarai Rohilia Railway Station. The case was committed to the Sessions Court on 11.08.2011 and the charge of allegations was framed against the accused on 24.08.2011 to the effect that on 04.05.2011 at about 04:15 SC26/2011 Page 1/37 PM near point No. 466B, KM No. 2/22 Near Delhi Kishan Central Northern Line joint within the jurisdiction of PS Sarai Rohilla Railway Station when the Rohtak Bareilly Express was passing from the Railway line, the accused had allegedly pushed Shri Vijay Nimjay (PW 6) the Permanent Wage Inspector (hereinafter referred to as the PWI) on the railway line, with such intention or knowledge and under such circumstances that if by the said act the accused had caused the death of Vijay Nimjay he would be guilty of culpable homicide not amounting to murder and had thereby committed an offence punishable under Section 307 of the IPC 1860 to which the accused pleaded not guilty and claimed trial.
As per the chargesheet submitted the prosecution cited 19 witnesses of whom 18 were examined. The statement of the accused under Section 313 was recorded on 14.12.2012 and the accused produced one witness DW 1 Shri Fateh Singh Meena in his defence. Arguments were addressed on behalf of the State by the ld. Chief Public Prosecutor Mr. Abdul Aleem and on behalf of the accused by his ld. Counsel Shri D.S. Pawaria.
Prosecution Version:
As per the prosecution version put forth in the chargesheet Head Constable Yash Pal Singh (examined as PW 15) posted at the SC26/2011 Page 2/37 Police Post Sarai Rohila, Railway Station received DD No. 14 PP and thus reached the spot in front of TCI Transport near the railway line and learnt that an injured had been taken in an ambulance to the Northern Railway Central Hospital and thus Head Constable Yash Pal Singh went there and found the injured Vijay Nimjay admitted there but the doctor opined him to be "unfit for statement" and Shri Shesh Mani Pal (examined as PW 1) met Head Constable Yash Pal Singh at the Hospital and gave a statement which was recorded by Head Constable Yash Pal Singh i.e. Ex. PW 1/A on which Head Constable Yash Pal Singh made his endorsement and gave the same to the Duty Officer for registration of the FIR, whereafter the further investigation of the FIR was entrusted to SI Rajender Singh (examined as PW 17).
As per Ex. PW 1/A the statement made by Shesh Mani Pal to Head Constable Yash Pal Singh, he was working as a trolly man PW 1/DK 2 under Shri Vijay Nimjay (examined as PW 6 i.e. the injured) and on that day i.e. 04.05.2011 he along with Shri Sudhir Kumar (Welder), the Khalasi Shri Kameshwar, Gangmen Shri Prem Singh, Anand Prasad, Gopal Singh, Hemraj and Damodar were present for the welding of the joint near post No. 466B KM No. 2/22 Near Kishan Ganj at the Middle North Line at about 03:30 PM and at that time Shri Vijay Nimjay (i.e. PW 6) asked Shri Sadhu Ram i.e. the SC26/2011 Page 3/37 accused of whatever work he had done during the day that day but the accused did not reply properly and the PWI i.e. Shri Vijay Nimjay told him that he could get him medically examined, i.e. the accused and whilst he said so, Shri Vijay Nimjay took out the mobile from his pocket and turned around and at that time the Rohtak Bareilly Express was passing by where Vijay Nimjay was standing and the Engine alongwith 4/5 coaches had passed by and at that time the accused Sadhu Ram in anger moved forward and pushed the PWI Vijay Nimjay by his hand and ran away and as a consequence of being pushed, the PWI started falling down and thus he, Shesh Mani Pal, tried to save Vijay Nimjay by his shirt but the shirt tore and PW 1 fell on the railway track as a consequence of which his left hand was cut having come under the train and he was also injured on several places. As per this statement of Shri Shesh Mani Pal PW 1, the PWI i.e. Vijay Nimjay was bleeding a lot and then he along with his associates took him out from beneath the train and after he regained consciousness and took him away from the railway track and then the PWI Vijay Nimjay gained some consciousness and asked to be seated and after he was seated Shesh Mani Pal informed the CPWI Shri Gautam and the PCR at No. 100 and then the IW Shri Sunil Dutt SC26/2011 Page 4/37 Sharma and some other persons came with an ambulance and the PWI Vijay Nimjay was taken to the Central Railway Hospital New Delhi where Shesh Mani Pal also went, where his statement was recorded.
As per the prosecution version in the chargesheet and as stated by the Investigating Officer PW 17 on the investigation having been entrusted to him, SI Rajender Singh he, alongwith the complainant had gone to the spot, prepared the site plan Ex. PW 17/A at the instance of the complainant and recorded the statement of the associates of the complainant who were working with the complainant and injured at the time of the incident and also lifted the blood stained stones and blood sample from the spot which were separately sealed with the seal of the RS and seized vide the memo Ex. PW 1/B and the accused was arrested on 22.05.2011 on the pointing out of Shesh Mani Pal who had informed at the police post that the accused was seated at the bus stand vide the arrest memo Ex. PW 1/C when his personal search was also taken and the accused is alleged to have made a disclosure statement Ex. PW 1/E and pointed to the place of the occurrence vide Ex. PW 1/F. It was also stated by the Investigating Officer PW 17 that on 28.05.2011, he took into possession the blood gauze sealed with the seal of Central Hospital Railway New Delhi and SC26/2011 Page 5/37 the sample seal vide memo Ex. PW 17/C and sent the pulandas to the FSL, the FSL reports being Ex. PW 17/C and Ex. PW 17/D with the MLC of the injured being Ex. PW 17/E, indicating that the injured had sustained grievous injury.
Prosecution Evidence As observed elsewhere hereinabove, in support of the prosecution version the State examined 18 of its 19 cited witnesses.
PW 1 Shesh Mani Pal the trolly man working with the complainant, PW 2 Shri Damodar working as the cutter for the railways, PW 3 Shri Kamleshwar the welder with the railway, PW 4 Shri Ghooran also working on duty with the railways, PW 7 Shri Sudhir Kumar welder with the railways, PW 9 Shri Prem Singh. PW 10 Shri Anand Prasad, Gangman with the railways were produced in the witness box by the State as alleged eye witnesses to the occurrence apart from the injured PW 6 Shri Vijay Nimjay, PW 1 Constable Ajay Pal, PW 12 Shri Sunil Dutt, PW 13 Shri Karan Kapoor, PW 14 HC Madhusudan, PW 15 HC Yashpal Singh, PW 16 HC Ramesh Chand, PW 17 SI Rajender Singh, PW 18 Dr. Atul Vaish were produced as the other witnesses who joined in the investigations.
SC26/2011 Page 6/37
All the aforesaid eye witnesses i.e. PW 1 Shri Shesh Manipal, PW 2 Damodar, PW 3 Shri Kamleshwar, PW 4 Shri Ghooran, PW 5 Constable Satpal, PW 7 Shri Sudhir Kumar, PW 8 HC Babu Lal, PW 9 Shri Prem Singh, PW 10 Shri Anand Parsad, have not supported the prosecution version in relation to the allegations levelled against the accused Sadhu Ram of his having pushed the injured Vijay Nimjay on having been asked by Shri Vijay Nimjay as to what duty had been performed by him and having been told that he would be got medically examined by him and none of these witnesses have stated that the injured was pushed on to the railway track when 3 to 4 coaches of the Rohtak - Bareilly express passed alongwith the engine on the railway track as a consequence of which Vijay Nimjay started falling and fell down on to the railway track and his left arm was cut off under the passing train nor have they stated that the complainant Shesh Manipal allegedly caught hold of his shirt.
The complainant Shesh Manipal through his testimony stated that on 04.05.2011 whilst he was working as the trolly man with the railways and was working with the iron smith (lohar) i.e. with Shri Damodar PW 2 near Bridge No. 2 towards the Delhi side of the Kishan Ganj Railway Station Shri Vijay Nimjay JE the Permanent SC26/2011 Page 7/37 Wage Inspector PWI came there and told him about the welding and other work to be done there and went away but as they did not find the block for welding and the persons who were to do the working were sitting idle, and that there after Shri Vijay Nimjay came in the evening hours at about 03:35 / 03:40 PM and asked them what they had done, but they informed that they had not got the the block and then Shri Vijay Nimjay asked Sadhu Ram, the accused of the work he was doing on which the accused Sadhu Ram told Vijay Nimjay that he had cut the grass and had seen and visited the area on which Vijay Nimjay told Sadhu Ram that his medical examination could be got conducted on which Sadhu Ram felt sorry and then Vijay Nimjay's mobile rang which he took out from his pocket and then Vijay Nimjay turned back in a furious manner and there was a water pipe line and he slipped and fell down on the railway line and at that time the RohtakBareilly intercity train was passing from the railway line and his left arm came under the train and got severed, whereafter they lifted Vijay Nimjay from the railway line and took him to the side after the passing of the train and Vijay Nimjay regained consciousness after 5 minutes and asked to be seated whereafter, he Shesh Mani Pal informed the Senior Officer who asked him to take Vijay Nimjay to the nearby hospital and then PW 1 Shri Shesh Manipal informed the police at No. 100 and SC26/2011 Page 8/37 after sometime the ambulance came and at that time Sunil Dutt Sharma the IW also came and Vijay Nimjay was removed to the hospital in an ambulance and was accompanied by PW 1 Shesh Manipal Ex. PW 1/A the statement of Shesh Manipal was recorded. PW 1 Shri Shesh Manipal also testified to the effect that his clothes and hands were smeared with blood, and that he also visited the spot with the police officials and the site plan was prepared at his instance, that the photographs of the spot were taken and two blood stained stones and blood samples were lifted and also put into separate pullandas and sealed and seized vide a seizure memo Ex. PW 1/B. Interalia PW 1 testified to the arrest of the accused Sadhu Ram on his identification on 22.05.2011 vide arrest memo Ex. PW 1/C when the personal search of the accused was conducted vide Ex. PW 1/D and also testified to Ex. PW 1/E being the disclosure statement made by the accused and the pointing out memo prepared of the place of the occurrence i.e. Ex. PW 1/F. Though the testimony of this witness was deferred on 22.09.2011 for production of the case property which PW 1 Shesh Mani Pal had stated that he could identify if it was shown to him, on 30.01.2012 the PW 1 was produced in the witness box again but the SC26/2011 Page 9/37 case property was not produced and the request of the prosecution for adjournment of the case property was declined.
On being cross examined on behalf of the accused, the witness has admitted that the accused was at the police post when he reached there and that the accused was not interrogated by the police in his presence and that his signatures and the signatures of the accused were obtained on the papers Ex. PW 1/C to Ex. PW 1/F on papers which were already written and they were not allowed to read the same and that the accused had not been arrested on his identification and stated that on 22.09.2011 i.e. date of his testimony in Court as PW 1 he had stated as was told to him by some police officials outside the Court room. Significantly the State has not chosen to cross examine PW 1 Shesh Manipal the complainant at all.
PW 2 Shri Damodar, the alleged eye witness has stated that on 04.05.2011 at about 03:45 PM he was cutting the railway line for welding at the Kishan Ganj Railway line and after the train passed there he heard the noise that Shri Vijay Nimjay the Permanent Wage Inspector had fallen down and Shesh Manipal telephoned the higher officers about the fall of Vijay Nimjay and Mr. Sunil IW SC26/2011 Page 10/37 reached there alongwith ambulance and boarded Vijay Nimjay to the hospital. Shri Damodar PW 2 further stated that he did not know how Vijay Nemjai fell down. On being cross examined on behalf of the State, the witness denied having stated to the Investigating Officer that on Vijay Nimjay having made inquiries from by the accused of the work done that day the accused had not given a proper reply and denied that Vijay Nimjay had told the accused that he would get him medically examined and also denied that the accused in a state of anger had pushed Vijay Nimjay and run away from the site. He further denied that Shesh Manipal caught hold of Vijay Nimjay from the shirt or tried to save him or in that process the shirt of Shri Vijay Nimjay was torn. He admitted however that Vijay Nimjay had fallen on the railway line and his left arm was severed due to coming under the train and that he received injuries on various parts of his body and was bleeding profusely. He denied that he had been won over or that he deposed falsely to save the accused.
PW 3 Shri Kamleshwar, Welder with the Railways stated that on 04.05.2011 whilst he was on duty at the railway line No. 3 at Kishan Ganj under the Bridge and was working with Sudhir, Mistry they were sitting there as the block was not available for the work and a train was passing there on line No. 1 and suddenly they heard noises SC26/2011 Page 11/37 and went there and saw Vijay Nimjay in an injured condition and he was bleeding and injured on the left arm, and the ambulance took Vijay Nimjay to the Railway Hospital and the Police made inquiries from him and recorded his the statement but that he did not know how Vijay Nimjay fell down and how he was injured on the left arm.
On being cross examined by the prosecution the witness denied that Vijay Nimjay had told the accused that he would get him medically examined and also denied that the accused in a state of anger pushed Vijay Nimjay and ran away from the spot. PW 3 also denied that Shesh Manipal i.e. PW 2 had caught hold of Vijay Nimjay from the shirt or tried to save him or that the shirt of Vijay Nimjay was torn in this process. It was admitted by PW 3 further that Vijay Nimjay had fallen down on the railway line and his left arm had been severed having come down under the train and that Vijay Nimjay had received injuries on various parts of his body and was bleeding profusely. The witness denied that he had been won over by the accused or that he was deposing falsely to save the accused.
PW 4 Shri Goran another alleged eye witness stated that he had been informed by a Rikshaw Pullar that his Saheb Mr. Vijay Nimjay had fallen down and that he further stated that Vijay Nimjay's SC26/2011 Page 12/37 arm was found severed PW 4 Shri Guran further stated that he did not see anyone pushing Vijay Nimjay. On being cross examined by the Ld. Additional Public Prosecutor, this witness denied having made any statement and denied that Ex. PW 4/A1 was the statement made by him to the Police and also denied that at about 3:50 PM, the PWI Vijay Nimjay had asked him i.e. PW 4 and the accused about the work done and that the accused Sadhu Ram did not reply properly to him. The witness further denied that when Vijay Nimjay hold Sadhu Ram that he could get him medically examined and when Vijay Nimjay took a turn while taking a mobile from his pocket, the accused Sadhu Ram pushed Vijay Nimjay and ran away as a consequence of which Vijay Nimjay fell down and his hand was severed under the passing train and denied that he had testified falsely having been won over by the accused.
PW 7 Shri Sudhir Kumar the Welder Men on duty at the Railway Line Kishan Ganj, also another alleged eye witness put forth by the State stated that Vijay Nimjay was working as a Supervisor at that time and the accused Sadhu Ram was working as the Key Man with Vijay Nimjay on 04.05.2011. He further stated that along with the labour he was waiting at the railway line and they could start their work at about 03:30 / 03:45 PM and Shri Vijay Nimjay came there and SC26/2011 Page 13/37 gave instructions to them and went near the accused Sadhu Ram and talked to him and Shri Vijay Nimjay was talking on the phone and the Bareily train was passing there, and that thereafter he did not know what happened as they were on the other side of the train and Shri Vijay Nimjay, the injured and the accused Sadhu Ram were on the opposite side and as the train was passing he could not hear as to what happened. He further stated that when the train passed people collected there and Vijay Nimjay was lying with the left hand cut and that then Shesh Manipal informed the police at No. 100 and the Senior Officer were also informed and the ambulance came and removed Vijay Nimjay to the Central Hospital of the Railways and his statement was recorded by the Police. This witness further denied that he stated to the Police that Vijay Nimjay told the accused Sadhu Ram that he would get him medically examined and also denied that in a state of anger the accused had pushed Vijay Nimjay on the railway line and had then run away. Interlia this witness denied that he had testified falsely as he had been won over by the accused.
PW 9 examined by the State was Shri Prem Singh another alleged eye witness who however stated that nothing happened in his presence and that he had not seen the incident. On being cross examined by the Chief Public Prosecutor for the State this witness SC26/2011 Page 14/37 denied having given any statement to the Police and denied that he had stated that the accused had pushed Vijay Nimjay on the railway line when the Bareily Express was passing by, though he admitted he was on duty on 04.05.2011 as a Gangman at the Old Delhi Railway Line. The witness denied that he had been won over by the accused and thus testified falsely.
PW 10 examined by the State was Shri Anand Prasad another alleged eye witness who testified to the effect that he knew both the accused Sadhu Ram who was serving as the key men in the Railways and Vijay Nimjay PWI in the Railways. He however denied that the accused had pushed PWI Vijay Nimjay on to the railwayline when the Rohtak Bareily Express was passing on the line. On being cross examined by the Chief Public Prosecutor the witness denied having given any statement to the Police though he admitted that on 04.05.2011 he was on duty as a Gangman at point No. 486 6 Km No. 2/22 near Delhi Kishan Ganj alongwith Kamlesh and Prem another eye witness. This witness also denied that PW I Vijay Nimjay asked Sadhu Ram about the work done during the day time to which the accused Sadhu Ram did not reply properly. He further denied that PWI Vijay Nimjay asked Sadhu Ram for his medical SC26/2011 Page 15/37 examination and had taken out the mobile phone for the same, and denied that in the meantime the RohtakBareily Express passed by and the accused pushed Vijay Nimjay and Vijay Nimjay fell down and received injuries. The witness denied that he had been won over by the accused and that he had deposed falsely in order to save the accused.
PW 6 the injured Vijay Nimjay in his testimony on oath testified to the effect that on 04.05.2011 whilst he was working as the supervisor and was supervising the building work at Kishan Gang, Kmr. 3/22 North Line Near Brij No. 3 between Kishan Ganj and Pul Bangas, he gave instructions to the welder Sudhir about his work. He further stated that the accused Sadhu Ram was working as a Key men and at about 3:50 PM, he, PW 6 asked Sadhu Ram the accused who was standing near Kmr. 3/22 as to what he work he had done till that time but the accused did not given any satisfactory answer, and thus he PW 6 asked him that he had told him to pull out the grass but he had not done any work.
PW 6 further stated that he went near the accused and he smelt of liquor from his mouth and he PW 6 told him that he would get him medically examined for taking liquor on duty and that there were other labourers there but they dispersed. PW 6 further testified SC26/2011 Page 16/37 to the effect that a phone call from a Senior Officer came and he turned and was attending that call and on the down line the Bareily express was coming and he PW 6 stood near the line and was talking on the phone and suddenly the accused came from his back and pushed him on the line.
PW 6 further stated that the trolly man Shesh Manipal tried to catch him by his shirt but he could not catch him and he PW 6 fell down on the line from where the Bareily express was passing and his left hand came under the train and got cut and blood started oozing out of his hand.
The witness further stated that the accused ran away and he PW 6 became unconscious and regained consciousness at the hospital. He further stated that the accused pushed with an intention to kill him. He further testified to the effect that the Police recorded his statement and on being crossexamined by the counsel for the accused stated that his statement was recorded at the hospital after 3/4 days by the police official Shri Rajender Singh. He further stated that his statement was not recorded on the date of the incident as he was serious and further stated that he did not remember the date when his statement was recorded by the police. He further stated that on the date of the incident he reached the spot at 03:20 PM and Sudhir (Aligner), SC26/2011 Page 17/37 Kamleshwar (khalasi), Damodar (hammerman) were there and that Shesh Manipal was with him i.e. PW 6 and all of them were in front of him and that there were 6 to 7 workers in all. It was admitted by PW 6 that when he was talking on the telephone to the Senior Officer, he was pushed. He denied further that the accused had given a sudden push to him and stated that the accused had intentionally pushed him. He further denied that since he was pushed from the back and had fallen down, he did not know who pushed him. Interalia PW 6 denied that someone else out of 6/7 persons standing there might have pushed him and denied that he had named the accused as the accused had an argument with him. PW 6 denied that he did not know who pushed him or that he named the accused on the basis of suspicion. Interalia PW 6 denied that nobody pushed him and denied that his leg was entangled in a pipe line or that his foot slipped. He further stated that there was no enemity between him and the accused and denied that the accused had not consumed liquor on that day. He further stated that the behaviour of the accused with him prior to the incident was normal. He further stated that he did not meet the accused after the incident but denied that he had testified falsely. SC26/2011 Page 18/37
The other witnesses examined by the State were: PW 8 Head Constable Babu Lal the Duty Officer of PS Sarai Rohilla on the date 04.05.2011 who testified to having registered the FIR copy of which is Ex. PW 8/A on 04.05.2011, copy of the said FIR was testified to be Ex. PW 8/A;
PW 11 Constable Ajay Pal posted at PS Sarai Rohilla on 04.05.2011 who took the original rukka and computerized copy of the FIR as handed over to him by the Duty Officer at about 09:30 PM that day to SI Rajender Singh for investigation at the spot and also testified to SI Rajender Singh having lifted two blood stained stones and the blood sample earth from the spot and sealed them in separate pullandas with the seal of RS and sealed vide a seizure memo on which he PW 11 stated he signed.
PW 11 further identified two blood stained stones in a plastic polythene which were collectively produced in a sealed envelope seal with the seal of the FSL of the MHCM containing one cut cloth pullanda having the seal of RS intact on it which were collectively exhibited as Ex. PW 1. This witness on being cross examined denied that the blood stained stones were not recovered from the spot in his presence;
PW 12 examined by the State was Mr. Sunil Dutt Senior SC26/2011 Page 19/37 Engineer who was posted at New Delhi Railway Station on 04.05.2011 and testified to the effect that on that day the Assistant Divisional Engineer Shri Karan Kapoor informed him telephonically that the Railway employee Vijay Nimjay had been injured near Azad Market Bridge at about 04:30 PM and thus he went to the spot and in the meantime he called the ambulance and shifted Vijay Nimjay to Railway Central Hospital and further stated that on the spot he came to know that Vijay Nimjay had been pushed by Sadhu Ram near the Railway Line and that the IO had recorded his statement.
On being crossexamined on behalf of the accused, the witness denied that no one informed him that Vijay Nimjay had been pushed by the accused and denied that for this reason he did not file any complaint and rather stated that the complaint had already been filed by Vijay Nimjay;
PW 13 examined by the State was Shri Karan Kapoor, Assistant Divisional Engineer of the Northern Railways who testified to Ex. PW 13/A being the muster sheet of the employee Sadhu Ram S/o Shri Sandhu Ram (i.e. the accused) and testified to Ex. PW 13/B, Ex. PW 13/C, Ex. PW 13/D, Ex. PW 13/E, Ex. PW 13/F, Ex. PW 13/G being the copies of the muster sheets duly attested by him bearing his signatures and seal to indicate that the employees of the SC26/2011 Page 20/37 Northern Railways, Shri Anant Prasad S/o Shri Ram Prasad Ex. PW 13/B, Shri Sudhir Kumar S/o Shri Jageshwar Ex. PW 13/C, Shri Damodar S/o Shri Haleshwar Ex. PW 13/D, Shri Shesh Manipal S/o Shri Rajmani Pal Ex. PW 13/E, Shri Kamleshwar S/o Shri Laxmi Ram Ex. PW 13/F, Shri Prem Singh S/o Shri Mann Singh and Shri Ghooran Singh S/o Shri Shiv Pal Ex. PW 13/G were on duty on 04.05.2011 near Kishan Ganj, Azad Market Bridge at Kilometer 2 x 2.
On being crossexamined on behalf of the accused this witness stated that the duty hours the key men are usually 06:30 AM to 11:00 AM and from 13:32 PM to 17:00 PM;
(the accused in the instant case was working as the key men of the railways). This witness admitted that the duty hours of the key man were not mentioned in the muster sheets but denied that the duty hours of the key men are from 05:00 AM to 03:00 PM and stated that Ex. PW 13/DA was a copy of the duty hours and that Ex. PW 13/DB was the copy of the Indian Railway Permanent Ways Manual regarding duty hours of the key men in summer and winter; PW 14 examined was Head Constable Madhusudan who testified to having collected the duly sealed pullandas and the FSL form and road SC26/2011 Page 21/37 certificate from the police station Sarai Rohilla Railway Station on 19.07.2011 which he took from the MHCM and deposited the same at the FSL Rohini and who testified to the sealed pullanda having remained in that his possession and that they were not tempered with;
PW 15 examined was Head Constable Yash Pal Singh who testified to the effect that on 04.05.2011 he was posted at the Police Post Sarai Rohilla Station and received DD No. 14 and he reached the spot from pole No. 2022 iron bridge Azad Market and the injured had been removed to the Central Northern Railway Hospital, New Delhi that he went to the hospital where injured Vijay was found in the hospital against MLC No. 73/11 and the injured was admitted in the operation theatre and was declared as 'unfit for statement,' and that after a long search the complainant Shesh Manipal met him at the hospital and he recorded his statement Ex. PW 1/A prepared the rukka Ex. PW 15/A and gave the same to the duty officer for registration of the FIR and that further investigation of the case was handed over to SI Rajender Singh. On being cross examined on behalf of the accused the witness denied that the accused was at the hospital as he had gone to see the injured and denied that the accused was not involved in the present case or that he had been falsely implicated;
PW 16 examined was Head Constable Ramesh Chand SC26/2011 Page 22/37 who testified to in his unchallenged testimony as being posted as the MHCM in PS Sarai Rohilla on 04.05.2011 and testified to two pullandas sealed with the seal of RS having been deposited by SI Rajender Singh which were entered by him, i.e. Head Constable Ramesh Chand vide entry No. 458 in register No. 19 and testified to the copy of the said register being Ex. PW 16/9, (the original register having been produced). This witness also testified to having deposited a pullanda containing a blood gauze sealed with the seal of Central Northern Railway Hospital vide No. 461 copy of which was testified to be Ex. PW 16/B and also stated that on 19.07.2011 three pullandas had been sent to the FSL through Constable Madhusudan vide RC No. 29/12 with the copy of the RC being Ex. PW 16/C. Interalia this witness stated that on 25.10.2011 the pullandas were received back from the FSL back from the FSL and so long as the pullandas remained with him they were not tampered with;
PW 17 put forth in the witness box by the State was SI Rajender Singh, the Investigating Officer of the case who testified to the effect that on receipt of the copy of the FIR Ex. PW 8/A on 04.05.2011 which was entrusted to him for investigation he along with the complainant went to the spot and prepared Ex. PW 17/A, the site plan the incident and recorded the statement of the complainant who SC26/2011 Page 23/37 was working with the accused and injured at the time of the incident and collected two blood stained stones and blood samples from the spot and which were separately sealed with the seal of RS and taken into possession vide memo Ex. PW 1/B. Interalia PW 17 identified Ex. P1 and Ex. P2 as being the blood stained stones and as Ex. P3 as being the blood sample taken by him and testified to having arrested the accused on 22.05.2014 vide Ex. PW 1/C the arrest memo having conducted the personal search of the accused vide memo Ex. PW 1/B. Interalia PW 17 testified to the effect that the accused made a disclosure statement Ex. PW 1/E and pointed out to the place of occurrence vide memo Ex. PW 1/F. PW 17 also testified to the effect that he had taken the blood gauze sealed with the seal of the Northern Railway Central Hospital, New Delhi on 28.05.2011 and the sample seal vide memo Ex. PW 17/B, that he had got sent the pullandas to the FSL and the reports of the FSL Ex. PW 17/C and Ex. PW 17/D were collected and testified to Ex. PW 17/E being the MLC of the injured. Interalia SI Rajender Singh testified to having recorded the statement of the witnesses and to having completed the investigation and filed the police report under Section 173 of the Cr.P.C. 1973. On being cross SC26/2011 Page 24/37 examined by counsel for the accused the Investigating Officer stated that he could not remember the date when the injured was declared fit for statement nor could he recall the date and time when he recorded the statement of the injured. It was testified by PW 17 further that as per the investigation conducted there was no previous enmity found between the injured and the accused. The Investigating Officer further denied that the accused was present at the spot and had met him and denied that on 22.05.2011 the accused had come of his own and surrendered. PW 17 also denied that Fatheh Singh and Brahm Dutt employees of the Railways had met him and told him that the injured fallen down of his own. PW 17 has further denied that the accused was under the influence of liquor and had gone away to the spot due to the said reason and stated that he did not know the distance between the spot and the official flat allotted to the accused and stated that he did not go to the quarter of the accused or that he did not make any inquiries about the same and denied that the accused was available in his quarter which was at a distance of about 2 kilometers. He further stated that he did not learn that the accused had no previous antecedents but stated that there was no water pipe near the spot and denied that the injured had taken a turn in anger and had fallen down on the water pipe and had thus received injuries due the same. SC26/2011 Page 25/37
Interalia the Investigating Officer denied that he had not investigated the case fairly or that he had falsely implicated the accused in the case. He further stated that the engine and 34 compartments had crossed by the time the accused pushed the injured.
PW 18 examined was Dr. Atul Vaish who testified to Ex. PW 17/E the MLC of the injured Vijay Nimjay having been prepared by him in his handwriting. The testimony of Dr. Atul Vaish has not been challenged by the accused.
Statement of the accused under Section 313 of the Cr.P.C. 1973 Through his statement under Sections 313 of the Cr.P.C. 1973 the accused has denied the incriminating evidence led against him, though he admitted that on 04.05.2011 he was working as a key men near the Kishan Ganj, Kilometer 3/22 North Line Near Brij No. 3 between Kishan Ganj and Pul Bangash and that PW 6 (i.e. the injured) was working as Supervisor. The accused has also admitted that PW 1 Shesh Manipal the Trollyman, PW 2 Damodar Welder, PW 3 Welder, PW 4 Ghooran, PW 7 Sudhir Kumar, PW 9 Prem Singh, PW 10 Anand Prasad were also working at the spot of being Railway employees. The accused further stated that it was a false case and stated that only the injured had deposed against him and had deposed SC26/2011 Page 26/37 falsely being an interested witness. Interlia the accused stated that he had gone to the hospital to see the injured and the phone of the injured rang and he took out the phone from his pocket and turned back in a furious manner and there was a pipe line and he the injured slipped and fell down on the railway line and had named him i.e. the accused and that he the only accused had an argument with him and that he was innocent.
In support of his plea of innocence the accused produced DW 1 Shri Vijay Singh Mani who stated that he on 04.05.2011 at about 03:30 to 03:45 PM he alongwith accused Sadhu Ram was on official duty and was screwing nuts and bolts on the railway track and at that time the injured who was the officer in charge of the accused came there, and that the injured asked the accused where he had performed his duty on which the accused replied that he had cut the grass and he was doing his duty and in the meantime the train came on to the track where they were standing and the injured was standing on an iron pipe, that it having been stated by the witness that the railway track was at a distance of 11 ½ feet from the place where the accused and Fateh Singh was standing. The witness further stated that suddenly a call came on the mobile of the injured and whilst he was attending to that call, out of anger he lost balance one to the pipe and SC26/2011 Page 27/37 came under the passing train.
DW 1 further stated that the accused did not push the injured under the train and stated that 2/3 compartments passed when the injured fell and that the accused also followed the injured to the hospital. DW 1 further testified to the effect that the police accompanied the injured to the hospital and stated that the house of the accused was at a distance of 2/3 kilometers from the place of occurrence and that he had seen the accused coming to the Railway Station many times after the incident. He further stated that the antecedents of the accused remained neat and clean till he was in the job and he was not involved in any type of criminal activity. On being crossexamined on behalf of the State the witness stated that he had come to the Court without Court summons on the asking of the accused, but denied that he had deposed falsely at the behest of the accused and rather stated that he was from Rajasthan whereas the accused was from Haryana. Interalia DW 1 categorically denied that the accused had pushed the injured and that the injured received injuries by the act of the accused and also denied that he had testified falsely being a colleague of the accused.
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CONTENTIONS ADDRESSED On behalf of the State it was submitted that the allegations levelled against the accused stood wholly established through the testimony of PW 6 the injured and the records produced by PW 13 Karan Kapoor and the testimony of the Police Personnel i.e. Constable Ajay Pal PW 11, PW 8 Head Constable Babu Lal and PW 13 Sunil Dutt, the Senior Officer of Vijay Nimjay who stated that he had heard that Vijay Nimjay had been pushed by the accused Near Railway Line, and the testimony of Head Constable Madhusudan who collected the pullandas from the PS and deposited the same at the FSL, PW 15 Head Constable Yashpal Singh who got the FIR registered on the statement of Shesh Manipal the complainant, DW 16 Head Constable Ramesh Chand the MHCM PS Sarai Rohilla Railway Station the custodian of the case property and who testified to the case property having remained intact and the testimony of the Investigating Officer SI Rajender coupled with the testimony of PW18 Dr. Atul Vaish, which brought forth the allegations against the accused to the hilt, that he on the date of the occurrence i.e. 04.05.2011 had pushed Vijay Nimjay, his Supervisor when he had asked him about the work SC26/2011 Page 29/37 that he had not done and had pushed whilst Vijay Nimjay was talking on the phone on to the Railway Track when the RohtakBareily Express was coming, as a consequence of which his left had had been cut and that the accused had pushed the injured with intention to kill him.
On behalf of the accused it was submitted that the testimonies of the prosecution witnesses, specifically the testimony of all the alleged eye witnesses brought forth that the testimony of the injured Vijay Nimjay examined as PW6 was not at all substantiated even remotely and that the testimonies of the witnesses who were the alleged eye witnesses to the occurrence and the testimony of DW1 which has to be read as any other testimony, brought forth the innocence of the accused and it was thus submitted on behalf of the accused that the accused was entitled to be acquitted.
Written submissions were submitted on behalf of the accused submitting interalia to the effect that the MLC on the record i.e. Ex. PW 17/E did not indicate that the injury sustained by the accused was dangerous to life and rather only stated that the injury sustained by the injured was grievous injury and thus the charge under Section 307 of the IPC 1860 could not even levelled and that the charge could only have been framed under Section 325 of the IPC SC26/2011 Page 30/37 1860.
Another submission specifically made on behalf of the accused was that the incident if any had taken place at the spur of the moment and even as per the prosecution version, it is not a case of a pre planned injury and no intention has been attributed to the accused and rather it was the complainant who was agitated and was attending a telephone call from the senior and whilst standing on the railway track he slipped from the water pipe without any fault from the accused.
It was further submitted on behalf of the accused that the reliance placed on behalf of the prosecution qua the aspect that the accused had absconded from the spot is not even remotely established in as much as the plea of the accused in defence was that he met the police at the hospital and had accompanied the injured and was coming to the railway office and did not abscond and that DW 1 had stated that the accused had not absconded and had come to the railway office and the prosecution chose not to cross examined DW 1 qua this aspect.
Another submission made on behalf of the accused was, that the complainant PW 1 Shri Shesh Manipal had categorically stated that the injured had taken out the phone from his pocket and when the injured turned back in a furious manner he slipped SC26/2011 Page 31/37 from the water pipe line and fell down on the railway line and came under the train, but despite the same he was not cross examined nor declared hostile by the prosecution and that the accused can thus take benefit of the statement of Shesh Manipal.
It was further submitted on behalf of the accused that the available record brings forth that there are two versions in this case one of Shesh Mani Pal the complainant who stated that the injured slipped from the water pipe line and that of PW 6 the injured who stated that the accused had pushed him and that the injured had himself admitted that he stood near the Railway line and had taken a turn to attend the call and the accused gave him a push from the back and it has been submitted on behalf of the accused that Shesh Manipal having not been crossexamined by the prosecution, his version would have to be believed.
It was further contended on behalf of the accused that almost all eye witnesses except the injured, an interested witness have not supported the prosecution case and thus the benefit of their statements and of a reasonable doubt would have to be given to the accused.
Another submission made on behalf of the accused was that the entire record brought forth that the accused had never indulged in SC26/2011 Page 32/37 such activities and had a good character and reliance in relation thereto was placed in Section 53 of the Indian Evidence Act 1872.
A further submission made on behalf of the accused was that the defence version of the accused through DW 1 was corroborated through the testimony of the complainant PW 1 that the injured had slipped from the water pipe line and named the accused as he was angry with the accused, and that the injured had falsely implicated the accused to claim compensation from the department.
Reliance was placed on behalf of the accused on a catena of verdicts in support of the pleas raised on his behalf of :
1. Satpal Singh Vs. State of Punjab 2011(3) RCR (Cri) 410
2. Pashora Singh & Anr. Vs. State of Punjab AIR 1993 SC 1256
3. State Through CBI Vs. Mahender Singh Dahiya I(2011) CCR 345 (SC)
4. Mangru Ram Vs. State (NCT of Delhi) 194(2012) DLT 414 (DB)
5. State Vs. Sushil Sharma 137 (2007) DLT 646 (DB)
6. Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi) (2005) 5 SCC 258
7. Gani Miah & Ors Vs. State of Tripura 2013 Cri. LJ 49
8. Ramesh Harijan Vs. State of U.P. 2012 (5) LRC 185 (SC)
9. State of U.P. Vs. Babu Ram 2000 Cri L.J. 2457
10.Kaushalya @ Tilla Vs. State 165 (2009) DLT 267 (DB)
11.Kunju Muhammed @ Khumani & Anr. Vs. State of Kerala IV (2003) SLT 852 SC26/2011 Page 33/37 ANALYSIS On a consideration of the entire available record and rival pleas submitted on behalf of either side, the Court is of the considered view that the testimonies of the prosecution witnesses Shesh Manipal the complainant i.e. PW 1, PW 2 Shri Damodar, PW 3 Shri Kamleshwar, PW 4 Shri Gooran, PW 7 Shri Sudhir Kumar, PW 9 Shri Prem Singh, PW 10 Shri Anand Prasad which do not support the prosecution version at all, in the facts and circumstances of the instant case suffice to grant the benefit of a reasonable doubt to the accused qua the allegations levelled against him of having pushed Vijay Nimjay intentionally on to the Railway Line when the Rohtak Bareily Express was passing by with intention or knowledge that under such circumstances that if he by that act caused the death of Vijay Nimjay he would have been guilty of culpable homicide amounting to murder. This is so in as much as the testimonies of PW 1 Shesh Manipal states that Vijay Nimjay had asked the accused as to what work he was doing on which Sadhu Ram had informed that he had cut the grass and had seen and visited the area and Vijay Nimjay had told Sadhu Ram that his medical examination could be conducted on which the accused Sadhu Ram had felt sorry and then the phone of Vijay Nimjay (PW 6) rang and he took out the phone from his pocket and SC26/2011 Page 34/37 turned back in a furious manner and there was a water pipe line and Vijay Nimjay slipped and fell down on the railway line and at that time the RohtakBareilly Intercity train was passing from the railway line and his left arm came under the train and got severed. The statement of the injured Shri Vijay Nimjay also indicates that at the time when Vijay Nimjay fell down he was standing near the railway line and was talking on a phone and states that suddenly from his back the accused came and pushed him on the line, and on being cross examined he admits that when he took a turn to telephone his Senior Officer, he was pushed.
The accused in his statement under Section 313 of the Cr.P.C. has stated that the phone of the injured rang and he had taken it out of his pocket and turned back in a furious manner and there was a water pipe line there and Vijay Nimjay slipped and fell down on the railway line. The statement of the defence witness DW 1 Shri Fateh Singh Meena is also to the effect that suddenly on receipt of a call on his mobile the injured whilst attending the call out of anger lost balance on the pipe line and came under the passing train and that the accused had not pushed the injured under the train. These testimonies probablise the defence of the accused that Vijay Nimjay turned furiously whilst talking on the phone, slipped on the water pipe line, SC26/2011 Page 35/37 lost his balance and fell down on the railway line while the Rohtak Bareilly Express was passing and was injured. It is significant that it had been stated as per the complaint of Shesh Manipal the complainant i.e. Ex. PW 1/A that he had tried to catch hold of the falling Mr. Vijay Nimjay, the injured when he was falling on to the Railway Line by his shirt which had torn. The said torn shirt was undoubtedly a material piece of evidence that the State could have produced to corroborate its version that Shesh Manipal had tried to prevent Vijay Nimjay from falling down when he was allegedly pushed by the accused, which the State has not chosen to produce during trial.
Taking the totality of the circumstances of the case into account as already observed hereinabove the testimonies of the prosecution witnesses PW 1, PW 2 Shri Damodar, PW 3 Shri Kamleshwar, PW 4 Shri Gooran, PW 7 Shri Sudhir Kumar, PW 9 Shri Prem Singh, PW 10 Shri Anand Prasad suffice to grant the benefit of a reasonable doubt to the accused and thus this accused is held entltled to the benefit of a reasonable doubt and is thus hereby acquitted in relation to the alleged commission of the offence punishable under Section 307 of the IPC 1860 in relation to FIR No. SC26/2011 Page 36/37 12/11 PS Sarai Rohilla Railway station in State Case No. 26/11 as the State has been unable to establish the charge of allegations levelled against the accused of the commission of an offence punishable under Section 307 of the IPC 1860 to the guilt.
In terms of Section 437A of the Cr.P.C. 1973 the bail bond submitted on 25.08.2011 is taken up, and the bail bond and surety bond and the said shall be in force for a period of six months in terms of Section 437A for the Cr.P.C. 1973, whereby the accused if required, would appear before the Higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment.
The file be consigned to the Record Room.
Announced in the Open Court (Anu Malhotra)
th
today this the 7 day of August, 2013 District & Sessions Judge
(West) Delhi
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