Delhi District Court
State vs (1)Devender S/O Sh. Sher Singh on 16 October, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.19/2012
Unique Case ID No. 02402R0096112012
FIR No.429/2011
Police Station Pandav Nagar
Under Section 304/201/342/34 IPC
State Versus (1)Devender S/o Sh. Sher Singh
R/o H.No. 60, Patparganj, Delhi.
(2)Dharmender S/o Sh. Sher Singh
R/o 259, Patparganj, Delhi.
Date of Institution : 19.04.2012
Date of judgment reserved : 11.10.2012
Date of judgment : 16.10.2012
J U D G M E N T
Two accused persons, namely, Devender and Dharmender(both in J/C) have been sent to face trial by the police of Police Station Pandav Nagar in case FIR No. 429/2011 under section 304/201/342/34 IPC.
SC No.19/2012 State Vs. Devender etc. Page 1 of 34 2 Facts, in brief, are that on 12.12.2011, on receipt of DD No.45A, SI Manish Bhati(PW9) along with Ct. Virender(PW7) reached H.No.43, Patparganj Village, Delhi and they came to know that a lady, namely, Vimla Devi had received injuries in a quarrel and she had been removed to LBS Hospital. He also found that the spot was cleaned with water but some blood clots were found at the spot. No eye witness was found at the spot. Ct. Virender was left at the spot to safeguard the place of occurrence, whereas SI Manish Bhati(PW9) reached hospital and collected MLC Ex.PW1/A of Vimla Devi prepared by Dr. Omkar Singh Tomar(PW1) on which doctor mentioned that the patient was brought dead. In the hospital, eye witness Sher Singh met the Investigating Officer and his statement Ex.PW2/A was recorded.
3 Sher Singh in his statement Ex.PW2/A to the IO (PW9) has stated that he was living at the given address with his wife Vimla and grand daughter Kajal. He was having two sons, elder one Devender and younger one Dharmender. He has stated that Devender along with his family was residing at H.No.60, Patparganj Village, whereas his younger son, namely, Dharmender was residing with his family at H.No.49, Patparganj Village. On 12.12.2011 at about 8 PM, SC No.19/2012 State Vs. Devender etc. Page 2 of 34 he along with his wife and grand daughter was present in the house and were warming their hands on chulha. At that time his elder son Devender followed by his younger son Dharmender came there and started arguing with him with regard to property. During the course of arguments, they started manhandling with him. In the meanwhile, when his wife Vimla tried to intervene, they got angry with his wife Vimla. Both the accused persons took him inside the house and locked him in a room. He tried to stop both the accused by shouting from inside the room but they started quarreling with Vimla. During quarrel, accused Dharmender caught hold of Vimla, whereas accused Devender threw a batta (stone) towards Vimla which hit on her head. Due to striking of batta (stone), Vimla fell down and started bleeding. On seeing this, both the accused ran away from the spot. Thereafter, his grand daughter Kajal opened the door and then only he came out of the room. He saw Vimla became unconscious and blood was oozing out from her head. He removed his wife Vimla to hospital with the help of his nephew Pratap(PW6) in his vehicle where Doctor declared her dead.
4 SI Manish Bhati (PW9) prepared inquest papers Ex.PW9/D and got preserved the dead body of Vimla in mortuary. SI SC No.19/2012 State Vs. Devender etc. Page 3 of 34 along with Sher Singh (PW2) reached the spot. Crime team was called at the spot and its report is Ex.PW9/C. Kajal who was present at the spot and had gone to LBS Hospital was not found there. Blood scattered at the spot was lifted in gauze piece. Piece of stone i.e. Sil lying near the tap as well as blood stained earth and earth control were lifted from the spot. On the basis of statement Ex.PW2/A of Sher Singh and MLC Ex.PW1/A of deceased, SI Manish Bhati(PW9) prepared rukka Ex.PW9/A and sent the same to PS through Ct. Virender(PW7). On the basis of rukka, FIR Ex.PW2/E was registered and its investigation was assigned to SI Manish Bhati(PW9). 5 IO (PW9) prepared site plan Ex.PW9/B. Other witnesses of the incident were tried to be searched but they could not be found. A copy of FIR was given to complainant Sher Singh. Exhibits viz. Earth control, blood stained earth, blood in gauze, piece of stone i.e. Sil Ex.P1 and clothes of deceased Ex.P2 were seized vide seizure memo Ex.PW7/A. Weapon of offence i.e. Batta was searched but it was not recovered. Thereafter, statements of Sher Singh as well as of his nephew Pratap (PW6) were recorded under section 161 Cr.P.C. SI Manish Bhati (PW9) came back to the PS and deposited the exhibits in the malkhana.
SC No.19/2012 State Vs. Devender etc. Page 4 of 34 6 On 13.12.2011, postmortem on the dead body of Vimla Devi was got conducted through Dr. B.N.Achraya(PW5) vide postmortem report Ex.PW5/A. After postmortem, doctor handed over two pulandas containing clothes of deceased and blood sample gauze piece which were seized vide seizure memo Ex.PW7/B. Dead body of deceased Vimla was identified by her husband Sher Singh vide statement Ex.PW2/C and after postmortem dead body was received by PW2 vide memo Ex.PW2/D. 7 On 28.12.2011, anticipatory bail application of accused persons was dismissed by Hon'ble court. On 2.1.2012, postmortem report of deceased was received. On 3.1.2012, accused Devender and Dharmender surrendered in Court and with the permission of Court, both of them were interrogated. Accused Dharmender made disclosure statement Ex.PW4/A, whereas accused Devender made disclosure statement Ex.PW4/B. Accused Devender was arrested vide arrest memo Ex.PW4/C and his personal search Ex.PW4/E was conducted. Accused Dharmender was arrested vide arrest memo Ex.PW4/D and his personal was conducted vide memo Ex.PW4/F. During disclosure statements, accused persons had disclosed that they threw the batta in bushes and they could get it SC No.19/2012 State Vs. Devender etc. Page 5 of 34 recovered. Thereafter, accused persons got recovered Batta Ex.P3 which was seized vide seizure memo Ex.PW4/G. 8 On 9.1.2012, the complainant Sher Singh informed the IO (PW9) that his grand daughter Kajal had returned back home, therefore, her statement was recorded. On 12.3.2012, exhibits of the case were sent to FSL, Rohini. PW8 Ms Anita Chhari examined the exhibits and gave her Biological report Ex.PW8/A and Serological report Ex.PW8/B. 9 After completion of the investigation, chargesheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
10 After hearing Ld. Counsel for the accused persons and Ld. Addl. PP for the State, charges under Sections 304/342/201/34 IPC were framed against both the accused persons which read as under : "That on 12.12.2011 at about 8.00 p.m. at H.No.43, Patparganj, Delhi within the jurisdiction of PS Pandav Nagar, you both in furtherance of your common intention committed culpable homicide not amounting to murder by giving Batta (stone) on the head of SC No.19/2012 State Vs. Devender etc. Page 6 of 34 deceased Vimla Devi which resulted into her death and thereby you both committed an offence punishable under section 304/34 IPC and within my cognizance. Secondly, on the aforesaid date, time and place, you both in furtherance of your common intention wrongfully confined complainant Sher Singh in a room of his house and thereby you both committed an offence punishable under section 342/34 IPC and within my cognizance.
Thirdly, on the aforesaid date, time and place, you both in furtherance of your common intention, after committing culpable homicide not amounting to murder of deceased Vimla Devi, caused disappearance of the evidence of said offence by washing the floor of house with intention to screen yourself and your coaccused from legal punishment and thereby you both committed an offence punishable under section 201/34 IPC and within my cognizance."
11 Both the accused pleaded not guilty to the charged framed against them and claimed trial.
12 Prosecution in order to prove its case has examined as many as 9 witnesses. PW2 Sher Singh is the complainant, PW3 Ms Kajal is alleged eye witness of the incident, whereas PW6 Pratap had allegedly removed the deceased to hospital in his vehicle. PW1 Dr. Omkar Singh Tomar had medically examined the deceased, SC No.19/2012 State Vs. Devender etc. Page 7 of 34 whereas PW5 Dr. B.N.Achraya had conducted postmortem on the dead body. PW8 Ms Anita Chhari examined exhibits in the FSL. PW4 Ct. Sandeep and PW7 Ct. Virender Kumar remained associated with the investigation conducted by Investigating Officer PW9 SI Manish Bhati.
13 After completion of prosecution evidence, statements of accused persons under Section 313 Cr.P.C. were recorded in which they have denied the case of the prosecution and have stated that they have been falsely implicated in the present case and recovery was planted upon them. Accused persons opted not to lead evidence in their defence.
14 I have heard. Ld. Addl. PP for the State as well as Ld. Counsel for accused persons. I have meticulously gone through their submissions and material available on record.
Culpable Homicide 15 Case of the prosecution is that on the day of incident, both the accused persons in furtherance of their common intention threw a batta on the head of deceased Vimla which resulted into her death and thereby they committed culpable homicide not amounting to murder of Vimla Devi.
SC No.19/2012 State Vs. Devender etc. Page 8 of 34 16 On the other hand, ld. Defence counsel has argued that there is no evidence on record that accused persons were present at the spot or that death of deceased Vimla was caused by accused persons. Prosecution has examined PW2 Sher Singh and PW3 Ms.Kajal, alleged eye witnesses of the incident, who have not supported the case of the prosecution.
17 Complainant Sher Singh has been examined as PW2 who deposed that H.No.43, Village Patparganj was his ancestral property where he was residing along with his wife. Both the accused are his sons and both of them are married. Ms. Kajal is the daughter of Dharmender. His son Devender was residing in H.No. 60, whereas Dharmender was residing in H.No.59, at village Patparganj. On 12.12.2011 at about 7.15 p.m., he had gone to weekly market leaving behind his wife Vimla. He returned back from the market at about 8.15 p.m. and his nephew Pratap met him in the house and then he took his wife Vimla to LBS Hospital where she was declared brought dead. He stated that he did not anything more about the case. He further stated that his statements Ex.PW2/A and Ex.PW2/B bear his signatures. He further stated that when he returned back home, he found his wife in unconscious and injured condition. He did not SC No.19/2012 State Vs. Devender etc. Page 9 of 34 know the reason of suffering injuries by her.
18 Witness PW2 was declared hostile by the prosecution and was cross examined by Addl PP for the State. During cross examination by Addl PP for the State, he stated that his grand daughter Kajal used to come to them occasionally. He denied having stated to the police that before suffering injuries by his wife, he along with his wife and grand daughter Kajal were sitting near chulha for taking heat or that both the accused came there, started arguing about their share in the property, started quarreling with them, his wife intervened, accused persons became angry with his wife, he was taken inside the room and locked. He also denied that accused persons took the piece of stone and threw towards his wife or that it struck against the head of his wife due to which she fell down. He also denied that accused persons ran away from the spot after seeing bleeding or that Kajal opened the door or that he took his wife to hospital. He further denied having stated to the police that when he was locked in the room, he made a call to police from his mobile. He further denied having stated to police that he raised alarm from the window of the room and saw that accused persons were causing assault upon his wife Bimla Devi or that accused Dharmender caught hold his wife SC No.19/2012 State Vs. Devender etc. Page 10 of 34 while accused Devender gave batta (piece of stone) blow on the head of his wife or that his wife fell down, blood oozed and both the accused ran away, Kajal opened the door where he was confined, he came out and saw his wife in unconscious position. He further denied that his statement was recorded at the spot after return from the hospital. He further denied that crime team was called at the spot, spot was photographed and spot was inspected by the crime team in his presence. He admitted that deceased Bimla was his second wife and accused persons were born from his first wife. He stated that he had no issue from his second wife. He denied that he had not deposed true facts in order to save accused persons. He was confronted with his statements Ex.PW2/A and Ex.PW2/B, but he denied the contents of the same.
19 During crossexamination by ld. Defence counsel, complainant Sher Singh (PW2) has admitted that he is illiterate and he was not aware about the contents of FIR. He also admitted that police obtained his signatures on some blank papers. He also admitted that when he reached home from the market, his wife was found lying near the staircase in unconscious condition and that one silbatta (stone) was lying near the body of his wife. He also SC No.19/2012 State Vs. Devender etc. Page 11 of 34 admitted that at that time, he noticed that the household articles were scattered here and there. He became unconscious after seeing his wife. He admitted that subsequently when he checked the articles, he found some of them missing. He did not know how his wife died. He stated that he made the statement voluntarily without any pressure. He admitted that he was not tutored by any person. 20 From the testimony of the complainant (PW2), it does not stand established that accused persons came to the house of the complainant at the time of incident and they caused any injury to the deceased Vimla. The complainant(PW2) has not stated anything against accused persons that they confined him to a room and gave stone blow on the head of deceased. Rather, this alleged eye witness disputed his own presence at the spot at the time of alleged incident. He has not supported the case of prosecution that he witnessed the incident. He has stated that on 12.12.2011, he left the house for market at about 7.15 p.m. and when he returned at about 8.15 p.m., he saw his wife Vimla unconscious in injured condition. He was cross examined at length by Ld. Addl PP for the State but he denied the whole case of the prosecution that at the time of incident, he was present in the house or that accused persons were the culprits. SC No.19/2012 State Vs. Devender etc. Page 12 of 34 21 It is a matter of record, FIR of the present case was registered on the basis of statement Ex.PW2/A of the complainant(PW2). But the testimony of complainant creates with regard to making of statement Ex.PW2/A. During cross examination by ld. Defence counsel, he categorically stated that he was an illiterate and was not aware what were the contents of FIR. He also stated that police obtained his signatures on some blank papers. So, in view of this testimony of the complainant, serious doubt is cast upon the case of prosecution as the genesis of FIR which was the statement Ex.PW2/A itself is in doubt.
22 It is also case of the prosecution that Kajal,grand daughter of the complainant had also witnessed the incident. Ms. Kajal (PW3) has also not supported the case of prosecution. She deposed that accused Dharmender is her father, whereas as accused Devender is her uncle (Tauji). She stated that she did not know anything about the case. However, she came to know after one day that her grand mother had died and she died due to fall. She further stated that she was not enquired by the police nor her statement was recorded.
23 She was also declared hostile and during cross SC No.19/2012 State Vs. Devender etc. Page 13 of 34 examination by Ld. Addl PP, she denied having stated to police that she was living with her grand parents since her birth. She also denied that accused persons picked up quarrel with her grand parents on the issue of property while they were taking heat from chulha. She also denied that her grand mother made accused persons understand not to quarrel. She further denied that her grand father was confined to a room or that accused Devender gave Batta blow on the head of her grand mother due to which she fell down and blood oozed out from her head. She further denied having stated to police that accused persons ran away or that she opened the room and took out her grand father Sher Singh who took Smt. Vimla to LBS Hospital. She further denied that she was frightened having seen the incident and returned back to her house where she found that blood was cleaned by someone. She has denied that she has been won over by accused persons being her father and uncle. She also denied that her grand father has settled the matter with accused persons. She voluntarily stated that there was no dispute between her grand father and accused persons. During cross examination by ld. Defence counsel, this witness admitted that she gave statement of her own without any pressure or coercion.
SC No.19/2012 State Vs. Devender etc. Page 14 of 34 24 There is nothing in the testimony of Kajal(PW3) also from which it could be inferred that accused persons entered the house of the complainant on the day of incident and gave batta blow on the head of deceased. Even the presence of this witness being eye witness of the incident has not been established. It is the case of prosecution that Kajal(PW3) was residing with her grand parents since her childhood, but no cogent and convincing evidence has been produced by the prosecution to establish this fact. Moreso, witness herself denied that she was living with her grand parents since her birth. So, the testimony of this witness is also of no help to the prosecution.
25 There is no other eye witness of the incident.
Though, prosecution has examined PW6 Pratap, nephew of the complainant Sher Singh but he has also not supported the case of the prosecution. It is not even case of the prosecution that he is an eye witness of the incident. So, his testimony is also of no relevance to connect accused persons with the crime of the present case. 26 In the present case, as per the MLC Ex.PW1/A of the deceased, she was brought to the hospital with the alleged history of assault. PW1 Dr. Omkar Singh Tomar examined the deceased on the SC No.19/2012 State Vs. Devender etc. Page 15 of 34 day of incident in LBS Hospital. He deposed that Smt. Vimla Devi was brought in the casualty by her husband Sher Singh with the alleged history of assault. He examined the patient and found that there was no pulse, no respiration, no heart sound, both pupils dilated and reaction to light was absent. Doctor further stated that ECG showed straight line and there was no sign of life. Patient was brought dead in the casualty. He prepared MLC Ex.PW1/A of the deceased and referred the same for postmortem.
27 Postmortem on the dead body of deceased was conducted by Dr. B.N. Achraya (PW5) who stated that he found three external injuries (1)Abrasion on right side face in front of right eye size 2 cm x 1 cm, (2)Abrasion on right cheek size 5 cm x 2 cm, and (3)CLW on right parietal region of size 6 cm x 2 cm bone deep. On internal examination, he found cloth underneath the scalp and skull fracture of frontal and parietal 12 x 2 cm. He opined the cause of death due to craniocerebral damage consequent to head injury. All the injuries were opined to be ante mortem in nature. Injury no.1 and 2 were opined to be caused by blunt object and injury no.3 was opined to be caused by hard and blunt object. He proved his postmortem report as Ex.PW5/A. SC No.19/2012 State Vs. Devender etc. Page 16 of 34 28 A joint reading of MLC Ex.PW1/A and postmortem report Ex.PW5/A shows that deceased Smt. Vimla Devi died due to head injury sustained by a hard and blunt object which was ante mortem in nature. The MLC as well as postmortem report proves that deceased sustained head injury which resulted into her death. But there is no evidence on record to connect accused persons with the injuries sustained by the deceased which resulted into her death. 29 The prosecution has failed to establish that accused persons committed culpable homicide of deceased not amounting to murder of Smt. Vimla Devi by giving batta blow on her head. Both star witnesses as well as alleged eye witnesses of the present case, namely, Sher Singh (PW2) and Kajal (PW3) have not supported the case of prosecution and have not stated anything with which accused persons could be linked. Consequently, accused persons are entitled for acquittal for the charge under section 304/34 IPC. Circumstantial evidence 30 There is no direct evidence to the commission of culpable homicide not amounting to murder of deceased. The alleged eye witnesses produced by the prosecution have turned hostile and have not supported the case of prosecution. In the event of failure to SC No.19/2012 State Vs. Devender etc. Page 17 of 34 prove the case by direct evidence, the prosecution can prove its case by way of circumstantial evidence.
31 The Hon'ble Apex Court in case of State of U.P. Vs. Ram Balak and Anr. 2008 (4) RCR (Criminal) 845 has observed that where the case is based on circumstantial evidence, the onus is on the prosecution to prove that the chain is complete. It was further observed that circumstantial evidence must satisfy the following tests:
1.the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2.those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3.the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4.the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be consistent with his innocent.
5.if the evidence relied on is reasonably capable of two inferences, one in favour of the accused must be accepted.SC No.19/2012 State Vs. Devender etc. Page 18 of 34
32 In the present case, the circumstances brought on record are that accused persons were present at the spot; they caused injury to the deceased; deceased was removed to hospital; deceased died due to head injury.
33 So far as first circumstance with regard to presence of accused at the spot is concerned, it has not been established on record. There are two star witnesses of the prosecution viz. Complainant Sher Singh (PW2) and Ms. Kajal (PW3). Both of them have not stated anything in their testimony that accused persons were present at the spot. PW2 has stated that on the day of incident, he left the house at about 7.15 PM for going to market and when he returned back at about 8.15 PM, he found his wife unconscious and in injured condition. He had not stated anything that he was present at the spot or that any of the accused was present at the spot who assaulted the deceased. Similarly, PW3 Kajal has stated that she did not know anything about the present case. She stated that she came to know after a day that her grand mother i.e. deceased died due to fall. She has also not stated anything that she had seen any of the accused assaulting deceased.
34 Prosecution has also examined Sh. Pratap (PW6) to SC No.19/2012 State Vs. Devender etc. Page 19 of 34 establish that accused persons were present at the spot. But this witness has also not supported the case of prosecution. During cross examination by Ld. Addl. PP for the State, witness (PW6) has denied that statement of his uncle Sher Singh was recorded by the police in which he stated that during quarrel accused persons gave batta blow on the head of Smt. Vimla Devi and due to that injury Vimla had died.
35 From the statement of above public witnesses, it has not been established that accused persons were present at the spot. There is no other evidence or material on record to establish the presence of accused persons at the spot at the time of incident. So, the prosecution has failed to prove the circumstance that accused persons were present at the spot at the time of incident. 36 The next circumstance is with regard to causing of injury by accused persons on the person of deceased. The two alleged eye witnesses i.e. PW2 Sher Singh and PW3 Kajal have not stated anything in their testimony that accused persons assaulted the deceased. Apart from these alleged eye witnesses, there is no evidence on record to establish that deceased was assaulted by accused persons. Even, the batta Ex.P3 allegedly got recovered by SC No.19/2012 State Vs. Devender etc. Page 20 of 34 accused persons was not produced before the doctor to get it correlated with the injuries sustained by the deceased. No opinion of the doctor has been placed on record to correlate the recovered batta with the injuries sustained by deceased.
37 In the absence of any evidence, the prosecution has failed to establish the circumstance of assaulting of deceased by accused persons.
38 The next circumstances are removing of deceased to hospital and death due to head injury. PW2 Sher Singh has deposed that after reaching house, he found his wife Vimla Devi unconscious and in injured condition and thereafter he removed her to hospital in Bolero vehicle. Taking of deceased to hospital by PW2 Sher Singh has been corroborated byPW6 Pratap also. He has stated that on 12.12.2011 at about 7/8 PM, he was informed that Smt. Vimla was lying unconscious. Meanwhile, his uncle Sher Singh reached there and took Smt.Vimla to LBS Hospital in Bolero Jeep where she was medically examined.
39 MLC Ex.PW1/A of deceased Smt. Vimla also establishes that she was removed to hospital by PW2 Sher Singh as it is mentioned therein that the patient Vimla Devi was brought in SC No.19/2012 State Vs. Devender etc. Page 21 of 34 hospital by her husband Sher Singh.
40 So far as cause of death due to head injury is concerned, in the MLC Ex.PW1/A it is mentioned that deceased was brought to hospital with the alleged history of assault. She was declared brought dead in the casualty an referred to forensic expect for postmortem. As per postmortem report Ex.PW5/A, there were three external injuries on the body of deceased viz. (1)abrasion on right side of face in front of right eye, (2)abrasion on right cheek, and (3)CLW on right parietal region. As per opinion of doctor (PW5), cause of death of deceased was due to craniocerebral damage consequent to head injury. All the injuries were opined to be ante mortem in nature and injury no.3 was caused by hard and blunt object.
41 So, the MLC as well as postmortem report establishes that deceased died due to head injury. But the prosecution has failed to produce any evidence or material on record to show that the accused persons assaulted the deceased or that head injury which was the cause of death of deceased was caused by the accused persons. Both the alleged star witnesses of the prosecution have not supported the case of prosecution and have not stated in their entire testimony SC No.19/2012 State Vs. Devender etc. Page 22 of 34 that accused persons were present at the spot or that the deceased was assaulted by accused persons.
42 The circumstances brought on record does not form a complete chain of circumstances to establish the guilt of accused persons. The chain of circumstances brought on record by the prosecution is week which does not show that crime of the present case was committed by the accused persons. The circumstances are not of conclusive nature and tendency. So, the prosecution has failed to establish the guilt of accused persons on the basis of circumstantial evidence.
Wrongful confinement and destruction of evidence 43 It is alleged against accused persons that on the day of incident, they entered the house of the complainant Sher Singh (PW2) and wrongfully confined him in a room and during his confinement committed culpable homicide of the deceased. It is also alleged against them that after commission of culpable homicide, they caused destruction of evidence by washing the floor of the house where blood of deceased was lying.
44 So far as commission of culpable homicide of deceased is concerned, I have already held in the above part of the SC No.19/2012 State Vs. Devender etc. Page 23 of 34 judgment that the prosecution has failed to establish that accused persons were involved in the same.
45 With regard to wrongful confinement of the complainant in a room by accused persons is concerned, the complainant(PW2) in his entire testimony has not stated anything that he was locked in a room by accused persons on the day of incident. He has demolished the case of prosecution while stating that he left the house at about 7.15 p.m. and returned back at about 8.15 p.m. and at that time, he saw that his wife was unconscious and in injured condition. During cross examination also, prosecution has failed to make out any case against accused persons that they were present at the spot at the time of incident, what to say of illegally confining the complainant in a room. Therefore, the testimony of alleged victim i.e. complainant is of no help to the prosecution.
46 Prosecution has also examined another alleged eye witness of the incident, namely, Kajal(PW3). This witness has also not supported the case of prosecution. She has denied the entire case of prosecution to the effect that she was present at the spot or that accused persons wrongfully confined her grand father in a room. 47 There is no other witness to prove the case of SC No.19/2012 State Vs. Devender etc. Page 24 of 34 prosecution that the complainant was wrongfully confined by the accused persons in a room. The complainant who allegedly wrongfully confined by accused persons in a room, has not supported the case of prosecution. Even another alleged eye witness, namely, Kajal (PW3) has not supported the allegations against the accused persons that they confined her grand father in a room. 48 It is alleged against the accused persons that after the commission of crime of the present case, they washed the floor of the where blood was lying in order to save themselves from receiving the punishment. The basis of this allegation is the statement Ex.PW3/A of Ms. Kajal (PW3) recorded under Section 161 Cr.P.C. In the statement Ex.PW3/A, it is mentioned that after declaring deceased dead in the hospital, Kajal returned back to the spot and found that somebody had cleaned the house.
49 In this statement, she had not stated that it was the accused persons who cleaned the floor of the house where blood was lying. Kajal (PW3) in her deposition has not stated anything against the accused persons. She categorically stated that she did not know anything about the case. She further stated that she was not enquired by the police nor her statement was recorded by the police. Even, SC No.19/2012 State Vs. Devender etc. Page 25 of 34 during crossexamination by Ld. Addl. PP for the State, witness Kajal (PW3) has denied having stated to police that when she returned back to her house from the hospital, she found that blood was cleaned by someone. There is no other evidence on record to establish that accused persons washed of the floor of the house with the intention to screen themselves from receiving legal punishment. 50 In the absence of any evidence, in my considered opinion, prosecution has failed to establish its case that on the day of incident, accused persons wrongfully confined complainant (PW2) in a room or that they washed the floor of the house with the intent to save themselves from receiving punishment. Therefore, accused persons are entitled for acquittal from the charge under Section 342/34 IPC as well as under Section 201/34 IPC.
Weapon of offence 51 It is alleged against the accused persons that they in furtherance of common intention gave batta (stone) blow on the head of the deceased which caused her death. It has been argued by the Ld. Addl. PP for the State that the weapon of offence i.e. batta (stone) was got recovered by accused persons, which proves the case of prosecution that with the said weapon of offence, culpable homicide SC No.19/2012 State Vs. Devender etc. Page 26 of 34 of deceased was done by the accused persons.
52 On the other hand, ld. Defence counsel has argued that the alleged batta (stone) has been planted upon the accused persons. He has further argued that the recovery of batta has not been duly proved by the prosecution as no independent witness was associated in its recovery. He has further argued that even the alleged batta was not put before the doctor to correlate it with the injuries sustained by the deceased.
53 To prove the recovery of weapon of offence i.e. batta (stone) at the instance of accused persons, IO SI Manish Bhati (PW9) has deposed that after the arrest of accused persons, they got recovered batta (stone) with which they had assaulted Smt. Vimla Devi. He had got photographed the spot from where they got recovered the stone. The stone was converted into cloth parcel and seized vide memo Ex.PW4/G. He identified the batta as Ex.P3. During crossexamination, he stated that he did not prepare the sketch of batta. He stated that recovered batta was produced before the concerned doctor to seek opinion after 1520 days. He admitted that the opinion of the doctor was not filed with the challan, rather he kept the opinion with him. He also admitted that there was no public SC No.19/2012 State Vs. Devender etc. Page 27 of 34 witness to the recovery of batta.
54 As per statement of the IO, weapon of offence i.e. batta (stone) was got recovered by accused persons and the spot from where the same was got recovered was photographed. But the IO has not filed on record any photograph to show that the same was got recovered by accused persons from such a place which was in the exclusive knowledge of the accused persons. IO has also stated that he produced the batta before the doctor to get his opinion. But the perusal of testimony of Dr. B.N. Achraya (PW5) who conducted postmortem on the dead body of deceased shows that the batta was never produced before him. In his entire testimony, doctor has not stated anything that the weapon of offence was ever produced before him or that he gave opinion with regard to same. Even otherwise, no opinion of the doctor has been filed on record. Even as per testimony of IO, no independent public person was associated with the recovery of said batta. Testimony of IO shows that though public persons present at the spot of recovery, but the same were not made attesting witness to its recovery, which creates doubt in the recovery of batta at the instance of accused persons.
55 I have gone through the judgment of our own Hon'ble SC No.19/2012 State Vs. Devender etc. Page 28 of 34 High Court in case titled Chander Pal Vs. State (Reported in 1999 (1) RCR (Criminal) 150) in which it was held that if independent witnesses are not associated in the recovery in pursuance of provisions of Section 27 of the Indian Evidence Act, then such recovery is not reliable.
56 In the present case, the batta (stone) with which the injury was allegedly caused to the deceased has been proved as Ex.P3. It is alleged that the same was got recovered by accused persons. In the present case, the batta (stone) with which the alleged injury was caused, was not produced before the doctor to get it correlated with the injuries sustained by the deceased. A perusal of chargesheet shows that the IO has mentioned therein that supplementary challan would be filed after obtaining opinion from the doctor with regard to batta (stone). But, the weapon of offence i.e. batta (stone) was never produced before the doctor to get it correlated with the injuries sustained by the deceased. No opinion from the doctor who conducted postmortem on the dead body of deceased was obtained to ascertain the fact whether from the same batta (stone), injuries sustained by deceased on her head could be possible or not.
SC No.19/2012 State Vs. Devender etc. Page 29 of 34 57 In the absence of this, in my considered opinion, the prosecution has failed to establish convincingly that the batta (stone) allegedly got recovered by accused persons was the weapon of offence with which injury was caused to the deceased. Identity of accused persons 58 The identity of accused persons being culprits is in dispute. Identification of accused persons has not been established from the testimony of alleged eye witnesses complainant (PW2) and his grand daughter Kajal (PW3) in the Court. In their entire testimony, both these witnesses have stated that they were not present at the spot at the time of incident. Complainant (PW2) has stated at the time of sustaining injury by deceased, he was out of the house to market, whereas PW3 Kajal has shown her ignorance about the incident. Both these witnesses have not stated anything in their testimony that they saw the accused persons giving batta (stone) blow on the head of the deceased. These circumstances show that accused persons have not been identified by the complainant (PW2) as well as by PW3 as culprits. Both these witnesses have not stated anything the accused persons that they gave any injury on the person of deceased on the day of incident.
SC No.19/2012 State Vs. Devender etc. Page 30 of 34 59 I have gone through the ratio of judgment in case titled Prem Singh vs. State of (N.C.T.) of Delhi (Crl. Appeal No.589 of 2002 decided by Hon'ble Supreme Court on 24.04.2009) in which it was held that when the witness/injured could not identify the accused to be the person who fired at him, accused could not have been convicted for offence charged. In the present case also, the identity of accused persons being the perpetrators of crime has not been established. Both the eye witnesses i.e. complainant (PW2) as well as his grand daughter (PW3) have not identified accused persons as the culprits.
60 I have also gone through another judgment in case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90 wherein the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version. In another case titled State of UP vs. Shri Krishan AIR 2005 SC 762, the Hon'ble Supreme Court has upheld the acquittal of accused persons while observing that eye witnesses of the incident have turned hostile and it was not a case to interfere with an order of acquittal. The ratio of above authorities is squarely applicable to the facts of the present case as both the eye witnesses have turned hostile and have not SC No.19/2012 State Vs. Devender etc. Page 31 of 34 deposed anything against the accused persons.
61 Thus, the prosecution has failed to establish the identity of accused persons beyond reasonable doubt being the persons who wrongfully confined complainant in a room or as the persons who gave batta (stone) blow on the head of the deceased, on the day of incident.
Conclusion 62 The identity of accused persons being culprits has not been established in the Court. The complainant Sher Singh (PW2) as well as another eye witness to the incident Kalaj (PW3) have not stated that any of the accused committed culpable homicide not amounting to murder of deceased on the day of incident. They have not stated anything against the accused persons that they throw any s (stone) which hit the deceased which resulted into her death. Therefore, the identity of accused persons has not been established. 63 The prosecution has further failed to establish on record beyond reasonable doubt that any of the accused was present at the spot at the time of incident. The case of the prosecution rests upon the testimony of complainant (PW2) and his grand daughter Kajal (PW3) who failed to identify accused persons as the culprits. SC No.19/2012 State Vs. Devender etc. Page 32 of 34 Complainant Sher Singh (PW2) has stated that he was not present at the house at the time of incident, rather he was on way to market and when he returned back to his house, he found his wife unconscious and in injured condition. He had not stated that accused persons gave any injury to deceased which resulted into her death. Similarly, another eye witness Kajal (PW3) has also not supported the case of prosecution. She stated that she did not know anything about the case. She had not uttered even a single word against accused persons that they caused any injury to deceased which resulted into her death. No other material or circumstance has been brought on record by the prosecution to connect accused persons with the commission of culpable homicide not amounting to murder of deceased on the day of incident.
64 The prosecution has further failed to prove that on the day of incident, complainant was wrongfully confined in a room by accused persons. Complainant (PW2) has demolished the case of prosecution by saying that he was not present at the house and when he returned back he found his wife in injured condition. He had not stated anything that he was confined in a room by accused persons or that accused persons were present in the house. Another alleged eye SC No.19/2012 State Vs. Devender etc. Page 33 of 34 witness Kajal (PW3) has also not stated anything that his grand father i.e. PW2 was confined in a room by accused persons. There is no evidence on record to establish that accused persons wrongfully confined the complainant in a room on the day of incident. 65 The prosecution has further failed to establish that blood was washed off from the floor of the house by the accused persons after commission of offence. There is no evidence or material on record to establish that the said act was done by accused persons. PW3 Kajal on whose statement said allegations are based, has not supported the case of prosecution and denied that she saw that the floor of the house was cleaned by someone.
66 In view of the above discussion, both the accused, namely, Devender and Dharmender are hereby acquitted from the charges framed against them under Section 304/342/201/34 IPC. 67 Accused persons are directed to comply with the provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 16.10.2012 District Judge & ASJ, I/C (East)
Karkardooma Courts, Delhi
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