Delhi District Court
State vs . Rajesh @ Kaliya // Fir No. 335/07 on 26 March, 2011
1
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 200/2008
FIR No.335/2007
PS : ADARSH NAGAR
U/s. 302 IPC
STATE
VERSUS
RAJESH @ KALIYA
S/O HARI RAJBHAR
R/O. VILLAGE CHAWKI GANJOR,
PS TARVA BAZAR, TEH. LAL GANJ
AZAMGARH, U.P.
Date of Institution : 10.12.2007
Date of receipt of case in this court : 10.12.2008
Arguments heard On : 22.03.2011
Order Announced On : 26.03.2011
SHRI P.K. VERMA, APP FOR THE STATE.
MS. SADHNA BHATIA, AMICUS CURIAE FOR ACCUSED.
JUDGMENT
1. The factual matrix of the case is that on 02.07.07 at 08.20 pm, DD No. 5 was recorded by duty officer at PP N. S. Mandi PS Adarsh Nagar wherein one Satender Mishra s/o Sakaldev Mishra r/o G. No. 240 Ahata Kidara, Sadar Bazar, State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 2 Delhi informed via telephone that he had got admitted his brother in law (jeeja) HC Shiv Kant Jha in Base Hospital, Delhi cantt who was hit by someone with a danda on his head. This information was recorded and copy of same was handed over to ASI Attar Singh who proceeded towards Base Hospital along with HC Rishi Ram. On reaching Base hospital, ASI Attar Singh met Satender Mishra and recorded his statement.
2. In his statement Satender Mishra told the police that he is resident of Vill Porabiya PS Sahipara, Distt. Sitamarhi, Bihar and working as Constable in ITBP and is in Dehli for the last few days due to some official work and was residing with his brother in law HC Shiv Kant Jha who is posted as Head Constable at Police post New Sabzi Mandi. He further informed that on 01.07.07 his brother in law had left for Mandi at about 9.00 but he did not returned back to his home and when he called his brother in law at about 4.30, his brother in law informed him that he will return back home in an hour or two. But when he did not return home, he again called his brother in law HC Shiv Kant Jha on his mobile which was picked by someone else and he informed him he has picked State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 3 up the phone from Balwant Dhaba at New Sabzi Mandi and HC Shiv Kant Jha had a quarrel with someone. On hearing this he along with his nephew (bhanja) Monu reached Balwant Dhaba, New Sabzi Mandi and found that his brother in law was lying there in unconscious state. Owner of the dhaba Sai Dass told him that one boy named Rajesh @ Kaliya, who used to roam there, had hit Shiv Kant Jha with an iron rod on his head and had run away. Thereafter he got his brother in law (jeeja) admitted in Base hospital and got the present case registered.
3. Thereafter ASI Attar Singh collected the MLC of Shiv Kant Jha, prepared rukka and sent to police station Adrash Nagar through HC Rishi Ram for registration of the FIR. The investigation of this case was handed over to SI Jasmohinder Chaudhary. Investigation officer SI Jasmohinder Chaudhary prepared rough site plan and recorded statements of witnesses. During medical treatment Shiv Kant Jha expired at Base Hospital, Delhi Cantt. SI Jasmohinder Chaudhary prepared inquest papers. The post mortem on the body of deceased Shiv Kant Jha conducted on 04.07.07 at BJRM Hospital. The dead body was handed over to its claimants. As State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 4 the injured in the incident had expired, case was converted from Section 308 IPC to Section 302 IPC. Further investigation of the case was handed over to Insp. Kali Ram. During investigation accused Rajesh @ Kaliya was searched and on 06.07.07 was arrested from Nanak Piao Gurdwara, Model Town. His disclosure statement was recorded. Accused led the investigation officer to the place of occurrence pointed out towards the same and accordingly pointing out memo was prepared. Arrest memo and personal search memos of accused were prepared. Thereafter accused got recovered the weapon of offence i.e. the danda which was taken into possession by the investigation officer. Opinion regarding weapon of offence was taken from the autopsy surgeon. On 17.07.07 SI Manohar Lal Meena prepared the scaled site plan. IO recorded statements of witnesses. After completion of investigation charge sheet u/s 302 IPC filed against the accused in the court.
4. Ld. MM after compliance of section 207 Cr.PC committed the case to the court of Sessions.
State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 5
5. My learned Predecessor vide order dated 11.04.08 framed the charge against the accused for trial of offence U/s 302 IPC. The accused pleaded not guilty and claimed trial.
6. Prosecution in support of its case examined following witnesses :-
Public witnesses : -
1. PW1 Sai Dass : Eye witness.
2. PW2 Satinder Mishra : Brother in law of deceased who took him to hospital.
3. PW6 Asha Devi : Eye witness.
4. PW9 Monu Kumar Jha : Son of deceased; identified the body.
Medical Witnesses : -
1. PW3 Dr. K. Goel : Conducted postmortem.
2. PW4 Col. C. M. Trivedi : Prepared MLC at Base Hospital.
Police witnesses :-
1. PW5 SI Manohar Lal : Draftsman
2. PW7 W/ASI Manju Bala : Duty officer; recorded FIR.
3. PW8 HC Rishi Ram : took rukka to PS and got FIR registered.
4. PW10 ASI Attar Singh : Recorded statement of complainant & prepared rukka.
State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 6
5. PW11 HC Jagdish Chander : MHC (M)
6. PW12 SI Jasmohinder Chaudhari : Ist Investigation Officer.
7. PW13 Insp. Kali Ram : IInd Investigation Officer.
7. As per statement of Ld. APP Sh. P.K. Verma prosecution evidence was closed on 11.02.2011. 8. Statement of accused Rajesh @ Kaliya U/s 313 Cr.PC recorded. He wished not to examine any witness in his defence.
9. I have heard the Ld. APP for the State and Ms. Sadhna Bhatia, Amicus Curiae for accused Rajesh @ Kaliya and have gone through the record.
10. Prosecution case is based upon two eye witnesses. PW1 Sai Dass and PW6 Asha Devi. PW6 Asha Devi who appeared in witness box and deposed that she was working at the STD/PCO booth of Naresh Tayal from 8.00 am to 7.00 pm. On 01.07.07, she was present at the PCO booth. At about 2-3 State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 7 pm accused Rajesh @ Kaliya was sitting on a takhat which was lying in front of the STD/PCO booth. She has further testified that police official S. K. Jha, (deceased) came there and as accused Rajesh @ Kaliya was involved in many theft cases. S. K. Jha (deceased) inquired from accused as to why he was sitting there. Deceased S. K. Jha asked the accused to give his search and on this hot abusive talks were exchanged between them. Accused refused to give his search. Deceased further asked accused to accompany him to police post but the accused again refused to do so. Thereafter S. K. Jha went inside the STD booth to make call to police post for calling the other police officials. In the meantime, accused Rajesh Kaliya lifted a danda from Dhaba and forcibly hit S. K. Jha on his head. On receiving the head injury S. K. Jha, deceased, fell down on the floor and accused ran away towards the dhaba for lifting another danda by saying that "aaj tera kaam tamam kar doonga, tum mujhe chowki lekar kaise jaate ho". Thereafter accused tried to lift another danda but one truck driver, who was present there, did not allow him to do so.
State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 8
11. Deceased S. K. Jha ran inside the dhaba to save his life but accused followed him inside the dhaba by saying "tujhe jinda nahi chorunga". Other persons present there stopped the accused to gave another danda blow to S. K. Jha and thereafter accused ran away from the spot. She has further deposed that later on she came to know that HC S. K. Jha expired due to the injury caused on his head by accused. On 06.07.07 police came to the spot along with accused. Accused got recovered the danda used by him at the timeof incident and the same was seized vide memo Ex. PW1/A. She has further deposed that on 17.07.07 at her instance draftsman took rough notes and measurements at the spot of crime. Her statement was recorded by investigation officer.
12. In her cross examination, she has stated that accused Rajesh @ Kaliya is known to her prior to the incident as he used to reside in the park which was situated near the STD booth. She has stated that there was no other public person at the spot when the incident took place. She could not tell the name of truck driver who caught hold of the accused person. She has denied the suggestion that she was State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 9 not present at the STD booth or that she is not a witness to the incident or that accused has been falsely implicated in this case after he was lifted from Azadpur Mandi at about 7 pm in drunken condition or that she did not see the accused inflicting injuries on deceased S. K. Jha or that she has deposed falsely at the instance of police officials.
13. PW1 Sai Dass deposed that he is having a dhaba in Azadpur Sabzi Mandi by the name of Balwant Ka Dhaba. On Sunday i.e. 01.07.07 at about 2.30 pm or 2.45 pm, HC S. K. Jha, was sitting to make a call inside a STD booth, which is situated on the right side of his dhaba. Accused Rajesh @ Kalia came there and attacked with a danda on his head from his back side. HC S. K. Jha immediately got up and came running to his dhaba to save himself and hided in the dhaba but after 10-15 minutes accused Rajesh came again in front of his dhaba armed with danda and started shouting that "Usko bahar nikalo mein usko jaan se marunga". PW1 Sai Dass accordingly informed the police. He also saw one missed call on the mobile of HC S. K. Jha as the mobile was lying in the dhaba. He informed the saala (brother in law) of HC S. K. Jha, State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 10 who disclosed his name to be Satinder, that a quarrel had taken place between HC S. K. Jha and accused Rajesh @ Kalia and he requested Satinder to come and take HC S. K. Jha to hospital. Thereafter four members of family of HC S. K. Jha came to his dhaba and took injured to hospital in a TSR. He has further deposed that he narrated the entire incident that took place to Satinder and his statement was recorded by investigation officer on 04.07.07.
14. In his cross examination by Ld. Amicus Curiae PW1 Sai Dass has stated that the STD booth is situated on the opposite side of his dhaba across the road and two/three persons were present at the time of incident on the STD booth. He has further stated that although his dhaba used to remain closed on Sunday but on that day he and his brother along with two servants were present at the dhaba for cleaning . He has further stated that family members of the deceased arrived at dbaha at around 3.00 / 4.00 pm but he could not tell the exact time. He denied the suggestion that he was not present at the time of incident at his dhaba as the same was closed being Sunday or that he was later on State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 11 planted as an eye witness in this case or that he did not see accused giving any danda blow to the deceased or that he never informed the family members of the deceased about the incident and they never came to the spot or that he has been planted as eye witness as he was having good relations with the police officials.
15. Prosecution further examined PW2 Satinder Mishra who is brother in law of deceased made a call at the relevant time of incident around 4.30 p.m. as he came to Delhi for some official work and staying at the house of deceased. He deposed that PW1 Sai Dass picked up the phone of deceased and told about quarrel taken between the deceased S.K. Jha and another person. Thereafter, he along with son of deceased PW9 Monu Kumar Jha reached at the place of incidence. He further deposed that PW1 Sai Dass narrated the whole incident to him and also told that accused was the assailant who is a vagabond. PW2 Satinder Mishra and PW9 Monu Kumar Jha removed the deceased in unconscious condition to Army Base Hospital. PW2 Satinder Mishra proved his statement recorded by police at hospital State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 12 Ex.PW2/A. PW2 identified the dead body prior to and after post mortem.
16. PW9 Monu Kumar Jha also proved the identification of dead body of deceased S.K. Jha Ex.PW9/A. He deposed that PW1 Sai Dass, owner of Sai Das Balwant Dhaba told them about the quarrel.
17. PW4 Col. S.M. Trivedi proved MLC of deceased S.K. Jha and treatment papers of deceased S.K. Jha prepared by Dr. Bijoy Kumar Jha Ex.PW4/A and Ex.PW4/B (colly.).
18. PW3 Dr. K. Goel proved the the post mortem conducted by him on 04.07.07. He proved his detailed post mortem report Ex.PW3/A. As per final opinion on the basis of weapon of offence, Dr. K. Goel opined that the cause of death was brain compression consequent upon cranio-cerebral injuries as a result of hard blunt object diverted upon the head. He also gave his opinion regarding the weapon of offence that injuries sustained by deceased were possible by the danda.
State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 13
19. PW10 ASI Attar Singh who started investigation when he had received DD No.5-A Ex.PW8/A on 02.07.2007 appeared in witness box and proved the fact that he went to Base Hospital where injured S.K. Jha was declared unfit for statement. Then he recorded recorded statement of PW2 Satinder Mishra Ex.PW2/A. Thereafter, he prepared rukka and sent for registration of FIR.
20. The other police official who conducted investigation is PW12 Jasmohinder Chaudhari who deposed that on 02.07.07 he was posted as IC PP Sabzi Mandi of police station Adarsh Nagar. On that day investigation of this case was marked to him. HC Rishi Pal handed over copy of FIR and rukka to him and he along with HC Rishi Pal reached Base hospital where injured Shiv Kant Jha was admitted. He has then deposed that on 03.07.07 he received another DD no. 26 PP Ex. PW12/A regarding the death of Shiv Kant Jha.
State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 14
21. On 04.07.07 he went to hospital and removed the body to BJRM hospital for postmortem. He prepared inquest papers Ex. PW12/B to PW12/E and also recorded identification statement Ex. PW9/A and handed over the same to doctor for conducting the postmortem. After postmortem dead body was handed over to its claimants. After postmortem doctor handed over sealed parcel which was seized vide Ex. PW12/F and it was deposited with MHC (M).He has further deposed that thereafter he along with Satinder Mishra (PW2) and HC Yogesh reached the place of incident and recorded statement of eye witnesses. At the instance of Smt. Asha (PW6), he prepared site plan of the spot Ex. PW5/A. After death of the injured, Section 302 IPC was added and investigation was handed over to Insp. Kali Ram, SHO PS Adarsh Nagar.
22. He has further testified that on 05.07.07 they tried to search the accused but he could not be traced. On 06.07.07 he along with Insp. Kali Ram and HC Yogesh went to Nanak Piyau Gurudwara, Model Town in search of accused as Insp. Kali Ram had received information that accused was sitting in a park near the Gurudwara and at the instance of State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 15 secret informer accused Rajesh @ Kaliya was apprehended. Thereafter he was interrogated and arrested vide memo Ex. PW12/G and his personal search was conducted vide memo Ex. PW12/H. Disclosure statement Ex. PW12/I was also recorded. Thereafter accused led them to the place of occurrence and there investigation officer prepared the pointing out memo Ex. PW12/J. PW12 has further deposed that thereafter accused got recovered the danda, used by him in the commission of offence, recovered from the bushes near Durga Mata Mandir, TPT Centre, NS Mandi, Azadpur. The same was sealed vide memo Ex. PW6/A. His testimony further corroborated by PW13 Inspector Kali Ram who is the investigation officer and started investigation on 05.07.07. He also corroborates the fact of arrest of accused and recovery of weapon of offence at the instance of accused in the presence of PW6 Asha.
23. The testimony hereinabove of PW6 Asha and PW1 Sai Dass established that accused is a vagabond of the area and involved in petty theft cases. On 01.07.07 accused was present near PCO Booth then deceased S.K. Jha came there and enquired from the accused about his involvement in the State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 16 theft. Thereafter, hot and abusive talk exchanged between them. Accused also refused to give his search. Thereafter, deceased S.K. Jha went inside the STD Booth to make a call at police post. Meanwhile, accused forcibly attacked him with danda and on receiving the head injury deceased S.K. Jha fell down. Deceased ran away inside the dhaba of PW1 and accused also uttered words "Tujhe Jinda Nahi Chorunga" while chasing inside the dhaba and tried to gave another danda blow but persons present at the spot prevented him, thereafter, accused ran away from the spot. Later on deceased died at Base Hospital. The post mortem report by Dr. K. Goel proved that death was possible by the weapon of offence danda Ex.P-1 and the cause of death proved by him is that brain compression consequent upon carnio-cerebral injuries as result of hard blunt object diverted upon the head. The investigation officers PW12 SI Jasmohinder Choudhari and PW13 Insepctor Kali Ram proved the arrest of accused from a park, in the early hours of morning on 05.07.07. In pursuance to disclosure statement of accused the weapon of offence danda Ex.P-1 was also recovered. These facts were further proved and corroborated by PW6 Asha.
State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC 17
24. On the basis of testimonies of PW6 Asha and PW1 Sai Dass, two eye witnesses and further police officials who investigated the case especially PW12 Inspector Jasmohinder Chaudhari and PW13 Inspector Kali Ram, the prosecution have succeeded in bringing the guilt of accused home beyond reasonable doubt. Hence, accused Rajesh @ Kalia is convicted of offence under section 302 IPC. Announced in the open court (SANJAY KUMAR) today i.e. 26.03.2011. ASJ-01 (NW),ROHINI COURTS: DELHI State Vs. Rajesh @ Kaliya // FIR No. 335/07 PS : Adarsh Nagar // u/s 302 IPC