Delhi District Court
State vs Ravinder Kumar Pathak on 20 September, 2022
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI. FIR NO.249/2009 CRC NO. 91662/2016 PS. OKHLA INDUSTRIAL AREA U/s. 304A IPC STATE VS RAVINDER KUMAR PATHAK JUDGMENT
A. SL. NO. OF THE CASE : 249/2009 B. DATE OF INSTITUTION : 22.12.2011 C. NAME OF THE : Deepa COMPLAINANT W/o Lt. Sh. Rakesh Kumar D. NAME OF THE : Ravinder Pathak ACCUSED S/o Sh. Tribhuvan Dutt Pathak E. OFFENCE COMPLAINED OF : U/s 304A IPC F. PLEA OF ACCUSED : Not Guilty.
G. FINAL ORDER : Acquitted. H. DATE OF SUCH ORDER : 20.09.2022
BRIEF REASONS FOR THE DECISION OF THE INSTANT CASE
1. Brief facts of the instant case are that on the intervening night of 25-26.09.2022 on receiving DD no. 38A ASI Chanderdeep along with Ct Kamlesh went to the spot which is house no.2/3 Mavi Moholla, Tehkhand Village, New Delhi.
2. During this time Inspector Shyam Sunder along with Ct Pawan also reached the spot where on the floor of Room no.72 body of deceased Rakesh Kumar Singh was found.
3. Inspector Shyam Sunder recorded the statement of the wife of the deceased namely, Deepa. She stated that she resides in Room no. 72, House no. 2/3 Mavi Moholla, Tehkhand Village, OIA-I along with her :2: family on rent. In front of their room there is Room no. 62 in which Ravinder Pathak s/o Tribhuvan Dutt Pathak resides, She further stated that on the intervening night of 25-26.06.2009 at around 12:30 am Ravinder Pathak was taking bath in front of his room. Her husband Rakesh Kumar Singh came back home after work, Ravinder Pathak asked my husband for water pipe, her husband refused to hand over the water pipe. At this Ravender Pathak took the water pipe and poured water on her husband/ deceased due to which minor scuffle ensued between them and in between this Ravinder Pathak pushed the deceased due to which the head of the deceased struck the wall. In between this their neighbor Ajay Yadav came and somehow the wife of the deceased with the help of Ajay Yadav got the deceased inside the room where he fainted. He was later on taken to Jivan Jyoti Nursing Home, where he was further referred to a hospital and when the deceased was brought to AIIMS hospital he was declared brought dead.
4. Initially, cancellation report was filed in the instant case, however further investigation was ordered by the Ld. Predecessor of this court vide order dated 13.11.2014 as no explanation to the 4 Ante mortem injuries mentioned in the post mortem report was provided.
5. Subsequently, after further investigation supplementary charge-sheet u/s 304/323 IPC, 1860 was filed against the accused and cognizance was taken and the instant case was committed to the Ld. Sessions Court vide order dated 01.07.2015 since the offence u/s 304 IPC, 1860 is exclusively triable by the Ld. Sessions Court.
6. Further, vide order dated 10.08.2015, the Ld. Sessions court recorded a finding that on the basis of the subsequent post mortem report :3: dated 18.08.2010 the accused had no intention or knowledge that his aforesaid act was going to result into the death of the deceased, therefore, the instant case does not fall u/s 304 IPC, 1860 or u/s 302 IPC, 1860. However, finding was recorded that the negligence of the accused cannot be overlooked completely at this stage and the case at best falls squarely within the preview of Section 304A IPC,1860 and hence the case was remanded back to this court.
7. On 08.10.2015 charge u/s 304A IPC, 1860 was framed against the accused to which he pleaded not guilty and claimed trial.
8. Thereafter, prosecution evidence was led and the state in its support examined total of 13 Prosecution witnesses. 8.1 PW1 Smt Deepa, complainant, in her examination in chief stated that on 25.06.2009 at around 11:30 pm, her husband came from his work and handed over his bag and vegetables to her. He asked her to hand over the children to him to play with them but she denied that since there was quarrel in the street just in front of their room. She denied her husband to play with the children as he used to play with them out of the room as she did not want her children to receive any harm due to the quarrel in the street and crowd. However, her husband went out of the house by saying that he would come back in 2-3 minutes. She further stated that accused Ravinder was taking bath in the middle of their house and his house as he was residing next to them and he was already quarreling with the persons residing nearby. She further deposed that after sometime, she came out of her room after listening the noise of accused Ravinder. At that time she saw that accused Ravinder had caught hold the neck of her husband and her husband had caught hold his hand. Her :4: husband was all wet at that time. After seeing the same she raised alarm to call somebody to get released her husband. In the meanwhile, accused pushed her husband back by holding his neck and hit him towards the wall. She stated further that thereafter, again accused took her husband and pushed him back and her husband fell down. Thereafter, third time accused again pulled her husband and pushed him back. Thereafter, her husband could not get up. She further stated that one person namely Ajay who used to take care of the rooms as per the direction of the landlady came and with the help of Ajay and some other persons of the neighborhood, she took her husband to Jeevan Jyoti hospital where the doctor told her that they can not do anything and asked her to take her husband to AIIMS. She went to AIIMS hospital and the doctor declared her husband brought dead. At that time, accused Ravinder also came there and after seeing the same, he tried to run away by saying that he is going to take an auto. However, the auto in which we came, was waiting for us. All the persons who came with her apprehended the accused and came back at the spot of incident. Thereafter, she called on 100 number.
Further, she deposed that on the next day in the morning at around 9:00 am, the police officials came and took her, accused and Ajay bhaya to PS. Police recorded her statement which is Ex.PW1/A bearing her signatures at point A. thereafter, police dropped her at her residence and got conducted the postmortem of her husband.
The photographs of the deceased lying on the floor of the room were shown to the witness and she correctly identified the same which are exhibited as Ex.PW1/B1 to Ex.PW1/B4(colly). Further, accused Ravinder was correctly identified by the witness PW1.
:5:PW1 was not cross-examined by the accused despite opportunity being given.
8.2 PW2 Sh. Ajay Yadav was examined by the prosecution and he stated that he does not remember the exact date and year but it was the month of June. Further he stated that on that day, between 11:00
-12:00 night, he was sleeping in his room and one person informed him about the quarrel which was going on between Ravinder Pathak and Rakesh. He went to ground floor and somehow managed to stop the said quarrel. Thereafter, he dropped both the accused and the deceased to their houses. Thereafter, he came back to his room. He further stated that after half an hour, wife of the deceased came to him and said that the Rakesh has lost his conscious. On this, he told her that he is drunk and let him sleep. However, after sometime, she again came to him and he went along with PW1 Deepa to her house, there he sprinkled water on the face of the deceased and tried to get him conscious. But, he remained unconscious, to this he thought that since it was summer time maybe that is why he has lost his conscious. Thereafter, he took Rakesh outside of his house. He further deposed that thereafter, he along-with Rakesh's wife, Ravinder Pathak and one person Wasid took Rakesh to Jeevan Jyoti Nursing Home where the doctors told that the patient is in critical situation and advised to took him to AIIMS hospital. Thereafter, they all took him to AIIMS hospital by auto. He further stated that there on the emergency gate, they met a doctor whom they told that Rakesh is drunk and after checking him doctor declared him brought dead. Thereafter, they all returned home. He further stated that upon coming home Ravinder made call at 100 number.
:6:Police came at the spot and took the deceased to AIIMS mortuary for conducting the postmortem. Thereafter, police called them to PS. He along-with Rakesh's wife namely Deepa went to PS where police recorded their statement.
Accused Ravinder Pathak was correctly identified by the witness PW2 in the court. Further, four photographs of Rakesh were shown to the witness and he correctly identified Rakesh in said photographs which are Ex.P1 to P4.
PW2 was cross examined by the Ld. Counsel for the accused. In his cross examination PW2 stated that he does not remember the name of the person who informed him about the quarrel but he was a tenant. When he reached on the spot, he saw that hot arguments were going on between Rakesh and Ravinder Pathak. He admitted that Rakesh was in drunken condition. He did not remember whether the police had recorded the statement of any other persons or not.
8.3 PW3 Sri Narain, Assistant Director Chemistry, FSL, Rohini, New Delhi was examination in chief wherein he proved his FSL report which is Ex.PW3/A. In this report 4 samples namely Ex.'1A', '1B', '1C' and '1D' were sent for examination to FSL. It was concluded in the report upon on chemical, TLC & GC-HS examination that Ex.1A containing stomach and piece of small intestine of the deceased and '1B' containing pieces of liver, spleen and kidney of the deceased were found to contain 'Ethyl Alcohol' further Exhibit '1C' containing blood sample(50 ml) of the deceased was examined and it was concluded that it contained Ethyl alcohol 121.6 mg/100 ml of blood and Ex.1D containing preservative :7: sample was examined and it was concluded that Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in it.
PW3 was not cross-examined by the Ld. Counsel for the accused despite opportunity being given.
8.4 PW 4 SI Ranpal Singh, No. 6567-D, Security E block, was examined in chief and he proved the copy of the FIR which is Ex. PW4/A PW4 was not cross-examined by the Ld. Counsel for the accused despite opportunity being given.
8.5 PW 5 HC Harender, No. 5087/DAP, Posted at 7th Battalion, Malviya Nagar was examined in chief he basically proved the fact that on 31.08.2009 he collected the duly sealed pullanda of Viscera of the deceased from the Malkhana, PS OIA upon instructions of Inspector Shyam Sundar and deposited the same at FSL Rohini.
PW5 was not cross-examined by the accused despite opportunity being given.
7.6 PW6 Insp. Jitender Kumar was examined in chief and he deposed that on 26.06.2009 he was posted as SI / Incharge at Crime Team, South Dist. He further stated that on that day after receiving call he along-with HC Giri Raj (photographer) went to spot i.e. H. No. 2/3, Mavi Mohalla, Tehkhand Village, Okhla where they met some police officers and public person and one dead body of deceased Rakesh was lying down in the room. Further he inspected the spot and prepared a report of the same which is Ex. PW6/A bearing his signature at point 'A'.
:8:Further, 4 photographs from judicial file were shown to the witness and he correctly identified the same. The photographs are already Ex. P1 to P4 colly.
PW6 was not cross-examined by the Ld. Counsel for the accused despite opportunity being given.
8.7 PW7 Insp. Mohinder Singh was examined in chief and he deposed that on 10.01.2010 he was posted as Insp. at PS-OIA and on that day the further investigation of the present case was marked to him. During the course of further investigation he collected the result of FSL. Thereafter he requested the Autopsy Surgeon in Mortuary of AIIMS regarding the final opinion of cause of death of deceased Rakesh Kumar and the doctor opined that the case of death in this case cannot be ascertained. The report of Doctor is now Ex. PW7/A. He further stated that he collected the photographs of spot which was taken by the crime team and during the course of investigation he also recorded the statement of witnesses u/s 161 CrPC, 1973. Further he stated that he also enquired from the public persons who were residing nearby the spot, however they did not disclose anything, he also interrogated the accused Ravinder Kumar Pathak, who was correctly identified by the witness in the court. He stated that after completion of investigation he discussed with senior officers and thereafter he prepared closure report and submitted before the court.
Witness was shown 4 photographs from judicial file and witness correctly identified the same and the same are already Ex. P1 to P4 colly.
:9:PW7 was not cross-examined by the Ld. Counsel for the accused despite opportunity being given.
8.8 PW8 ASI Giriraj was examined and he stated that on 26.06.2009 he was posted as HC at Crime Team, South Dist. On that day he along-with SI Jitender went to the spot i.e. H. No. 2/3 Mavi Mohallan, Village-Tehkhand, Okhla where they met some police officers and one dead body of deceased Rakesh was lying in the room. He further stated that he clicked the photographs of dead body at the spot.
Further 4 photographs from judicial file were shown to the witness and were correctly identified by the witness. The same are already Ex. P1 to P4 colly.
PW8 was not cross-examined by the Ld. Counsel for the accused despite opportunity being given.
8.9 PW-9 Sh. Dinesh Kumar was examined and he basically was called for examination on behalf of the Doctors involved in preparation of the medical reports annexed with the charge sheet. Since, the concerned doctors had left the concerned hospital and their whereabouts are not known to the hospital. PW 9 had stated that he worked as MRO AIIMS hospital and was familiar with the writing and signing of Dr. Sushil Sharma, Dr. Ashish Jain, Dr. Abhishek Yadav and Dr. Shaishank Pooniya. He identified the signatures of doctor Sushil Sharma on postmortem report no.576/09 dated 27.06.2009 and stated that the same was prepared by Dr. Sushil Sharma the said report is Ex.PW9/A, bearing signature of Dr. Sushil Sharma at point 'A'. PW Dinesh Kumar also identified the :10: signatures of Dr. Ashish Jain on the document dated 18.08.2010 which is "subsequent opinion on PM report no.576/09 dated 27.06.2009 of deceased Rakesh Kumar" which is already Ex.PW7/A. PW9 also identified the signatures of Dr. Abhishek Yadava and Dr. Sushant Pooniya on the document titled as "subsequent opinion for postmortem report no.576/09" which is Ex.PW9/B. Further PW9 also identified the signatures of Dr. Sushil Sharma on document titled as "subsequent opinion" which is Ex.PW9/C. PW9 was cross-examined by the Ld. Counsel for the accused and in his cross examination he admitted that the concerned reports were not prepared by the doctors in his presence and he also admitted that he is not aware about the facts and circumstances of the instant case.
8.10 PW-10 Dr. Dhruv Sharma, Asst. Director, Biology, FSL, Rohini was examined and he deposed that he examined the exhibits i.e. the Blood of the deceased and gave detailed reports regarding the same which are Ex.PW10/A and PW 10/B respectively and bearing his signatures at point A respectively.
PW10 was not cross-examined by the Ld. Counsel for the accused despite opportunity being given.
8.11 PW-11 ASI Ram Chander, No. 775/SE, was examined and he deposed that on 02.07.2009 he was posted as MHCM at PS-OIA. On that day he made entry no. 3019 in respect to deposition of case property in case FIR No. 249/09, PS-OIA, in register of year 2009 of MHCM. The copy of entry no. 3019 is Ex. PW11/A (OSR running into 2 pages).
PW11 was not cross-examined by the accused despite :11: opportunity being given.
8.12 PW-12 HC Kamlesh Meena, No. 1357/SE, was examined and he stated that on 26.06.2009 he was posted as constable at PS-OIA. He further stated that on that day IO / ASI Chanderdeep received DD No. 38A and he along-with IO went to the spot i.e. Room No. 72, H. No. 2/3, Mavi Mohalla Tehkhand Village. There IO enquired the facts from the public persons. The dead body of deceased Rakesh Kumar was lying on the floor of room No. 72 of the above said house. The scratch marks were found on the body of deceased. He further deposed that in the meantime, Insp. Shyam Sunder also came at spot. There Insp. Shyam Sunder examined the witnesses, present there. Insp. Shyam Sunder had examined the wife of deceased and recorded her statement. Further he deposed that Insp. Shyam Sunder endorsed it and prepared tehrir and handed over the same to him for registration of FIR. Thereafter PW left the spot and went to PS-OIA and got registered the present FIR through DO / ASI Ranpal Singh. DO, after registration of FIR, handed over the copy of FIR and rukka to him. He returned back at the spot and handed over copy of FIR and rukka to Insp. Shyam Sunder. Further he brought the dead body of deceased to AIIMS Mortuary.
He further stated that on 27.06.2009 the postmortem of dead body of deceased Rakesh was conducted by concerned doctors. After the postmortem, Insp. Shyam Sunder had handed over the dead body to relatives of deceased i.e. Deepa, wife of deceased Rakesh Kumar and Ajay Yadav, S/o Lal Bahadur Yadav. IO recorded his statement u/s 161 CrPC, 1973 at PS-OIA.
PW was cross-examined by the Ld. Counsel for the accused :12: wherein he admitted that he does not remember the name of persons, enquired by IO at the spot.
8.13 PW13 Dr. Abhishek Yadav, Assistant Professor, Department of Forensic Medicine, AIIMS, was examined and he deposed that on 23.12.2014, an application was submitted by Inspector Girish Kumar Singh, ATO, PS OIA for opinion regarding cause of death of deceased Rakesh Kumar Singh. He further stated that the postmortem was conducted by Dr. Sushil Sharma who had left the services of the hospital and the subsequent opinion was marked to him and Dr. Shashank Poonia for the needful. After perusal of the postmortem report, viscera analysis report and subsequent opinion upon the postmortem was given which is already Ex.PW9/B bearing his signature at point A. PW was cross examined by the Ld. Counsel for the accused wherein he stated that it is correct that as per subsequent opinion, no injury was found upon the person of the deceased which was sufficient in itself to cause death. He further stated that the cause of the death could be due to heart attack which could have resulted due to combine effect of scuffle and in take of ethyl alcohol. PW stated that it is correct that the viscera report of the deceased suggest the presence of ethyl alcohol in the blood of the deceased to the extent of 121.6 per 100 ml of blood. Further he stated that as per the PM report, the nature of the injury upon the person of the deceased is simple in nature and same is mentioned at point 5 in Ex.PW9/B.
9. After examination of the Prosecution Witnesses, statement of Accused u/s 313 CrPC, 1973 was recorded on 22.08.2019 wherein, :13: accused denied the incriminating evidence which has come on record against him and stated that the PW have falsely implicated him as he was new in the colony. He stated that he does not have anything to do with the incident and on that day he came after work and PW Ajay asked him to call at 100 number.
10. Accused in his statement stated that he wants to lead Defence Evidence, however, when after numerous opportunities accused failed to bring any defence evidence. His right was closed vide order dated 31.03.2022.
11. Thereafter, final arguments were addressed on behalf of the prosecution and the accused. Prosecution mainly contended that the testimonies of the PWs corroborate with each other and accused by his act failed to exercise any duty of care due to which death of the victim took place. Per contra, Ld. Counsel for the accused contended that the deceased was himself under heavy influence of alcohol and there is no material to suggest that the death of the victim was caused by the act of the accused.
12. The question to be determined in the instant case is that whether the prosecution has been able to prove beyond reasonable doubt the essential ingredients of Section 304A IPC.
13. It is settled principle that the general burden of proof in a criminal trial rests upon the prosecution, the prosecution has to prove it's case against the accused beyond reasonable doubt. Prosecution has to stand on it's own legs and it cannot take advantage of the weakness of the defence. The cardinal principle of criminal law that hundred guilty may go unpunished but one innocent should not be wrongfully convicted is the :14: reason that why such a strict burden of proof has been imposed on the prosecution.
14. In order to prove the guilt of the accused for an offence under section 304A IPC, the prosecution must establish that the death of the victim was caused by rash and negligent act of the accused. In Mahadev Prasad Kaushik v. State of UP & ors criminal appeal no. 1625 of 2008. The Hon'ble Apex Court while discussing Section 304A IPC at paragraph 30 held
30.In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including this Court; "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted".
15. Further to impose criminal liability under section 304A IPC 1860 the rash and negligent act must be the causa causans, it will not be sufficient that the act is causa sine qua non. The death of the victim must have been caused as a direct result of the rash and negligent act. In criminal law the degree of negligence has to be higher, mere lack of duty :15: to care will not amount to criminal negligence, there must be utter disregard to all possible consequences. Further the Hon'ble Supreme Court of India in Nanjundappa & Anr v. State of Karnataka (Criminal appeal no. 900 of 2017 held " For bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim."
16. In light of the law on the subject there is two fold consideration before this court for assessing the guilt of the accused, firstly, is to determine whether the act of the accused can termed as rash and negligent and secondly, if yes then whether the act can be considered as the primary cause for the death of the victim.
17. From the facts of the instant case and the material available on record the actus reus of the accused is the scuffle which ensued between the deceased and the accused, and during the scuffle the accused poured water on the deceased, held the neck of the deceased and pushed him towards the wall. The act of the accused was certainly rash and negligent as one must adopt a duty of care towards everyone and it can be concluded that while committing the said act the accused was aware that injury will be caused to the deceased. However, a further analysis of the evidence available on record is required to understand that whether the degree of negligence and rashness portrayed by the accused is sufficient enough to make him culpable for an offence u/s 304A IPC, also whether :16: there was an utter disregard by the accused to the fact that his act might in any probability could have resulted in the death of the victim. Further, appreciation of the evidence and the law on this point is also required to be done to understand that whether the act of the accused can be termed as 'causa causans' and the criminality under Section 304A IPC 1860 be imputed against the accused. For this purpose the scientific and the medical evidence available on record is analyzed.
18. Ex PW9/A which is the post mortem report of the deceased mentions certain external injuries, however it is pertinent to note that the post mortem report does not mention any head injury, moreover the cause of death was kept pending till the result of the viscera analysis report. Opinion on the post mortem report was given which is Ex PW9/C as per which it was mentioned that the ante mortem injuries no. 1 to 4 shown in the post mortem report is not sufficient to cause death in the ordinary course of nature further findings of the viscera analysis report mentioned that the blood of the deceased contained ethyl alcohol to the tune of 121.6 mg/100 ml of blood. It was further submitted in the post mortem report that the cause of death in this case cannot be ascertained.
19. Subsequent opinion for post mortem report which is Ex.PW 9/B specifically mentions that death of the deceased could be due to cardio pulmonary arrest, due to arrhythmia caused by combined effect of alcohol and struggle. Further at point 3 it is stated that since there are no head injuries mentioned in post mortem report so death due to collision of head against wall is not possible. It is also mentioned in Ex.PW9/B that the injuries mentioned in post mortem is simple in nature and are caused by blunt external force/object.
:17:20. PW 13 has also admitted in cross examination that no injury was found upon the person of the deceased which was sufficient to cause death in itself. He also stated that the cause of death could be due to heart attack which could have resulted due to combined result of scuffle and alcohol.
21. The only fact which has come on record to relate the act of the accused with the death of the victim is that the accused during scuffle pushed the victim towards the wall, due to which the head of the victim struck against the wall. However, it is to be noted that there are no head injuries caused to the deceased since no such injury has come in the post mortem report, therefore, in the absence of any evidence to relate the death of the victim with the act of the accused, it would not be appropriate to conclude that accused caused the death of the deceased.
22. Further, as per the testimony of PW13, Dr. Abhishek Yadav the opinion as to death which could be associated with the facts of the instant case is that the death may have been caused due to heart attack which could have resulted due to combine effect of scuffle and in take of ethyl alcohol. In such a scenario as well, it would not be proper to conclude that the death of the deceased was the direct result of the act of the accused, because in such a case it implies that had the accused not consumed alcohol his death would not have resulted on account of the mere actions of the accused. Thus, the principle of 'causa causans' is not satisfied in the instant case and it is a trite law that u/s 304A IPC, 1860 the death should be the direct result of the rash and negligent act of the accused to make him liable.
23. It must be understood that Section 304A IPC, 1860 embodies the :18: penal provision for homicide by rash and negligent act, the rashness or negligence under this section must be of a higher degree than that what is sufficient to entail civil liability. In order to establish criminal liability the facts must be such that the negligence of the accused goes beyond a mere matter of compensation between citizens and shows such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment. Further, a person can be held guilty u/s 304A IPC, 1860 when he 'caused' the death i.e. to say that the death must be the direct result of the rash and negligent act of the accused. The only allegation pertaining to the conduct of the accused is that the deceased was pushed by the accused due to which the head of the deceased struck the wal and caused his death. However, in light of the evidence brought on record specifically the scientific evidence, it is difficult to conclude that the death of the deceased was the direct result of the act of the accused. Further, the fact that accused was under heavy influence of alcohol becomes an important consideration in the instant case since heart attack which has been opined as the probable cause of death by PW13 resulted due to combined effect of scuffle and intake of ethyl alcohol.
24. It is pertinent to mention in the instant case analysis of the testimony of PW-1 Deepa and PW-2 Ajay brings out certain inconsistencies, as per PW-1 the accused pushed her husband thrice and after the third push the deceased could not get up. Thereafter, PW-1 along-with PW-2 Ajay and other neighbors took the deceased to the nursing home. However, as per PW-2, upon receiving information about the quarrel he went to the ground floor and managed to stop the quarrel and thereafter he dropped both the accused and the deceased to their :19: rooms and it was after half an hour that PW-1 came to him and told that the deceased has lost conscious. It is pertinent to mention that the statement of PW-1 is also contradictory to the statement of her recorded by the police, wherein she had mentioned that the deceased lost consciousness when after resolution of fight he went back to the room, moreover in her statement to the police PW-1 had nowhere mentioned that accused was pushed thrice. Further, as per PW-1, she made call to the police and as per PW-2 accused Ravinder made the call. Such inconsistencies certainly hampers the case of the prosecution, as it creates doubt qua the conduct of the accused.
25. It is important to mention that PW-2 Ajay in his statement recorded u/s 161 CrPC had stated that the accused for saving and releasing himself from the hands of the deceased pushed him, he had also mentioned that there was no negligence, mistake, intention or ill will on the part of the accused and neither the accused used any weapon or force upon the deceased. Further, in the testimony of PW-2 as deposed before this court there is no mention that the accused pushed the deceased towards the wall. Further, PW2 had admitted that in his cross-examination that only heated arguments were taking place when he came. This court is not inclined to solely rely on the testimony of PW-1 and hold the accused liable for offence u/s 304A IPC as firstly, there are material improvements in the testimony of PW-1 in a relation to her statement given to the police, in her testimony before the court she stated that already a quarrel was taking place outside, whereas, there is no such mention in the complaint given to the police. Moreover, there is a difference of one hour in the time of incident as mentioned in the complaint and in the testimony given in :20: the court. Further, if the testimony regarding the fact that accused pushed the deceased thrice towards the wall which resulted in his death is believed then there must have existed some head injury, however, as per the post mortem report and the opinion regarding death it is clearly ruled out that there is no head injury and so death due to collision of head against the wall cannot be caused.
26. In light of the above discussion with respect to the law on the subject, the facts of the instant case and the evidence adduced by the prosecution. This court is of the opinion that the prosecution has failed to establish its case beyond reasonable doubts.
Accordingly, accused Ravinder Kumar Pathak stands acquitted for offence u/s 304A.
Decided on 20.09.2022 announced in open court.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 20.09.2022