Delhi District Court
State vs . Vijay Kumar Kamat on 12 July, 2010
1
State Vs. Vijay Kumar Kamat
FIR No. 418/08
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL
SESSIONS JUDGE - IV: ROHINI (OUTER) : DELHI
Sessions Case No. : 54/09
FIR No. : 418/08
PS : S.P. Badli
Under Sections : 326/307 IPC
State Versus Vijay Kumar Kamat
S/o Sh. Gobind Kamat,
R/o H. No. 4/1687-88,
Jahangir Puri, Delhi.
Date of Committal ----- 27.01.09
Date of Institution
before this Court ----- 27.01.09
Date on which reserved
for Judgment ----- 04.06.10
Date of Judgment ----- 12.07.10
Final Order ----- Convicted
U/s 307 IPC
JUDGMENT
1. The present charge-sheet U/s 173 Cr.P.C. has been filed against the accused Vijay Kumar Kamat s/o Sh. Gobind Kamat for committing the offence as punishable U/s 307 IPC.
2. Briefly stating the case of prosecution is that on 30.09.08 at about 1/32 2 State Vs. Vijay Kumar Kamat FIR No. 418/08 10.30 am at RJ Industry, Gali No. 8, S.P. Badli, Delhi, the accused Vijay Kr. Kamat deliberately pumped air into the stomach of victim/injured Master Sadhu (who was then aged around 11 years) s/o Sh. Uday Choudhary by putting the pipe of a compressor on his anus with such intention or knowledge and under such circumstances that had by that act, master Sadhu would had died, the accused Vijay Kamat would have been guilty of culpable homicide amounting to murder.
It is further the case of prosecution that when the other labourers who were also working in the said factory at that time saw that the accused Vijay Kamat was pumping air in the said manner into the stomach of master Sadhu, they scolded and stopped him and immediately informed the Supervisor and owner of the factory and Sadhu was taken to hospital where on receiving timely treatment, he was saved. It is further the case of prosecution that somebody had informed the PCR and DD No. 15A was recorded at 12.55 pm on 30.09.08 itself whereupon the local police officials were informed who conducted necessary investigation during which the accused Vijay Kamat was arrested and other legal proceedings were conducted and after completion of investigation, the charge sheet U/s 173 Cr.P.C. was filed in the Court of Ld. concerned MM who after compliance of necessary legal provisions U/s 207 Cr.P.C committed the case to Sessions Court and vide order dated 30.03.09, charge U/s 307 IPC was served on the accused Vijay Kamat to which he had pleaded not guilty and claimed trial.
3. The prosecution in order to bring home guilt of the accused has 2/32 3 State Vs. Vijay Kumar Kamat FIR No. 418/08 examined thirteen witnesses in all namely Dr. Sudhnashu Mishra as PW1, HC Rohtash (Duty Officer) as PW2, Master Sadhu (Injured/victim) as PW3, Sh. Ram Kumar Yadav as PW4, Sh. Shravan Choudhary as PW5, Sh. Harish Gandhi as PW6, Sardar Ravinder Singh as PW7, Sh. Bhupal Singh as PW8, Sh. Mohd. Alam as PW9, HC Sunaina as PW10, Ct. Dharamvir as PW11, SI Sameer Jha as PW12 and SI Kuldeep Singh as PW13. Thereafter, statement of accused Vijay Kumar Kamat was recorded U/s 313 Cr.P.C. wherein he submitted that he is innocent and has been falsely implicated in the present case. The accused has examined Sh. Rana Pratap, Sh. Jageshwar and Sh. Rustam as DWs 1, 2 and 3 in his defence.
4. Master Sadhu (PW3 - who is the victim/aggrieved/injured, aged around 11 years) appeared in the court and prior to his examination, it was ascertained that he was able to understand the questions and was also capable of giving rational answers and he also understood the sanctity of oath after which his evidence was recorded.
Master Sadhu (PW3) has testified that about one year ago, he came to Delhi and started residing with his Jija's Jija namely Shravan Choudhary (PW5) who was running a tea shop/stall at Gali No. 8, S.P. Badli near Shamshan Ghat and he also sometimes used to help Shravan Choudhary (PW5) by distributing tea in nearby factory where some persons would also call him as Chottu as well. He has further deposed that 3/32 4 State Vs. Vijay Kumar Kamat FIR No. 418/08 on the fateful day at about 11.00 am, he had gone to the said factory at Gali No. 8, S.P. Badli at first floor with four glasses of tea where while he was distributing tea, the accused Vijay talked loosely by calling him 'Rani Darling' and when he was coming back after collecting empty glasses, his legs slipped and he fell down on the compressor due to which he received injuries and air was filled in his stomach as his pant was torn from the back whereupon he raised an alarm and Shravan Choudhary (PW5) reached there after which he was taken to hospital. He categorically deposed that the accused Vijay was using compressor on that day to remove dust from kabza and he used the compressor and filled air through his anus due to which he screamed in pain as air was filled in his stomach and Shravan Choudhary (PW5) had scolded the accused Vijay on which the accused said that he had pressed air into his anus only jokingly. He also deposed that Rustam, Alam and Rana Pratap were also working there.
During leading questions put by Ld. APP, he stated that before he could say anything, the accused Vijay had already pumped air in his stomach through his anus and firstly he was taken to the nursing home and thereafter to a big hospital.
During cross examination on behalf of the accused Vijay Kamat, he stated that on the said day, he had gone to the shop i.e. tea stall of Shravan to deliver him the meals and also that he had been knowing the accused Vijay Kamat prior to the occurrence as he used distribute tea in the factory and fairly conceded that the accused Vijay had no enemity with him.
4/32 5State Vs. Vijay Kumar Kamat FIR No. 418/08 During suggestions given by Ld. Defence counsel, he admitted that he slipped at the pipe of compressor which was in the hand of accused Vijay and the air got pumped into his stomach through his anus.
Master Sadhu was re-examined by Ld. APP during which he stated that the accused Vijay had not intentionally filled air in his stomach and during cross examination by Ld. APP, he stated that he felt pain and cried at the time of incident. He also stated that his earlier statement as recorded in the court on 04.06.09 (wherein he has categorically stated that the accused had filled the air in his stomach by compressor through his Anus) is correct and during cross examination by Ld. Defence counsel, he denied if the said statement dt. 04.06.09 is a tutored one.
5. Dr. Sudhanshu Mishra (PW1) has testified that on 30.09.08 at about 1.30 pm, he examined Sadhu aged around 11 years with alleged history of compressed air injury was through anus by a factory worker at about 10.30 am. He also deposed that the patient was immediately given medication who was unfit for statement till 4.00 pm and injuries on his person were dangerous. He proved the detailed MLC of Master Sadhu as Exhibit PW1/A and testified that he remained in the hospital till 10.10.08 and was discharged by summary register Exhibit PW1/B and the detailed treatment has been proved on record as Exhibits PW1/C1 to PW1/C8.
5/32 6State Vs. Vijay Kumar Kamat FIR No. 418/08 He was not cross examined by the accused and accordingly the accused Vijay Kamat has admitted in totality regarding admission of master Sadhu (PW3) in the hospital with dangerous injuries and has preferred not to dispute the MLC and other medical record of the victim and also that on 30.09.08, Sadhu (PW3) was brought at the said hospital with alleged history of compressed air into his stomach through anus by factory worker at about 10.30 am.
6. Sh. Bhupal Singh (PW8) has testified that he is competent and authorised for testing the pressure vessels/plant U/s 31 of the Factories Act, 1958 by Delhi Government. He also deposed that on 07.10.08, he visited M/s RJ Industries at Khasra No. 22/9/3, Gali No.8, Samaipur Industrial Area, Delhi-42 and tested the compressor and receiver for thickness and safety valve and after the evaluating the equipment to be safe, he issued the certificate Exhibit PW8/A regarding compressor installed in the said factory. He also testified that the pipe of the compressor cannot be automatically inserted into the anus and accordingly the air cannot be automatically filled in the stomach through anus. He also deposed that it is not possible that if somebody would fall on the compressor or its pipe, the air would be automatically filled in his stomach through anus and also deposed that the pipe which was connected with the compressor was a flexible pipe and the said pipe is connected with the point of use 6/32 7 State Vs. Vijay Kumar Kamat FIR No. 418/08 (multeferious use) and air is allowed to flow through the pipe only through a controlled valve and not otherwise.
During cross examination by the accused Vijay, he stated that no nozzle was attached with the open end of the pipe of compressor and denied if there was any metal nozzle to enhance the working and efficiency of pipe of compressor and volunteered that the nozzles are required for the pipes which are used for pressure cleaning with water as water is not compressable and by affixing a nozzle, the velocity of the pipe increases. He also stated that it is not possible that if one person holds that pipe and one falls on that pipe, it would automatically be inserted into the anus and denied if his report Exhibit PW8/A is false.
7. Sardar Ravinder Singh (PW7-Owner of the facotry) has testified that he is the owner of RJ Industry, Gali No. 8, Khasra No. 22/9/3, S.P. Badli where door hinges/kabza were being manufactured for which he obtained licence from the Government and the said premises was taken by him on rent from Sh. Ram Kumar Yadav (PW4). He further testified that the Attendance Register was also maintained in his factory regarding attendance of workers and he proved the photocopy of said register pertaining to the month of September 2008 regarding date of occurrence as Exhibit PW7/A and also that he was telephonically informed that the accused Vijay had filled air in the stomach of one Chhotu through his anus who used to supply tea to the workers and at the relevant time, the 7/32 8 State Vs. Vijay Kumar Kamat FIR No. 418/08 accused Vijay was working in his factory and also deposed that in Exhibit PW7/A, the name of accused Vijay was mentioned at point 'A'. He also deposed that Chhotu was admitted in the hospital.
During cross examination by the accused, he stated that the accused Vijay was employed by him about three months prior to the incident and the working hours were from 9.00 am to 5.00 pm and also that Wednesday was a weekly holiday, however the day on which the said incident took place was not Wednesday. He also stated that he received intimation about the occurrence at about 11.00 am on his mobile phone no. 9873908043 and he reached to the factory within about 10 minutes at which point of time, the victim/injured Chhotu, accused Vijay and other workers were also present and he alongwith Harish Gandhi (PW6) and other worker namely Alam took Chhotu to the hospital and police officials also reached there as informed by the doctor. He stated that they had not immediately informed the police officials after the occurrence as the child (Chhotu) was in serious condition and it was an emergency to firstly take him to the hospital and denied if the accused Vijay Kamat was innocent and so they did not call the police officials.
During re-examination by Ld. APP, he stated that "it is correct that I received information on mobile phone that the accused Vijay had inserted the pipe of the compressor through anus and filled the air in the stomach of Chhotu. It is also correct that the pipe of the compressor 8/32 9 State Vs. Vijay Kumar Kamat FIR No. 418/08 installed in my factory cannot automatically go in the stomach through anus if one falls on the pipe and it can go in the stomach through anus if the pipe is forcibly inserted or air would be filled in the stomach through anus only if it is pumped".
During further cross examination by Ld. Defence counsel, he stated that the air cannot be filled in the stomach through anus until and unless the air compressor is pumped by somebody with force and the air cannot be automatically filled in the stomach if one falls on the air compressor.
8. Sh. Ram Kumar Yadav (PW4) has testified that he had rented out his premises at Khasra No. 22/9/3 in Gali No. 8, S.P. Badli to Sardar Ravinder Singh (PW7) where he had been running a factory in the name of RJ Kabza Industry.
The accused has nowhere disputed if the said factory was not in existence at the relevant time or that it was not run by Sardar Ravinder Singh (PW7).
9. Sh. Harish Gandhi (PW6- Supervisor of the factory) has testified that he had been working as a Supervisor in RJ Industry at the relevant time where door hinges/kabza were being manufactured and the said factory was owned by Sardar Ravinder Singh (PW7) He also deposed that in the said factory, dust was being removed with the help of compressor and on 9/32 10 State Vs. Vijay Kumar Kamat FIR No. 418/08 30.09.08, Alam (PW9) had informed him regarding filling up of air by compressor in the stomach of Sadhu (PW3) @ Chhotu. He further testified that Sadhu (PW3) was taken to Raj Nursing Home where he was declared serious and thereafter so he was taken to Pantamed Hospital and he also informed Sardar Ravinder (PW7) in this regard. He also deposed that Sadhu (PW3) was working at the tea stall of Shravan Choudhary (PW5) who would deliver tea to the workers of the said factory.
During cross examination by Ld. APP, he stated that "it is correct that if a person falls on the pipe of compressor, it would not be inserted in the stomach through anus. It is also correct that the pipe of the compressor will go inside the stomach through anus if it is inserted with force...." He also stated that "It is also correct that pipe of compressor will enter into the anus if anybody would forcibly put it there and not otherwise".
During cross examination by the accused Vijay, he stated that Sadhu (PW3) was also called in the name of Chhotu and he does not know whether it was the accused Vijay who filled air in his stomach, however he admitted that he had handed over the photograph Exhibit PW6/A to the police officials.
10. Sh. Shravan Choudhary (PW5-who is the relative of master Sadhu) has testified that on 30.09.08, he had sent Sadhu (PW3) to deliver tea 10/32 11 State Vs. Vijay Kumar Kamat FIR No. 418/08 at the said factory to its workers as he used to run a tea shop and at about 10.30 am, Alam (PW9) and Vijay had brought Sadhu (PW3) from the said factory and the accused Vijay told him that due to mistake, he had filled air with compressor in the stomach of Sadhu (PW3) through anus and thereafter they took him to hospital as he got unconscious.
During cross examination by Ld. APP, he stated that master Sadhu (PW3) used to reside with him for the last about six months and would sometimes come to his tea stall to help him to deliver/distribute tea. He also stated that due to filling of air, Sadhu (PW3) could not speak on 01.10.08.
During cross examination by the accused Vijay, he stated that he had not been paying any money to Sadhu (PW3) as he would come to help him occasionally and admitted that he had not witnessed the occurrence.
11. Sh. Mohd. Alam (PW9) who is a co-worker alongwith the accused Vijay Kamat in the said factory has testified that he was also working in the said factory at the relevant time where the victim Sadhu (PW3) who is also called by the name of Chhotu came with tea at about 10/10.30 am and after taking tea, PW9 was engaged in his work and heard the cry of Sadhu (PW3) and on enquiry, he came to know that air had entered into the stomach of Sadhu (PW3) whereupon he enquired from the accused Vijay who told that Sadhu had fallen on the compressor pipe and air got inserted in his stomach through his anus and thereafter 11/32 12 State Vs. Vijay Kumar Kamat FIR No. 418/08 he alongwith Ravinder (the owner of the factory), Shrawan Choudhary (PW5), the accused Vijay and Harish Gandhi (PW6) took Sadhu (PW3) to hospital where his condition was stated to be very serious and on the medical advise, he was taken to Pentamed Hospital for treatment. He categorically deposed that the accused Vijay was working on the compressor on that day and during cross examination by Ld. APP, he admitted that incident had occurred at about 10.30 am and stomach of Sadhu (PW3) was swollen after filling of air and denied if the accused Vijay filled air in the stomach of Sadhu (PW3) or that he is deposing falsely.
During cross examination by Ld. Defence counsel, he admitted that "....it is correct that one nipple was fixed on the mouth of pipe in question (compressor) and none of the workers made any complaint to the police officials regarding the occurrence...." He also stated that "...It is further incorrect to suggest that the police in the collusion with the owner of the factory had falsely implicated the accused as the owner wanted to terminate the services of the accused..."
12. HC Sunaina (PW10) has testified that on 30.09.09, she was working as Duty Officer and at about 12.55 am, she received an information from wireless operator regarding admission of one boy in an injured condition in nursing home after inflation of air by some factory wala with the help of compressor to that chaiwala boy on which 12/32 13 State Vs. Vijay Kumar Kamat FIR No. 418/08 she recorded DD No. 15A and telephonically informed SI Kuldeep Singh.
13. SI Kuldeep Singh (PW13- one of the Investigating Officers) has testified that on 30.9.08, on receiving DD no. 15A, he alongwith Ct. Dharambir reached at Raj Nursing Home, Main Road, Samai Pur where Dr. Hemant met him and told that one boy namely Sadhu was brought in the nursing home and after giving first aid, his relatives had taken him to Pentamed Hospital where he reached alongwith Ct. Dharambir and found that Sadhu was admitted who was unfit for making statement and on the basis of said DD, he prepared rukka which is Exhibit PW13/A and got the FIR registered after which investigation was handed over to Inspector Sameer Jha (PW12).
During cross examination by the accused, he stated that the information regarding DD No. 15A was given to him telephonically at about 1.30 pm and within 15 minutes, he reached at Raj Nursing Home and thereafter reached at Pentamed Hospital. He denied if he did not conduct the investigation as deposed by him.
14. HC Rohtash (PW2 - Duty Officer) has testified that on the intervening night of 30.09.08 and 01.10.08 at about 5.10 am, on the basis of rukka as sent by SI Kuldeep, he registered the present FIR and proved its copy as Exhibit PW2/A and also proved the endorsement on rukka as Exhibit PW2/B. 13/32 14 State Vs. Vijay Kumar Kamat FIR No. 418/08
15. SI Sameer Jha (PW12- Investigating Officer) has testified that on 01.10.08, the investigation was handed over to him during which he was provided with the copy of FIR (Ex. PW2/A) as well as original rukka and during investigation, he reached at RJ Industry, Gali No. 8, S.P. Badli where he inspected the spot as also recorded the statements of Shrawan Choudhary (PW5), Alam (PW9) and Harish Gandhi (PW6) and thereafter at the instance of Alam (PW9), he prepared site plan Exhibit PW12/A and took the photographs of the spot from his personal camera. He further deposed that on 2.10.08 and even thereafter, he visited Pentamed Hospital where injured (master Sadhu) was admitted who was unfit for making statement. He also deposed that on 5.10.08, he arrested the accused Vijay at the instance of Md. Alam from H. No. 4/1687-88, Jahangir Puri, Delhi vide arrest memo Exhibit PW9/C whose personal was conducted vide memo Exhibit PW9/D and his disclosure statement Exhibit PW11/A was also recorded. He further testified that on 10.10.08, he received a telephonic information from Shrawan Choudhary (PW5) that Sadhu (PW3) was discharged from the hospital, so he reached at his house and recorded the statement of master Sadhu (PW3) as well as obtained result on his MLC and recorded the statements of other witnesses. He further deposed that he got the air compressor machine mechanically inspected and Harish Gandhi (PW6) also handed him over one photograph (Ex. PW6/A) of the factory depicting the said machine. He also testified that he also obtained the attendance register of workers of RJ Industry which is Exhibit PW7/A, MCD Licence of RJ Industry (PW12/A) 14/32 15 State Vs. Vijay Kumar Kamat FIR No. 418/08 and the rent receipt issued by Ram Kumar Yadav (PW4- owner of the said premises) in favour of RJ Industry (Exhibit PW4/A) and after completion of investigation, he handed over the charge sheet to the SHO.
During cross examination by the accused Vijay, he stated that from 1.10.08 to 5.10.08, no efforts were made to arrest the accused Vijay as firstly the effort was to examine the injured but he was unfit for statement. He denied if on 1.10.08 the injured did not tell him regarding involvement of the accused Vijay in the case. He stated that he did not arrest the accused Vijay till he recorded the statement of injured and also that the accused Vijay was arrested from his house in the evening in the presence of few persons who refused to become witnesses to the arrest of the accused Vijay. He categorically stated that "It is incorrect to suggest that Sadhu did not name accused Vijay in his statement. It is incorrect to suggest that in connivance with Sadhu and Sharavan, the accused has been falsely implicated in the present case to extract money. It is incorrect to suggest that Sadhu fell on his own and gas was filled in his stomach by falling on the air pipe at the relevant time"...
16. Ct. Dharamveer Singh (PW11) has deposed on the lines of SI Sameer Jha (PW12), hence his examination in chief is not repeated for the sake of brevity, however during cross examination by the accused, he denied if the accused Vijay was not arrested from his house or that he was lifted from the factory.
15/32 16State Vs. Vijay Kumar Kamat FIR No. 418/08
17. The accused has examined Sh. Rana Pratap, Jageshwar and Sh. Rustam as defence witnesses in his defence as DWs 1, 2 and 3 respectively.
Sh. Rana Pratap (DW1) has testified that he was working in the factory and when he came to know that a child had sustained injuries, they took to hospital as air was inflated in his stomach.
During cross examination by Ld. APP, he stated that he does not know as to how air was filled in the stomach of Sadhu (PW3) or how he sustained injuries.
Sh. Jageshwar (DW2) has deposed that the accused Vijay used to reside with him however the police officials never visited the said house and also that the accused Vijay was arrested from the factory. During cross examination by Ld. APP, he stated that the accused Vijay is his nephew and denied that he is deposing falsely.
Sh. Rustam (DW3) has testified that he does not know about the case and police officials arrested the accused Vijay from the factory. During cross examination by Ld. APP, he denied if the accused Vijay was arrested from his house and fairly conceded that the accused is his friend and co- worker and they used to work in the said factory.
18. I have heard the final arguments as advanced by Ld. APP Sh. P. K. Samadhiya for State and Ld. Defence Counsel Sh. S.B. Dinkar and given my thoughtful consideration to rival submissions made by them and have 16/32 17 State Vs. Vijay Kumar Kamat FIR No. 418/08 also gone through the material as placed on record.
Ld. APP has vehemently argued that the prosecution has examined the victim/injured master Sadhu (PW3) who was then aged around 11 years who has supported the case of prosecution on all material aspects and has categorically deposed that the accused Vijay Kamat had pumped air into his stomach by compressor through his anus on 30.09.08 when he had gone to deliver tea in the factory to the workers as his relative Sharavan Choudhary was running a tea stall and he sometimes used to supply/distribute tea in the factory. He had further contended that the accused Vijay Kamat had pumped air through compressor in his stomach and had the other workers not intervened, the accused Vijay Kamat would not have stopped which could have been fatal for Sadhu. Ld. APP has further submitted that version of Sadhu has been duly corroborated on all material aspects by Shravan Choudhary (PW5), Harish Gandhi (PW6), Sardar Ravinder Singh (PW7), Md. Alam as well as by Bupal Singh (PW8- who was an expert for testing pressure vessels/plant U/s 31 of the Factories Act, 1958 and was authorised to make such test by Delhi Government) and is also duly corroborated even by the defence witnesses as examined by the accused Vijay Kamat. Ld. APP has also averred that since the prosecution has succeeded in placing on record the guilt of accused Vijay regarding the commission of alleged offence on the person of Sadhu in which regard entire investigation and all the documents have been duly proved on record which have also lend sufficient corroboration to the testimonies of various witnesses and even the ocular testimonies of witnesses has been 17/32 18 State Vs. Vijay Kumar Kamat FIR No. 418/08 corroborated by medical evidence, he has prayed that since the prosecution has succeeded in bringing home the guilt of accused beyond reasonable doubt, hence he must be convicted for committing the offence as punishable U/s 307 IPC.
19. Ld. Defence Counsel has vehemently argued that though the accused Vijay was working at the relevant time in the said factory, yet he did not commit the alleged offence and Sadhu himself fell on the compressor and as his nikkar was torn, the pipe of the compressor got fitted and inserted into his anus automatically and hence air was filled in his stomach. He has further contended that Sadhu has not supported the case of prosecution and was declared hostile by the state and hence no reliance can be placed on his version and has further argued the other witnesses as examined by the prosecution have nowhere deposed if at all the accused Vijay ever pumped air into the stomach of master Sadhu. He has prayed that the witnesses as examined by the prosecution are interested, hence their testimonies cannot be relied upon and accordingly accused Vijay must be acquitted of the charges levelled against him U/s 307 IPC.
20. Before proceeding further, at this stage, in considered opinion of the court, it would be relevant to discuss the provisions of section 307 IPC.
As provisions of section 307 IPC : -
Attempt to murder - "Whoever does any act with such 18/32 19 State Vs. Vijay Kumar Kamat FIR No. 418/08 intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned".
21. It would be appropriate to mention at the outset that neither the identity of the accused Vijay nor his presence at the relevant time at the spot at the RJ Industry, S.P. Badli and his working there at the relevant time at all is under challenge or in dispute. The prosecution has established the same not only through the ocular versions of various witnesses as examined by which it is proved even by the defence witness but the official Attendance Register Ex. PW7/A has also been duly proved on record which has nowhere been challenged by the accused Vijay Kamat and in fact the accused himself has fairly conceded that he was present at the spot at the relevant date and time and was working with compressor when the victim Sadhu @ Chhotu had distributed them tea and while collecting the empty glasses, the present incident occurred.
Dr. Sudhansu Mishra (PW1) has proved on record the detailed MLC of the injured Sadhu (PW3) as Exhibit PW1/A wherein it is clearly mentioned that he was admitted at about 10.30 am with alleged history of compressed air into his stomach through anus by a factory worker due to sudden onset of distention of abdomen and breathlessness etc. which 19/32 20 State Vs. Vijay Kumar Kamat FIR No. 418/08 injury was dangerous and he also proved on record that Sadhu (PW3) remained in the hospital till 10.10.08 and was discharged vide discharge summary Exhibit PW1/B and he has also proved on record the detailed treatment as Exhibits PW1//C1 to PW1/C8.
22. Now prior to appreciation of the versions of prosecution witnesses to ascertain the guilt/innocence of the accused, it would be important to discuss that it is well settled law that while appreciating evidence, the approach must be to see whether the evidence as a whole contains ring of truth and once that impression is formed, the court must scrutinise the evidence keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
In case titled as Bhim Rao Anna Ingiwale Vs. State of Maharashtra AIR 1980 SC 1322, the Apex Court held that where minor discrepancies on trivial matters arise which do not touch the core of the case then hyper-technical approach by taking sentence which is torn out of context here or there and of the evidence and attaching undue importance to it and to the technical errors committed by the investigating officer which do not go to the root of the matter does not ordinarily permit rejection of the evidence as a whole and unless the reasons are weighty and formidable, it 20/32 21 State Vs. Vijay Kumar Kamat FIR No. 418/08 would not be proper to reject the testimony on the ground of variations or infirmities in the matter of trivial details.
In a catena of cases, it is also laid down that interested witnesses are not necessarily unreliable and it cannot be laid down as an invariable and general rule that interested witnesses can never form basis of conviction unless corroborated in material particulars by independent evidence. What is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and must be accepted with caution as what the law requires is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication and if their testimonies inspire confidence, conviction can be based.
In the present case, after detailed scrutiny of evidence as placed on record, nothing worthwhile has come in the cross examination of material prosecution witnesses particularly of injured Sadhu (PW3) to disbelieve the presence of accused at the spot at the relevant date, time and place as already discussed and there is nothing to show if the accused did not insert/filled air in his stomach through his anus by the pipe of compressor, the accused has not led any evidence nor brought any material on record nor shown anything during cross-examination of witnesses to probablise his being falsely lifted from his house by the police officials and false implication in the case.
Nothing has been placed on record to show if version of Sadhu (PW3) suffer from any grave infirmities which go to the root of the matter and shake his basic version of commission of alleged offence by the accused.
21/32 22State Vs. Vijay Kumar Kamat FIR No. 418/08 The accused has not whispered any motive at all regarding his false implication in the present case and did not put anything to Sadhu in this regard. It is quite surprising that the accused has given suggestion to the Investigating Officer SI Sameer Jha (PW12) that he has been falsely implicated in connivance of Master Sadhu (PW3) and Shravan Choudhary (PW5) but no such suggestion is given to either of the said PWs. It is also strange to note that at one place, suggestion as given to other witnesses was that the accused has been falsely implicated at the instance of factory owner as he wanted to terminate his services. In the present case, no specific and clear motive has even been suggested or attribute to the witnesses regarding false implication of the accused whose testimonies are otherwise creditable and as per record they are very natural witnesses who had no motive whatsoever to implicate the accused falsely and in fact the motive suggested are various and absolutely contradictory to each other. The direct evidence of Master Sadhu (PW3) who is injured as well as victim regarding assault at the hands of the accused Vijay is worthy of credence and must be believed as it does not suffer from any inherent infirmity which make it unreliable or raise any doubt about genuineness of the case. In fact on detailed scrutiny the evidence of Master Sadhu is found creditworthy, believable and there is no reason as to why implicit reliance should not be placed on it and even his presence at the spot at the relevant date, time and place and his receiving said injuries is nowhere under challenge.
At this juncture, it would be not out of place to mention that Md. Alam (PW9) who as per accused has not supported the case of prosecution as 22/32 23 State Vs. Vijay Kumar Kamat FIR No. 418/08 he has denied having seen the accused filling air by compressor in the stomach of Master Sadhu, yet it cannot be lost sight of that he was a co- worker who initially told the Investigating Officer SI Sameer Jha (PW12) that he had seen the accused inserting air in the stomach of Master Sadhu by compressor and his not supporting the case of prosecution on material aspects is understandable as undoubtedly he must be having sympathy with the accused being co-worker and was admittedly not related to Master Sadhu in any manner whatsoever. The Apex Court in a number of cases has laid down that it is not unoften that public witnesses or the independent persons who have nothing to do either with the accused or with the deceased, many a times do not come forward with the real facts of the case as they are not interested in outcome of the case or in pursuing the matter and may also avoid any controversy/sour relationship with the accused apprehending that if they depose against the accused or narrate true facts, the accused may harm them and sometimes they consider that as the damage has already been done to injured, then why should they depose against the accused and invite his anger/displeasure. In view of the totality of facts and circumstances of the case and considering that even if Md. Alam (PW9) has not supported the case of prosecution to the extent that he did not depose if he witnessed the accused Vijay Kamat filling air in the stomach of Master Sadhu (PW3) by compressor, yet it does not collapse the case of prosecution as admittedly he was busy in doing his work and cannot be reasonably expected to witness the commission of said offence 23/32 24 State Vs. Vijay Kumar Kamat FIR No. 418/08 or by the accused Vijay Kamat with pipe of compressor in the stomach of injured master Sadhu through anus and even at the cost of repetition, it is worth mentioning that the testimony of injured/victim Master Sadhu @ Chhotu has inspired confidence of court as already discussed and other documents have also been duly proved which have lend credence to his version in which circumstances, it is immaterial even if Md. Alam (PW9) has not stated regarding his seeing the accused Vijay Kamat filling air in stomach of Master Sadhu as it is easy to visualise that the witnesses who are not concerned with the injured may safely like to keep away from the Police proceedings and proceedings before the Court and only those who feel aggrieved by the assault of the accused may be bold enough to come forward to offer themselves as witnesses and in the present case, testimony of Master Sadhu is very material and he has very categorically deposed regarding the manner in which the accused had filled air in his stomach through anus by the compressor which despite lengthy cross examination has not been rebutted or shaken.
In this regard, I also find support from the case titled as Khujji @ Surendra Tiwari Vs. State of M.P., AIR 1991, SC 1853, the Hon'ble Apex Court has laid down that the evidence of hostile witnesses cannot be rejected merely because prosecution chose to treat them hostile and cross examine them. Evidence of such hostile witnesses cannot be treated as effaced or washed off from the record altogether and it can be accepted to the extent that their version is found to be dependable and 24/32 25 State Vs. Vijay Kumar Kamat FIR No. 418/08 acceptable on careful scrutiny thereof and also that if other evidence has corroborated the testimony of hostile witnesses, the same can be relied upon in reaching to conclusions.
In view of above, court is of the considered opinion that though Md. Alam (PW9) is stated to have not supported the case of prosecution as per his statement recorded U/s 161 Cr. PC, yet the same does not collapse the case of prosecution as the other witnesses as examined by the prosecution as discussed above have supported the case of prosecution on all material aspects regarding which sufficient corroboration is available on record on all material aspects and their testimonies appear to contain ring of truth.
In the present case though certain prosecution witnesses might have improved their versions at the trial over the statements which they were given at the investigation stage, however it cannot be lost sight of that sometimes the tendency of witnesses is to exaggerate a bit but if they are corroborated in material aspects of their testimonies by unimpeachable evidence and in the form of injuries suffered by the injured which cannot be disbelieved, then there is no reason to disbelieve the prosecution witnesses or their versions as it is not unoften that sometimes improvements may be made at the trial in order to give a boost to the prosecution case but falsity of testimony in one material particular would not ruin it from beginning to end and the circumstances would certainly be a good reason for the Court to be put on the guard and sift the evidence with extraordinary caution and to accept those versions/portions which appear fully trustworthy either 25/32 26 State Vs. Vijay Kumar Kamat FIR No. 418/08 intrinsically or by reason of corroboration from other trustworthy sources.
It is trite that a case has to be decided on the basis of evidence adduced by the witnesses during the trial and any previous statement made by any such witness can be used by the defence for the purpose of only contradicting and discrediting a particular witness in the manner as laid down in Section 145 of the Evidence Act and under no circumstances can such previous statements be treated as substantive evidence.
In the present case, master Sadhu (PW3) has very categorically deposed that when he had distributed tea to the factory workers including the accused, he was using compressor and when he came to collect empty glasses, the accused filled air into his stomach through his anus by the compressor into his stomach. He has also clarified that before he could say anything or could react, the accused Vijay had already pumped air in his stomach in the said manner and it would be important to mention here that though initially, the victim master Sadhu at one point of time has stated that while collecting the empty glasses of tea, he fell down and the pipe of compressor automatically entered into his anus as his pant was torn from the back but it needs to be taken care of that the accused himself had told to Sharavan Choudhary (PW5) that he had filled air into the stomach of master Sadhu only jokingly and though initially, Master Sadhu stated that air got automatically filled in his stomach but thereafter time and again, he has very emphatically deposed that it was the accused Vijay Kamat whom he correctly identified who filled air by compressor in 26/32 27 State Vs. Vijay Kumar Kamat FIR No. 418/08 his stomach through anus due to which he received injuries and Dr. Sudhanshu Mishra (PW1) has proved on record the said injuries as dangerous. No enemity has been shown or whispered by the accused with the injured master Sadhu and there is no reason as to why the injured would falsely implicate the accused in the present case leaving the real culprit behind and why would he name him when several other persons were also working there and the factum of occurrence at the relevant date, time and place is nowhere in dispute. The other witnesses examined by the prosecution have also lend necessary corroboration to the testimony of Master Sadhu on all relevant aspects.
It cannot be lost sight of that Dr. Sudhanshu Mishra (PW1) has categorically deposed that immediately after the occurrence, master Sadhu (PW3) was brought to the hospital with alleged history of compressed air injuries though anus by a factory worker at about 10.30 am and the injuries were dangerous which report has nowhere been disputed by the accused and he has nowhere rebutted if the compressed air was not filled though anus of master Sadhu by a factory worker. In this regard it would also be appropriate to mention here that it is established on record that at the relevant time, it was the accused Vijay Kamat who was working with the compressor and also that Sh. Bhupal Singh (PW8) has very categorically deposed that the pipe of the compressor cannot be automatically inserted into the anus and air cannot be automatically filled in the stomach through anus and has denied that if somebody falls on the 27/32 28 State Vs. Vijay Kumar Kamat FIR No. 418/08 compressor or its pipe, air would be automatically filled in his stomach through anus. He has been very specific in stating that air cannot automatically flow through the pipe until somebody pushes it and inserts air into the anus. Sh. Harish Gandhi (PW6) has also deposed that the pipe of compressor will go inside his stomach through anus only if it is forcibly inserted and not otherwise. Sardar Ravinder Singh (PW7) has also explained that he did not immediately inform the police officials as it was urgent firstly to take Sadhu to hospital and informing the police officials was secondary.
From the testimonies of the abovesaid witnesses as already discussed above, the identity of the accused Vijay Kamat and his presence at the spot at the relevant date, time and place is nowhere in dispute and it is also established that only he was working on compressor at the relevant time and it is also established on record that it was undoubtedly the accused Vijay Kamat who had inserted /filled air into the stomach of master Sadhu though his anus by the pipe of the compressor and it has been absolutely ruled out if master Sadhu got air filled in his stomach automatically by falling on the compressor. Considering the totality of facts and circumstances of the case, it is not reasonably expected that any public person or independent person would be joined in the investigation as the police officials were only later on informed after Sadhu was admitted in the hospital as urgency and priority was to take Sadhu (PW3) to the hospital. The court is of the considered opinion that keeping in view the peculiar facts 28/32 29 State Vs. Vijay Kumar Kamat FIR No. 418/08 and circumstances of the case, non-joining of independent witnesses is not fatal to the case of prosecution and the shortcomings as pointed out in prosecution case are merely inconsistencies and do not come in the category of major contradictions.
In the present case, nothing has been shown by the accused to show as to why evidence of prosecution witnesses must be disbelieved when it is otherwise reliable and no reason to falsely implicate the accused has been shown on record.
Now, so far as the testimonies of the police officials is concerned, it would be important to discuss that the Hon'ble High Court, Delhi in case titled as Gopal Vs. State, 153 (2008) DLT 287 has categorically laid down that human memory cannot be expected to be so sharp as to remember the minute details of the incident even by the police officials who routinely handle such case in many numbers.
In considered opinion of the court and in view of above, no infirmity can be attached to the testimonies of police officials who are examined by the prosecution merely because they belong to the police force as they are found reliable and their versions have been corroborated on all material particulars by other evidence adduced on record. The Investigating Officer SI Sameer Jha (PW12) and Ct. Dharamveer Singh (PW11) who was accompanied the Investigating Officer SI Sameer Jha (PW12) have been cross examined at length by the accused but nothing is placed on record which raises doubt regarding genuineness of case of prosecution or point out 29/32 30 State Vs. Vijay Kumar Kamat FIR No. 418/08 if the accused Vijay did not commit the alleged offence or that he is falsely implicated and in fact the entire cross examination revolves regarding the place of arrest of the accused Vijay Kamat.
HC Rohtas (PW2) who is the Duty Officer was also not cross examined by the accused on any point whatsoever and the accused has admitted in totality the registration of FIR Exhibit PW2/A against him and its contents as well wherein the name of accused has been clearly mentioned to be the assailant/culprit who has committed the said offence.
The accused has also preferred not to cross examine HC Sunaina (PW10) and has fairly conceded that the initial information as given to the police officials that some factory wala had inflated air by compressor in the stomach of chaiwala boy (i.e. Master Sadhu) as correct.
23. In the present the accused Vijay has examined three witnesses namely Sh. Rana Pratap, Sh. Jageshwar and Sh. Rusta i.e. DWs 1, 2 and 3 respectively in support of his case, yet none of them have deposed if the accused Vijay has not committed any offence and all of them have expressed their ignorance but they have confirmed that at the relevant date, time and place, air was inflated/filled in the stomach of Sadhu (PW3) due to which he was hospitalised. The witnesses as examined by 30/32 31 State Vs. Vijay Kumar Kamat FIR No. 418/08 the accused Vijay have stated regarding the place of his arrest and have not thrown any light on merits of the case or if the accused Vijay had not committed the alleged offence.
It would be pertinent to mention here that DWs 1, 2 and 3 have been examined by the accused Vijay himself who are his relatives and co- workers as well and they have fairly conceded that master Sadhu (PW3) was injured and air was filled in his stomach at the relevant date, time and place but they have not named if the abuser was the accused Vijay and to that extent they have supported the case of prosecution.
24. In the present case, on the basis of material as placed on record, in view of above discussion and considering the totality of facts and circumstances, court of of the considered opinion that the witnesses examined by the prosecution are cogent, convincing and inspire confidence of the court in as far as they have come forward with true and clear picture of the occurrence. Sufficient corroboration is available on record on all material aspects to the ocular testimonies of various witnesses examined by the prosecution through documentary evidence as placed on record and the injuries on the person of master Sadhu have been duly proved on record in which regard MLC of Master Sadhu has been exhibited which has nowhere been disputed or rebutted or shown to be false or manipulated. No exaggeration or artificiality is observed in case of prosecution. In considered opinion of the court, prosecution has succeeded in proving on record beyond reasonable doubt that on 30.09.08 at about 10.30 am at RJ 31/32 32 State Vs. Vijay Kumar Kamat FIR No. 418/08 Industry, Gali No. 8, S.P. Badli, Delhi, the accused Vijay Kamat was working on compressor and pumped air into the stomach of master Sadhu (aged around 11 years) by the compressor through his anus with such intention or knowledge and under such circumstances that if by that act, Sadhu would have died, the accused would have been guilty of culpable homicide amounting to murder. Accordingly the accused Vijay Kamat is convicted for committing an offence punishable U/s 307 IPC. Le he be heard on point of sentence.
Announced in the open Court (BARKHA GUPTA)
on this 12th day of July 2010 Additional Sessions Judge - IV
Outer District
Rohini District Courts
Delhi
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