Delhi District Court
State vs Rajesh @ Gappu on 4 February, 2016
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0302432015
Sessions Case No. 35/1/2015
FIR No. 1350/2015
PS Mangol Puri
U/s 302 IPC
(Charged u/s 304IPC)
State Versus Rajesh @ Gappu
Son of Sh. Tare
Resident of H. No. J-76, Mangol Puri,
Delhi
Date of institution in Sessions Court: 04/09/2015
Date of conclusion of arguments : 01/02/2016
Date of pronouncement of judgment: 04/02/2016
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State
Sh. Rahul Tewari, learned defence counsel for accused
JUDGMENT
1 Baba Mohan Giri (PW8) used to work as priest (Pujari) at Shiv Shakti Mandir, situated at J Block, Mangol Puri, Delhi. He also used to stay in the same temple. One Sonu (victim herein) also used to dwell in the same temple complex.
2 Sonu owed small amount of Rs. 100/- to accused Rajesh @ Gappu. There used to be verbal scuffle between them as Sonu had not returned such dues to accused.
3 On 05/07/2015, in the evening, there was again a bicker between them regarding such outstanding amount. Accused Rajesh @ Gappu threatened him that in case such dues were not cleared by next morning, then Sonu would have to bear the consequences.
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 1 4 On 06/07/2015, at about 7.00 a.m., accused again demanded his dues of Rs. 100/- from Sonu. Sonu sought time till evening, on which, accused told that Sonu would, then, rather have to pay Rs. 200/- for delay. A quarrel ensued and accused started beating him with legs and fists and knocked him down whereby his head banged against the ground. Such incident was witnessed by Baba Mohan Giri (PW8) as well as complainant Om Prakash @ Babloo (PW13). Om Prakash @ Chhotu (PW2) and Nathu Ram (PW7) also reached the spot immediately. Om Prakash @ Chhotu (PW2) informed the police about the incident from his mobile. Police reached the spot and rushed the injured to SGM hospital, Mangol Puri, where he was declared brought dead.
5 Case was registered u/s 302 IPC. Inspector Rajpal (PW17) recorded statements of various witnesses during the investigation and concluded that accused Rajesh @ Gappu was responsible for the murder in question. It also stood revealed during the investigation that immediately after the incident, accused had also made extra-judicial confession before Baba Mohan Giri, Om Prakash @ Chhotu, Om Prakash @ Babloo and Nathu Ram.
6 After comprehensive investigation, accused was charge-sheeted for commission of offence u/s 302 IPC.
7 Charge-sheet was submitted before the concerned Magisterial Court on 17/08/2015 and case was ordered to be committed to the Court of Sessions.
8 Case was received on allocation by this Court on 04/09/2015.
9 Arguments were heard on charge. During course of the arguments, this Court found that it was rather a case of sudden quarrel and also noted that that accused was not armed with any weapon and there were only two external injuries. Keeping in mind the overall facts and circumstances in which the victim had died and also keeping in mind the postmortem report, accused was ordered to be charged u/s 304 IPC instead. Accused pleaded not guilty and claimed trial.
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 2 10 Prosecution was directed to adduce evidence and has examined 17 witnesses. Witnesses can be classified as under:
Public witnesses
i) PW2 Om Prakash @ Chhotu
ii) PW7 Nathu Ram
iii) PW8 Baba Mohan Giri (eye-witness)
iv) PW13 Om Prakash @ Babloo (eye-witness) Witnesses to investigation
i) PW3 Vijay Kumar (who videographed postmortem examination)
ii)PW4 HC Surender Singh (Duty Officer)
iii)PW5 SI Sasi Kumar (PCR official)
iv)PW6 Rajeev Ranjan (Nodal officer)
v) PW9 Inspector Mahesh Kumar (Draftsman)
vi) PW11 Ct Birju Singh (DD Writer)
vii)PW12 Ct Ravinder (PCR official)
viii)PW14 SI Ajeet Singh (Crime team in-charge)
ix) PW15 HC Prem Singh MHC(M)
x) PW16 SI Robin Tyagi
xi) PW17 Inspector Rajpal (investigating officer) Doctors I) PW1 Dr. Manoj Dhingra (Autopsy surgeon)
ii) PW10 Dr. M. Dass (who proved MLC of deceased)
11 Accused, in his statement u/s 313 Cr.P.C., pleaded complete ignorance about the incident. He denied that there being any financial transaction between him and Sonu. He rather asserted that he had been falsely implicated. Fact, however, remained that he did not lead any evidence in defence.
12 I have heard Sh. Sanjay Jindal, learned Addl. PP and Sh. Rahul Tewari, learned defence counsel for accused and carefully perused the entire material available on record.
13 Learned Addl. PP has contended that prosecution has been able to prove its case to the hilt. According to Sh. Jindal, it becomes manifest that there was monetary transaction between accused and victim and even on the previous evening, they both had quarreled and accused had given an open threat to the victim that in case his money was not returned, the consequences would be grave. He has contended that accused had given a severe hammering to Sonu on the date of incident i.e. in the early morning of 06/07/2015 and there is no reason whatsoever to disbelieve the version of PW13 Om Prakash @ Babloo who has FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 3 fully supported and corroborated the case of prosecution. He has contended that though PW8 Baba Mohan Giri has not fully propped up the case of prosecution, yet the overall conclusion of the evidence produced by the prosecution is irresistible and it stands established that accused is responsible for the death of victim Sonu. He has contended that previous quarrel as well as the subsequent utterances/confession made by the accused cannot be ignored and when these are read along with the narration given by Om Prakash @ Babloo (PW13), it becomes very much evident that accused had clear-cut knowledge that his act was likely to cause death.
14 Sh. Rahul Tewari, learned defence counsel, has, on the other hand, refuted all the aforesaid contentions. He has argued that accused has been falsely implicated in the present matter by the mohalla people and neither was there any such financial transaction nor accused had given any beating to victim. He has also argued that there is no other public witness of the alleged occurrence which also shows that prosecution story is after thought. He has averred that even PW8 Baba Mohan Giri has not supported the case of prosecution. According to him, there is not enough clarity as to who had called the police. He has also supplemented that even if the prosecution case is believed in toto, at best, it merely reveals that there was a trivial fight and the intention of the accused was nothing beyond causing simple injuries during such minor scuffle. He has contended that even the postmortem report clearly goes on to show that in the scuffle, the victim had fallen down and in the process, his head banged the ground which resulted in his unfortunate death. He has also claimed that there is no other injury which may suggest that accused had beaten up victim black and blue with intention or knowledge to commit culpable homicide.
15 I have given my anxious consideration to the rival contentions.
16 Let me now evaluate and weigh up the testimony.
17 As regards the previous quarrel dated 05/07/2015, reference be made to the testimony of PW8 Baba Mohan Giri. He has categorically deposed that he had been working as Pujari in said temple for last more than 25 years and he FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 4 used to reside there as well. He deposed that he knew Sonu who was an orphan and who also used to reside with him in the same temple. He also claimed that he knew accused Gappu. He correctly identified him as well. He further testified that there was financial transaction (paise ka len-den) between Sonu and accused Rajesh @ Gappu and on 05/07/2015, they both had quarreled with each other in the evening on account of the same. In his further examination, he also admitted that it was correct that when such quarrel had taken place in the evening, accused had threatened Sonu that if his money was not returned, the result would not be good. Such fact remains unimpeached. Mere suggestion to the contrary cannot be said to be sufficient in itself to dislodge the onus. I also cannot lose sight of the fact that other public witnesses have also testified regarding their being financial transaction between accused and victim. Such aspect would be taken up when I deal with the post-occurrence conduct of the accused.
18 Let me now come to the incident dated 06/07/2015. Prosecution, in this regard, is heavily relying upon the statements of two public witnesses i.e. PW13 Om Prakash @ Babloo and PW8 Baba Mohan Giri.
19 PW13 Om Prakash @ Babloo is a key witness. He also happens to be the complainant. He deposed that usually, he used to wake up early in the morning as he used to go to said temple. On 06/07/2015 also, he visited the temple at 6.30 a.m. where he met Sonu who was sitting on a takhat situated inside the temple complex. He gave money to Sonu for purchasing bread and milk and returned to his house. Thereafter, Sonu purchased bread and milk and came to their house and delivered those articles to him. PW13 Om Prakash @ Babloo told him that he would call him when tea would be ready. At about 7.00/7.15a.m., he went to the temple again to call Sonu as tea was ready and then he saw accused Rajesh @ Gappu quarreling with Sonu. He knew Gappu, being resident of their locality. He has also correctly identified accused during trial. He deposed that accused was demanding Rs. 100/- from Sonu and Sonu was claiming that he would return the amount in the evening. Accused, however, kept on insisting to give such amount then and there and accused also claimed that if payment was to be made in the evening, then he would take double the amount but Sonu exclaimed as to why he should be made to pay double the amount.
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 5 Thereafter, accused started beating Sonu and gave him two slaps and one fist blow towards the neck region and due to such blows, Sonu fell down.
20 PW13 Om Prakash @ Babloo thereafter rushed to call for more help and brought Om Prakash @ Chhotu (PW2) with him and then police was informed by Chhotu. Om Prakash @ Babloo also revealed that when he asked Gappu as to why he was beating-up Sonu, accused rather came heavily on him and told him to go from there. He also claimed that he did not take any step to provide any medical attention to Sonu as public persons were claiming that victim had already died. He deposed that police also reached at the spot and took his statement. He has also proved his statement as Ex. PW13/A. 21 When quizzed by prosecutor, PW13 Om Prakash @ Babloo admitted that he had seen accused giving continuous blows to Sonu with legs and fists. He then also admitted that when he returned to the spot again along with Chhotu (PW2) and questioned accused as to why he had done the same, accused had claimed "koi baat nahi, saala mar gaya". ( It did not matter if he had died) 22 I have seen his cross-examination and I am of the considered opinion that defence has not been able to impeach his testimony in any manner whatsoever. I do not find any single reason to hold Om Prakash @ Babloo to be a planted witness. Moreover, defence counsel has not bothered to explain as to why an independent public witness, with whom accused has no animosity at all, would falsely implicate him in a serious matter like this.
23 Undoubtedly, as regards incident dated 06/07/2015, PW8 Baba Mohan Giri has not supported the case of prosecution. During investigation, PW8 Baba Mohan Giri had claimed that he himself had witnessed the incident dated 06/07/2015 but in the witness box, he did not utter any such thing. Despite grilling on such aspect by the prosecution, he denied that on 06/07/2015, he had seen the entire incident and had seen accused Rajesh @ Gappu beating-up Sonu. Fact, however, remains that I do not find any reason to distrust the version given by PW13 Om Prakash @ Babloo whose testimony seems convincing and inspiring every inch.
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 6 24 As regards subsequent conduct and extra judicial confession made by the accused, reference be made to the testimony of PW2 Om Prakash @ Chhotu and PW7 Nathu Ram.
25 PW2 Om Prakash @ Chhotu has deposed that Om Prakash @ Babloo came to his house and told that accused Gappu was beating up Sonu. Then he along with Babloo went to the temple and saw Sonu lying on the ground. Accused was also present there and he asked accused as to why he had beaten up Sonu and then accused told him that he was to take money from him. He then also informed the police from his number 9211959127. Undoubtedly, he himself did not see the incident of beating up but that does not mean that his version has no relevancy or significance in the present context.
26 PW7 Nathu Ram has deposed that he had gone for a morning walk on 06/07/2015. He then met PW13 Om Prakash @ Babloo and also saw a crowd near the temple. He saw Sonu lying on the ground near wooden takhat and asked Babloo as to what had happened and then Babloo revealed that Sonu had been beaten-up by Rajesh @ Gappu. He also deposed that then he asked accused Rajesh as to why he had beaten up Sonu and then accused told that he was to take money from Sonu and that he had done whatever he wanted to do.
27 Thus, the testimony of all the aforesaid four public witnesses, when read in conjunction, clearly goes on to indicate that there was financial transaction between accused and victim. There was a quarrel to that effect previous evening as well when accused had threatened Sonu that in case the outstanding amount was not cleared, consequences would not be good. It also stands proved that on the date of incident i.e. on 06/07/2015, accused had beaten up the victim. As per the testimony of PW13 Om Prakash @ Babloo, during such beating, accused had given two slaps and one fist blow towards neck region of victim due to which the victim had fallen down. It also stands proved that thereafter, when public persons inquired from accused as to why he had beaten up victim, accused himself admitted that he had done that as he was to take money from him.
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 7 28 There does not seem to be any qualm with respect to the investigational aspects.
29 The earliest information about the incident was flashed to police by PW2 Om Prakash @ Chhotu from his mobile and such fact has been corroborated by PW5 SI Sasi Kumar who was posted at Police Headquarter. He has deposed that call was received at about 07:53:27 hours from mobile number 9211959127 to the effect that "Shiv Mandir, J Block, Bhagat Singh park, Mangol Purike samne ek aadmi dead pada hua hai". Ct Ravinder of PCR had recorded such information correctly on PCR form. PW12 Ct Ravinder has also deposed to that effect. Such PCR form has been proved as Ex. PW5/A. Defence cannot be permitted to say that since the caller had not given the name of offender, such caller cannot be said to be a spot-witness. Undoubtedly, it would have been certainly better if caller had given the name of the offender as well but omission in this regard would not automatically mean that caller did not know anything at all. Objective of caller was simply to inform the police. Once police met him, he disclosed everything to police without any delay.
30 Information was received by local PS as well and reference in this regard be made to the testimony of PW11 Ct Brijesh Singh who was working as DD Writer at the relevant time. Immediately on receiving information, he recorded DD No. 14B. Such DD entry has been proved as Ex. PW11/A which was entrusted to SI Robin Tyagi for investigation.
31 PW16 SI Robin Tyagi reached the spot along with Ct Rakesh and he saw Sonu lying dead near wooden takhat and noticed injuries on his head and face. He also met eye-witness PW13 Om Prakash @ Babloo at the spot and recorded his statement then and there. Such statement has been proved as Ex.PW13/A and on the basis of such statement, rukka was prepared and sent to PS for registration of FIR. FIR was thus recorded promptly without wasting any time and, therefore, there is no chance or scope of cooking up anything or manipulating facts or implicating accused falsely.
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 8 32 Before dispatching rukka, SI Robin Tyagi had also called-up mobile crime team and got the spot inspected and photographed.
33 PW14 SI Ajit Singh was working as in-charge crime team, Outer District and he had reached the spot along with photographer Ct Abhishek. His report is Ex. PW14/A and the photographs have been proved as Ex. PW14/B1 to B7. He also deposed that he had noticed a small injury on the head of the deceased.
34 Since it was found to be a case of murder, further investigation was taken up by PW17 Inspector Rajpal who was posted as Inspector Investigation, PS Mangol Puri on the relevant date. He reached the spot and he also noticed dead body of victim lying at the spot. He met SI Robin Tyagi as well as other police officials and crime team members. He got the dead body shifted to SGM hospital through SI Robin. He recorded statements of other witnesses and made inquiries regarding the incident. He also met Hira Lal (brother of deceased) and then he went to hospital where he prepared inquest papers. After postmortem, the dead body was handed over to the relatives of the deceased vide receipt Ex. PW17/B. 35 PW9 Inspector Mahesh Kumar, draftsman had visited the spot on 08/07/2015 and prepared scaled site plan which has been proved as Ex.PW9/A. Call detail record (CDR) pertaining to mobile number of PW2 Om Prakash @ Chhotu was also collected.
36 Thus, all the requisite investigational aspects have been duly proved on record. There are four public witnesses and defence cannot be permitted to raise any grudge on this score. Number is rather sufficient and on the higher side, if I may say so, at least keeping in mind the fact that the incident had taken place quite early in the morning when people are normally asleep.
37 The crucial question still remains to be answered. It is still to be assessed and evaluated as to what offence has been committed by the accused? Should it be held a case of culpable homicide or should it be concluded that the FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 9 intention of the accused was to cause mere simple injuries?
38 I reiterate that as per the testimony of solitary eye-witness PW13 Om Prakash @ Bablu, the role attributable to accused is limited to giving of slaps and blow on neck region. Undoubtedly, in his cross-examination conducted by the Prosecutor, such eye-witness did claim that accused had given continuous blows with legs and fists to Sonu but there is no medical evidence to that effect. It seems quite obvious that accused had merely given slaps and push to Sonu and due to the same, Sonu had fallen on the ground.
39 I garner support in this regard from the postmortem report as well as from the testimony of autopsy surgeon Dr. Manoj Dhingra (PW1).
40 Postmortem report has been proved as Ex.PW1/A. As per the facts found recorded therein, even the investigating agency felt that it was a case of physical assault during which, the victim had fallen and sustained injury.
41 There were following two external injuries only on the person of victim:-
i) Lacerated wound of size 3 x 0.5 c.m. over left parito temporal region.
ii) Abrasion present over right side of nose of size 1 x 1 c.m.
42 I re-emphasize that there is no other external injury as per the postmortem report. Sh. Manoj Dhingra (PW1) has opined that death was due to cerebral damage as a result of blunt force impact and injuries were ante-mortem in nature and were possible in the manner as alleged. This prompted the Court to put a specific Court question to autopsy surgeon. It would be appropriate if I reproduce such Court question and corresponding answer:
"Court Q: You have stated that injuries were possible in the manner as alleged. In the postmortem report, it is mentioned that during physical assault, the person had a fall and such history had been given by IO. Is it correct that therefore the injuries in question are possible due to fall?
Ans. These injuries are possible by fall."
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 10
43 Aforesaid answer clearly indicates that the lacerated wound appearing
over left parieto temporal region was possible due to fall as well. I am, therefore, compelled to re-weave and knit the entire sequence of events. It becomes palpable that accused had given slaps to victim and then gave blow or push on the neck region of victim Sonu. It seems that victim thereby lost his balance and fell on the ground. Due to such fall, there was cerebral damage which resulted in unfortunate death of Sonu. Such inference is in complete synchronization with medical as well as ocular evidence.
44 The outstanding amount was a paltry sum of Rs. 100/-. Undoubtedly, there was a previous quarrel between the two. Indubitably, even after giving beatings to victim, accused had admitted that he had done whatever he wanted to do but his such utterance would not automatically mean that accused had intention or knowledge to commit culpable homicide. His prime interest and objective was to get back his dues and in the process, he had given slaps and push to the victim. It was his sheer misfortune that because of such push, the victim lost his balance and fell on the ground and died in the process.
45 Thus, the act of accused was, merely, to cause simple hurt. He had no intention to kill anyone. Moreover, he was not armed either. He also could not have imagined that victim would fall due to push and would invite fatal cerebral damage.
46 In the case of Md. Isak Md. Vs. State of Maharashtra, AIR 1979 (SC) 1434, deceased was assaulted after sudden exchange of abuses and apex court held that there was no evidence to gather intention to cause death and it was observed that the intention was to cause grievous hurt and the offence fell u/s 325/34 IPC and not under Section 304 (1) IPC and conviction was altered accordingly.
47 In the case of Afrahim Sheikh Vs. State of W.B. AIR 1964 SC 1263:1964 (6) SCR 172, it has been observed as under:-
"The causing of the death of a person by doing an act accompanied by intention FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 11 in the two ways described in S.299 or with the knowledge that the act is likely to cause death also described there is thus distinguished from cases of deaths resulting from accident or rash and negligent act and those cases where death may result but the offence is of causing hurt either simple or grievous.
48 In the case of Gulab Sheikh 1970 SCC (Crl. 532), (as found mentioned in Law of Crimes by Ratanlal & Dhirajlal 26 th Edition, Page no. 1365) deceased was drunk and hurled abuses under the influence of liquor. Accused warned him not to do so but upon persistence of deceased in abusing him, accused gave blows to the deceased and pushed him down. Deceased died as a result of head injury received by him due to fall and it was held that accused could be convicted u/s 323 IPC.
49 As an upshot of my aforesaid discussion, I conclude that the intention of accused was, at best, to inflict simple hurt. He slapped and pushed and his such acts cannot attract section 304 IPC. There was neither any intention to cause any death or bodily injuries as were likely to cause death nor accused had any such culpable knowledge.
50 Resultantly, accused is acquitted of charge u/s 304 IPC. Albeit, he is held guilty u/s 323 IPC and convicted thereunder.
Announced in the open Court
On this 4th day of February, 2016 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West Distt: Rohini: Delhi
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 12
FIR No. 1350/2015
PS Mangol Puri
State Vs. Rajesh @ Gappu
04-02-2016
Present: Sh. Sanjay Jindal, Ld. Addl. PP for State.
Accused in J.C. with counsel Sh. Rahul Tewari.
Vide separate judgment announced in the open Court today, accused has been held guilty for offence u/s 323 IPC only.
Put up at 2.00 p.m. for arguments on sentence.
(MANOJ JAIN) ASJ (FTC) N-W Distt: Rohini: Delhi 04-02-2016 04/02/2016 at 2.30 p.m. Present: Sh. Sanjay Jindal, Ld. Addl. PP for State.
Accused in J.C. with counsel Sh. Rahul Tewari.
1 Heard on sentence.
2 Learned Addl. PP has stated that since a precious life has been lost, convict should be given maximum dosage.
3 Sh. Tewari has, on the other hand, contended that accused was apprehended on 06/07/2015 and is in custody since then. He has also contended that he has no previous bad antecedents and it happens to be his solitary case. He has also reiterated that accused is completely innocent and is not responsible for the unfortunate death of Sonu. As regards his family members, it has been apprised that he is married and having three children, the youngest child being seven years old only. His other family members are also dependent upon him. Sh. Tewari has contended that convict has already undergone sufficient incarceration and he may be let off against the period already undergone by him.
4 Convict has been held guilty for offence u/s 323 IPC which invites maximum imprisonment of one year. Keeping in mind the overall facts and FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 13 circumstances of the case, I sentence convict to the period already undergone by him i.e. from 06/07/2015 till 04/02/2016. He be released forthwith, if not required in any other case. However, since there is a possibility of prosecution going in appeal, convict is directed to submit personal bond and surety bond in a sum of Rs.10,000/- each u/s 437A Cr.P.C.
5 Bonds have been submitted and accepted.
6 Keeping in mind the overall facts and circumstances of the case, I also find it to be a fit case where matter should be referred for awarding suitable compensation u/s 357-A Cr.P.C. to legal representatives of deceased Sonu. The matter is accordingly recommended and referred to District Legal Services Authority, North West, New Delhi for deciding the quantum of compensation.
7 Copy of this order be sent to Ld. Secretary, District Legal Services Authority, North-West, New Delhi.
8 A copy of judgment and order on sentence be given to convict free of cost.
9 File be consigned to Record Room.
Announced in the Open Court
On this 4th day of February 2016 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
FIR No 1350/2015 PS Mangol Puri (State Vs. Rajesh @ Gappu) Page 14