Delhi District Court
State vs . Babu Etc. Judgement Dt. 11.10.2018 on 11 October, 2018
State Vs. Babu etc. Judgement dt. 11.10.2018
IN THE COURT OF ADDITIONAL SESSIONS JUDGE05
(NORTH) ROHINI COURTS, DELHI
CNR No. DLNT010000422014
SC No. 57353/2016
FIR No. 729/2013
PS Narela
U/s 307 IPC
State Vs. (1) Babu
S/o Sh. Raju
R/o Begger Home Sewa Sadan Lampur, Narela, Delhi.
(2) Harish Chander
S/o Sh. Keshwanand
R/o H. No. 1035, Pana Paposia, Narela, Delhi.
(3) Pankaj Kumar
S/o Sh. Chander Bhan
R/o H. 117, Pkt. 3, Sec. 18 Rohini, Delhi.
(4) Rakesh Kumar
S/o Sh. Gagan Dev Dass
R/o VPO Bhanaspatti, PS Runnisaidpur ,
Distt. Sitamarhi, Bihar.
Date of institution before Ld. MM : 20.1.2014
Date of institution before this court: 4.2.2014
Date of arguments : 24.9.2018
Date of judgement : 11.10.2018
JUDGEMENT
SC No. 57353/2016, FIR No. 729/2013 Page 1 of 16
State Vs. Babu etc. Judgement dt. 11.10.2018
1. On 29.10.2013 at about 12:50 am an information was received at PS Narela on a PCR call that a quarrel had taken place at Beggar Home, Sewa Sadan, Lampur, Delhi. SI P. L. Meena was informed about this information. SI P. L. Meena along with Ct. Vijay Ram reached at the said place and he came to know that the injured had been taken to SRHC Hospital, Narela. SI P. L. Meena reached the hospital and took the MLC (Ex.PW8/A) of injured Amit Rana. The nature of injury was opined to be grievous and the injured was found to be unfit for statement. Since no eye witness was found in the hospital and the Beggar Home immediately, an FIR was registered on the rukka Ex.PW15/A.
2. During investigation, SI P. L. Meena recorded the statement of an eye witness namely Mohd. Shah. Mohd. Siraj made a statement that he was lodged in the said beggar home. Injured Amit Rana and accused Babu were also lodged there. On 18.10.2013 in afternoon, Amit Rana and Babu had quarreled. On the night intervening 18th and 19th October 2013 at about 12:30 am both of them again quarreled. Accused Babu was having a knife, which is used for cutting the vegetables. He shouted at Amit Rana that he would not leave him and he inflicted a knife blow on the neck of Amit Rana from the back side. In this quarrel, accused Babu also received injuries.
3. In view of this evidence, accused Babu was arrested, the offending weapon i.e. knife was recovered vide memo Ex.PW5/F. The knife SC No. 57353/2016, FIR No. 729/2013 Page 2 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 was sent to FSL and charge sheet was filed on 20.1.2014 against accused Babu (A1) and the case was committed to the Sessions Court vide order dated 27.1.2014.
4. My Ld. Predecessor framed a charge under Section 307 IPC against accused Babu (A1) vide order sheet dated 10.2.2014 and case was put for prosecution evidence.
5. On 29.5.2014 prosecution examined Pankaj Kumar as PW3 and Rakesh Kumar as PW4. It is pertinent to note that PW3 was Superintendent of Sewa Sadan, Lampur, Delhi and PW4 was Care Taker of Beggar Home, Sewa Sadan. Both of them had testified that when they heard the noise, they reached at the spot and found that Amit Rana was having stab injury on his hand and this injury was caused by accused Babu with vegetable knife. Later on PW5 Ct. Alok, PW7 Ct. Ajit, PW8 Dr. Shashi Prakash were examined. It is pertinent to note that Mohd. Siraj was also employed with Beggar Home and he was eye witness to the incident. On 22.11.2014 it was intimated to the court that he has been discharged from the Beggar Home.
6. Later on Mohd. Siraj could not be traced and therefore was not examined by prosecution.
7. It is pertinent to note that after the incident, Amit Rana remained unfit for statement for about one year. His statement was recorded on 27.8.2018, when he was declared fit for statement by the SC No. 57353/2016, FIR No. 729/2013 Page 3 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 doctors in hospital.
8. The injured stated in his statement under Section 161 CrPC that on 18.10.2013 at evening 4:00 pm Superintendent Pankaj Kumar sent him in Narela to purchase vegetable Baingan and he brought lokky instead of Baingan then Pankaj got angry on him and thereafter he and Babu prepared the food for beggar home. Pankaj Kumar ordered him to clean the Baramda and thereafter Pankaj gave him a wine bottle and they consumed wine with Babu and other beggar home members. Thereafter Pankaj ordered him to prepare paneer mutter sabji and injured told Babu to prepare Atta. Babu refused to do so and gave him (i.e. Amit Rana) a slap. Meantime, Harish, Care Taker Rakesh and Pankaj reached there and started favouring the Babu side. Rakesh and Pankaj caught him and Babu brought knife from kitchen and hit on his neck and cook Harish hit him with Musli on his head and thereafter, he (Amit Rana) become unconscious. The statement was recorded by previous IO SI P. L. Meena and presently the main IO has been transferred. The statements of witnesses were recorded under Section 161 CrPC and record of duty roster has been taken on file under seizure memo. As per record of duty roster care taker Rakesh and Superintendent Pankaj Kumar were found on duty but record of cook Harish on duty was not found at night. The duty of cook Harish was during day time from 0600 to 7.15 pm on 18.10.2013 but the present of cook Harish is found there as per the SC No. 57353/2016, FIR No. 729/2013 Page 4 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 enquiry and statement recorded under Section 161 CrPC of Dilip Singh security GD Supervisor. Accused Pankaj and accused Harish Chander were granted their anticipatory bail and both of the accused have joined the investigation. Disclosure statement and Fard Nisan Dehi has been recorded and the accused have been formally arrested and bailed out. Accused Rakesh Kumar arrested on 13.2.2015 and sent in JC but was released on bail later on. Accused Rakesh Kumar, Pankaj Kumar and Harish Chander were placed in column no.11 of supplementary challan under Section 173(8) and forwarded for judicial verdict.
9. This supplementary charge sheet was filed on 10.3.2015 and accused Harish Chander (A2), Pankaj Kumar (A3) and Rakesh Kumar (A
4) had appeared in the court on that date. Ld. Metropolitan Magistrate committed the case to Sessions Court on that very day. Till then Pankaj (A
3) and Rakesh (A4) had already been examined as PW3 and PW4 in the Sessions Court against accused Babu.
10. After hearing arguments on point of charge, Ld. Additional Sessions Judge framed a charge against these accused persons under Section 307/34 IPC. All the accused persons pleaded not guilty and claimed trial.
11. Prosecution examined PW9 Amit Rana (the injured). He testified that in March 2013, he was apprehended by Beggar Home Staff and after some days he was shifted to Beggar Home, Lampur, Narela. In the SC No. 57353/2016, FIR No. 729/2013 Page 5 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 month of Diwali Festival, he was sent by Pankaj, the Superintendent to bring brinjal from Narela and instead he brought bottlegourd. Therefore scolded and abused him. On this issue, he quarreled with Pankaj. On this Pankaj along with Harish and Care Taker Rakesh caught hold of him. Pankaj asked Babu to bring a knife and to assault him. Babu had brought knife from the kitchen and gave knife blow on his neck. He testified that accused Harish had given blows of Musli (instrument meant for grinding spices) on his body and because of the injuries, he (i.e. Amit Rana) became unconscious. He also stated that Pankaj had given him a liquor bottle as reward for wiping the floor. Thereafter, he and Babu consumed the liquor. Pankaj asked him to prepare subzi and he (Amit Rana) asked accused Babu to make the dough of floor, which accused Babu refused. He (Amit Rana) insisted Babu to dough the flour as he was senior to Babu. A quarrel took place on this issue between them. Both of them went to Pankaj, the Superintendent. PW9 Amit Rana testified that he presented the subzi to the Superintendent and told him that Babu was denying to dough the flour. PW9 further testified that Superintendent Pankaj abused him and thereafter Harish and Rakesh caught hold of him. On asking of Pankaj, Babu brought a knife from kitchen and inflicted fist blows on his neck and Harish gave Musli blows on his body.
12. PW10 ASI Ved Singh is MHC(M). He testified that on 19.10.2013, SI P. K. Meena deposited one pulanda with the seal of SRHC SC No. 57353/2016, FIR No. 729/2013 Page 6 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 along with sample seal. Entry was made in register no.19 vide serial no.
574. Copy of the same is Ex.PW10/A. On 22.10.2013, SI P. L. Meena deposited one sealed pulanda sealed with the seal of ASM and relevant entry in register no.19 is Ex.PW10/B. On 3.1.2014, the exhibits of the said case along with sample seal and FSL form were sent to FSL through Ct. Ajit. The relevant entry in register no.21 is Ex.PW10/F.
13. PW11 Suresh Kumar, Superintendent, Senior Secondary School for Deaf, Kalkaji testified that on 18.10.2013, he was working as Superintendent at Sewa Sadan. He proved that on the intervening night 18/19.10.2013, accused Pankaj Kumar, the Superintendent telephonically informed about the quarrel between Babu and Amit Rana. He proved the photo copy of the charge register and copy of entry exit register to the police, which was taken in possession vide memo Ex.PW11/A. The copies of entry register are Ex.PW11/B1, B2 & B3. He testified that original gate register is not traceable. The original charge register is having relevant entry for the period 18/19.10.2013 (Ex.PW12/C) and the relevant entries are on page no.115 Ex.PW12/D.
14. PW12 M. J. N. Tudu, Senior Superintendent, Beggars' Home, Lampur brought the original charge register in respect of Beggars' Home Complex having relevant entry for the period 18.10.2013 and 19.10.2013. The original date register was not traceable. He proved the original charge SC No. 57353/2016, FIR No. 729/2013 Page 7 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 register as Ex.PW12/C and the relvant entry as Ex.PW12/D.
15. PW13 HC Aslok Lal (who had already been examined partly as PW5) produced parcel no.2 and took out a knife, which was marked as Ex.P2.
16. PW14 Dalip Singh was Security Supervisor at Beggar Home and was on night duty from 10:00 pm on 18.10.2013 till 6:00 am on 19.10.2013. He testified that a quarrel took place between accused Babu and Amit but the matter was sorted out. A quarrel took place between them at 1:00 am again. Care Taker Rakesh informed him as he was present at the gate about the quarrel. He informed Superintendent Pankaj about the quarrel. PW14 testifeid that accused Babu and Amit were quarreling each other. Superintendent Pankaj made a call at 100 number. Therefore police arrived there. Accused Babu and injured were taken to hospital by police. He testified that quarrel did not take place in his presence. He also testified that accused Rakesh was working at Sewa Sadan at that time. He testified that accused Babu, Rakesh, Pankaj and Harish did not cause any injury to Amit in his presence. Ld. Additional Public Prosecutor declared the witness hostile and cross examined him. However, PW14 did not support the prosecution that accused persons had beaten and caused injury Amit in his presence.
SC No. 57353/2016, FIR No. 729/2013 Page 8 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018
17. PW15 SI P. L. Meena is the first Investigating Officer. He
testified that when he reached the police station, he collected MLC of Amit Rana and accused Babu. As per their MLCs, both of them were under influence of liquor. Both the injured did not make any statement. He prepared a rukka on DD No.6B (Ex.PW15/A) and got FIR registered on it. Doctor handed over to him Baniyan of injured Amit Rana, which was taken into possession vide seizure memo Ex.PW6/B. He prepared a site plan Ex.PW15/B at the instance of eye witness Mohd. Siraj. He recorded a statement, which is Ex.PW15/D. He testified that said witness is not now available at the given address i.e. Mohalla Chitla Ajmer, Rajasthan and that he had left the Beggars' Home, Lampur long back. He testified that he is not traceable in spite of strenuous efforts made to locate him. A detail report in respect of traceability of eye witness Mohd. Siraj is Ex.PW15/C and Ex.PW15/C1. He testified that accused Babu made a disclosure statement Ex.PW5/C, pointed out the place of incident vide memo Ex.PW5/E and got a knife recovered on 22.10.2013 from the junk material lying in the lane behind toilet in the complex of Sewa Sadan, Lampur, Delhi. The sketch of knife was prepared, which is Ex.PW5/E. Accused Babu was sent to judicial custody and case property was deposited with MHC(M). on 1.1.2014 he obtained subsequent opinion on the said knife by moving an application Ex.PW15/F. The subsequent opinion is Ex.PW15/G. The exhibits were SC No. 57353/2016, FIR No. 729/2013 Page 9 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 sent to FSL through Ct. Ajit on 3.1.2014. FSL result is Ex.PW15/H (biological) and Ex.PW15/I (serology). Injured Amit continued unfit for statement. Accordingly, he prepared a charge sheet against accused Babu and filed in the court. He further testified on 27.8.2014, injured Amit Rana found fit and he recorded his statement Ex.PW15/J in which Amit Rana made allegations against three accused persons namely Rakesh, Pankaj and Harish along with main accused Babu. He formally arrested accused Pankaj, collected copies of charge register and entry exit register.
18. PW16 Padam Kant Shukla, the Welfare Officer at Old Age Home on the night of 18.10.2013. He testified that he was on inspection round along with Superintendent Pankaj Kumar Verma. In the meantime, night care taker i.e. accused Rakesh, who was on night shift, came running and told him and accused Pankaj Kumar that two inmates namely Amit and Babu were quarreling each other. Accused Pankaj Kumar informed police at 100 number at 12:30 PM. He along with accused Pankaj Kumar Verma, Dalip Singh Security Supervisor with the help of other staff intervened and stopped the quarrel. PW16 testified that he saw from a distance that accused Babu was threatening everyone with knife. Police arrived at the spot and with the help of police, they were separated and were shifted to SRHC Hospital. He testified that accused Babu had not hit the neck of Amit with knife in his presence. The witness was cross examined by Ld. SC No. 57353/2016, FIR No. 729/2013 Page 10 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 Additional Public Prosecutor at length but he did not support the prosecution.
19. PW17 Ct. Dinesh is a witness to the arrest of accused Rakesh Kumar and his disclosure statement.
20. PW18 SI Ramesh Chand testified that on 3.1.2015 investigation was handed over to him. He arrested accused Harish Chander on 8.1.2015, recorded his disclosure statement Ex.PW18/B. He arrested accused Rakesh Kumar on 13.2.2015 and recorded his disclosure statement Ex.PW17/C. Accused Rakesh Kumar pointed out the place of occurrence vide memo Ex.PW17/D. He prepared supplementary charge sheet and filed the same in the court.
21. Prosecution closed its evidence. Statements under Section 313 CrPC of all the accused persons were recorded. However, accused persons did not prefer to lead evidence in their defence and final arguments were heard.
22. Ld. Defence Counsel for accused Pankaj has heavily relied upon the testimony of PW16 Padam Kant Shukla, the Welfare Officer, who has testified that at the time of incident, accused Pankaj Kumar Verma was with him on inspection round. It is argued that from his testimony it is clear that at the time of incident, Pankaj Kumar Verma was on round with Padam Kant Shukla and when they were informed about the incident, they reached at SC No. 57353/2016, FIR No. 729/2013 Page 11 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 the spot. At that time, accused Babu was having a knife. It is submitted that from this testimony, it is clear that incident had already taken place when Pankaj Kumar Verma and PW16 had reached at the spot.
23. On the other hand, Ld. Additional Public Prosecutor has relied upon the testimony of the injured Amit Rana (PW9) and submits that Padam Kant Shukla is a Welfare Officer and a colleague of accused Pankaj and therefore, he is trying to save him. I have carefully considered the testimony of PW9. As per PW9, who has testified that Superintendent Pankaj abused him and there was a quarrel between Amit Rana and Pankaj. PW9 further testified that accused Harish and Rakesh along with Padam caught him at the instance of Pankaj and accused Babu got a knife from kitchen and gave knife blows on his neck. On perusal of the evidence of PW9, possibility cannot be ruled out that he may be implicating accused Pankaj due to the reason that accused Pankaj had abused him.
24. Testimony of PW16 Padam Kant Shukla cannot be ignored. He has specifically testified that accused Pankaj was with him, when they got the information of quarrel between Amit Rana and Babu from care taker accused Rakesh. Therefore, the testimony of Amit Rana that accused Babu had inflicted knife injuries upon him is highly doubtful and is unworthy of credence.
SC No. 57353/2016, FIR No. 729/2013 Page 12 of 16State Vs. Babu etc. Judgement dt. 11.10.2018
25. Ld. Additional Public Prosecutor argues that PW9 has specifically testified that accused Harish and Rakesh caught hold of him and while Babu inflicted knife injuries upon the neck, accused Harish gave Musli blows on his body. It is argued by Ld. Counsel for accused Harish that the MLC of Amit Rana Ex.PW8/A does not show any other fresh injury except the incised wound. It is argued that had Harish hit Amit Rana with Musli, he must have received fresh blunt injuries because Musli is a heavy instrument. I have carefully perused the MLC of Amit Rana Ex.PW8/A. It shows clean incised wound but remaining three injuries are old scars and one multiple self inflicted scar over the hand. Therefore, I agree with Ld. Defence Counsel that version of Amit Rana having been hit with a Musli is not corroborated by medical evidence. Moreover, as per the entry exit register Ex.PW11/B, accused Harish had entered at 6:15 am and had exited from the premises at 7:00 pm. Therefore, at the time of incident i.e. the midnight intervening 18.10.2013 and 19.10.2013, accused Harish was not present in the complex. Therefore, the allegations of PW9 in respect of accused Harish stand falsified.
26. So far as accused Rakesh is concerned, PW9 Amit Rana has testified that Harish and Rakesh caught hold of him and Babu gave knife blow to him. However, PW14 Dalip Singh has testified that accused Babu and Amit Rana were fighting with each other but he did not ascribe any role SC No. 57353/2016, FIR No. 729/2013 Page 13 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 to accused Rakesh or to any other accused. It is pertinent to note that as per testimony of PW14, care taker accused Rakesh informed him about the quarrel between Amit Rana and Babu at 1:00 am and he informed Superintendent Pankaj about the quarrel. PW16 Padam Kant Shukla, the Welfare Officer also testified that care taker Rakesh came running and told him as well as to accused Pankaj Kumar Verma that Amit and Babu were quarreling with each other. From the evidence of these witnesses, it can be concluded that when Amit and Babu quarreled, accused Rakesh, who was the care taker, went to inform PW14 Dalip the Security Supervisor and PW16 Padam Kant Shukla as well as to accused Pankaj the Superintendent. Therefore, the testimony of PW9 about the role of accused Rakesh the care taker becomes highly doubtful. In view of this evidence, it would be highly unsafe to convict accused Harish (A2) and Rakesh (A4).
27. Ld. Defence Counsel for accused Babu has strongly assailed the veracity of PW9 Amit Rana and has drawn my attention to the MLC Ex.PW8/A of Amit Rana, which shows that at the time of incident he was under influence of liquor. It is further argued by Ld. Defence Counsel that even accused Babu had consumed liquor with Amit Rana. It is argued that possibility of accidental injury with the knife cannot be ruled out. It is argued by Ld. Defence Counsel that since there was quarrel between accused and Amit Rana prior to the incident also, it was a cause of enmity, SC No. 57353/2016, FIR No. 729/2013 Page 14 of 16 State Vs. Babu etc. Judgement dt. 11.10.2018 which has led Amit Rana to testify against accused Babu. Further, Ld. Defence Counsel argues that recovery of the knife at the instance of accused Babu is highly doubtful because it was recovered from the junk material lying in the lane behind the toilet in the complex of Sewa Sadan, Lampur as per testimony of PW15 SI P. L. Meena.
28. I have considered the submissions of Ld. Defence Counsel. I agree with his submission that Amit Rana was aggrieved due to the behaviour of Babu, which had led to quarrel twice between the two prior to the incident as testified by PW9. Moreover, as per MLC Amit Rana was under the influence of liquor. Therefore, his evidence must be corroborated substantially. In the present case PW14 Dalip Singh has testified that a quarrel took place between Babu and Amit and care taker Rakesh informed at 1:00 am. PW16 Padam Kant Shukla testified that on receiving the information of quarrel, he along with Pankaj Kumar Verma and Dalip Kumar tried to stop the quarrel and that he had seen from distance that accused Babu was threatening everyone with knife. These testimonies of the witnesses are enough to corroborate the testimony of PW9 that accused Babu had quarreled and inflicted knife blow to PW9. It is pertinent to note that the knife was also recovered at the instance of accused Babu and as per FSL report Ex.PW15/I, human blood was found on it.
SC No. 57353/2016, FIR No. 729/2013 Page 15 of 16State Vs. Babu etc. Judgement dt. 11.10.2018
29. I do not find any substance in the submissions of Ld. Defence Counsel that place of recovery was open and anyone could have thrown this knife there. I may point out that the fact that the knife in question was lying in the junk behind toilet and it was recovered at the instance of accused Babu. This leads to the conclusion that the offending weapon i.e. knife was concealed by accused Babu in the junk behind the toilet. In view of this discussion, it stands proved that accused Babu had inflicted knife blow on the neck of Amit Rana.
30. PW8 Dr. Shashi Prakash had examined Amit Rana and noted in his MLC Ex.PW8/A that there was a clean incised wound around 10 cm x 2 cm x 1 cm on the temporooccipital of the right side of the head. Although, the doctor had opined the injury to be grievous one, I am of the considered opinion that it was an attempt to commit murder by accused Babu.
31. In view of above discussions, I acquit accused Harish Chander (A2), Pankaj Kumar (A3) and Rakesh Kumar (A4). However, I convict accused Babu (A1) under Section 307 IPC.
Announced in the open court on 11.10.2018. VINOD KUMAR Digitally signed by VINOD KUMAR Date: 2018.10.11 11:20:29 +0530 (Vinod Kumar) Additional Sessions Judge05 (North) Rohini Courts Delhi SC No. 57353/2016, FIR No. 729/2013 Page 16 of 16