Delhi District Court
State vs Lankesh on 31 March, 2012
IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
S. C. No. 57/10
STATE
Vs.
Lankesh @ Lankeshwar Prasad
S/o Shri Kunwar Ram
R/o Village Kolia, POBagbuda
PSKajdol, Th. Baluda,
District Rampur (UP).
FIR No. : 27/10
P.S. : Sarojini Nagar.
U/S : 304/323 IPC.
Date of Institution : 25052010
Date of Judgment : 31032012
J U D G M E N T
1. Accused has been charged with and has faced trial for having committed offence u/s 304/323 IPC.
2. In brief the case of the prosecution is that on 010310, on receipt of DD no. 4A regarding a fight near FIR no. 27/10 Page no. 1 Taji Nagar, MBCC Vidhanchand School, ASI Ram Saran reached the spot where he came to know that injured had been taken to unknown hospital. Subsequently on receipt of another DD no. 12A ASI Ram Saran along with constable Sonish reached Safdarjung hospital, where injured Kamal was found admitted. The injured was declared unfit for statement. However, eye witness Rajesh was found in the hospital, whose statement was recorded by the IO. In the said complaint he had stated that his uncle Shakal Dev and another uncle Kamal Dev were working under this contractor Lankesh (accused). The daily wages were disbursed by the accused in the evening. On that date his uncle Shakal Dev demanded payment of Rs.1000/ from the accused which was paid. Then he again demanded Rs.4,000/ which were also due against his wages. His uncle Kamal Dev also demanded his wages on which accused picked up quarrel with him and started abusing him. Then he (accused) gave a brick blow on the head of Kamal Dev. He testified that FIR no. 27/10 Page no. 2 accused also gave brick blow on his head. They were taken to the hospital where Kamal Dev became unconscious.
3. The MLC of the complainant was also got prepared. Site plan was prepared. The brick used by the accused was seized from the spot. The injured Kamal Dev died subsequently in the hospital. Inquest proceedings were conducted. Exhibits were sent to the FSL. Statement of the witnesses was recorded. Accused was arrested. After completion of the investigation, chargesheet was filed in the court.
4. On the basis of allegations contained in the chargesheet, charge was framed against accused for having committed offence u/s 304/323 IPC, to which he pleaded not guilty and claimed trial.
5. In support of its case the prosecution has examined 16 witnesses.
6. PW1 is Shri Rajesh, the complainant in this case.
7. PW2 is Dr. Sanjeev Kumar Kasana, who proved FIR no. 27/10 Page no. 3 the MLC of deceased Kamal as Ex.PW2/A.
8. PW3 is Shri Shakal Dev, the uncle of PW1 Shri Rajesh. He also testified to the effect that he along with Kamal Dev and Rajesh were working under the supervision of accused, who was the contractor there. That Kamal Dev had demanded some money on which quarrel between accused and Kamal Dev took place and accused started abusing them. That while they were demanding money for sending the same to their native village, accused Lankesh gave a brick blow on the head of Kamal Dev. He further testified that when Rajesh tried to intervene he was also given brick blow on his head by accused Lankesh. That Kamal Dev became unconscious and was taken to the hospital alongwith Rajesh, where Kamal Dev expired. He also identified the dead body of Kamal Dev vide his statement Ex.PW3/A.
9. PW4 is constable Surendra Singh, who was posted at Safdarjung hospital as duty constable when Kamal FIR no. 27/10 Page no. 4 Dev was brought declared dead and his postmortem was conducted. He handed over the medical exhibits given to him by the doctor, to the IO, who seized vide memo Ex.PW4/A.
10. PW5 is ASI Om Parkash, who recorded the FIR in this case on the basis of rukka sent by ASI Ram Sharan through constable Sonish. He proved the said FIR as Ex.PW5/A.
11. PW6 is constable Sonish, who testified that on receiving a call he along with ASI Ram Shara, reached at the spot at Moti Bagh, where they came to know that injured had been taken to the hospital. That thereafter they came back to the PS and on receipt of call from Safdarjung hospital they reached there where the injured was unfit for statement. That IO recorded the statement of Rajesh and after preparing the rukka, he got the FIR registered and gave back the copy of FIR along with original rukka to the IO. He is also witness to the seizure of piece of brick from the spot and to the FIR no. 27/10 Page no. 5 arrest and personal search of accused.
12. PW7 is Kamlesh, who is the brother of deceased. He identified the dead body of Kamal Dev in the hospital vide his statement Ex.PW7/A.
13. PW8 is constable Lokesh, who took the case property from MHCM and deposited the same in FSL Rohini.
14. PW9 is Shri Sunder Singh, who testified that on that night he was on duty and had heard some noises from outside the gate at around 1010.15 pm. When he reached there he found some laborers present there who told him that they had a quarrel with the contractor regarding payment of their wages. That he also noticed a person bleeding from his head and came to know that contractor Lankesh (accused) had caused that injuries. This witness denied having seen the incident from his own eyes.
15. PW10 is Dr. Manish Kumath, who conducted the postmortem on the dead body of Kamal Dev. He proved FIR no. 27/10 Page no. 6 the said postmortem report as Ex.PW10/A. The cause of death in this case was due to carino cerebral damage consequent upon injuries sustained by blunt force. He also proved the subsequent opinion regarding the weapon of offence as Ex.PW10/B. In the said subsequent opinion the doctor has opined that after careful examination of the weapon of offence i.e. brick, the injuries mentioned in the postmortem report could be produced by the said weapon of offence.
16. PW11 is HC Satyabir Singh, who proved the DD no. 4A regarding a fight near Taji Nagar, MBCC Vidhanchand School as Ex.PW11/A. He also proved the DD no. 12A which was recorded regarding admission of Kamal Dev R/o Kodean Company, Moti Bagh in Safdarjung hospital by Rajesh due to fall from the roof at Moti Bagh as Ex.PW11/B.
17. PW12 is SI Anand Kumar, who had brought the DD no. 25A recorded on 090310 regarding death of Kamal in Safdarjung hospital. The said DD was proved FIR no. 27/10 Page no. 7 as Ex.PW12/A.
18. PW13 is SI Manvendra Singh, who had sought the opinion on the weapon of offence from the concerned doctor vide his application Ex.PW13/A. That the weapon was deposited with the doctor and opinion was kept pending by him and thereafter Inspector Subhash Meena too over the investigation of this case.
19. PW14 is Dr. S.K. Chandan, who had proved the MLC of injured Rajesh prepared by Dr. Yogesh as Ex.PW14/A.
20. PW15 is Inspector Subhash Chandra, who had received the investigation of this case on 060410 and had sent the case property to the FSL and had recorded the statement of the witnesses. He prepared the chargesheet and had proved the FSL report as Ex.PW15/A and Ex.PW15/B.
21. PW16 is ASI Ram Sharan, the IO of the case. He had deposed on the lines of the prosecution case. He testified that on receipt of DD no. 4A he along with FIR no. 27/10 Page no. 8 constable Somesh reached NBCC Moti Bagh, where they came to know that injured had been sent to the hospital. Thereafter on receipt DD no. 12A, he along with constable Somesh reached Safdarjung hospital where one Kamal was found admitted there but was declared unfit for statement. That he recorded the statement of eye witness Shri Rajesh, who was present at the spot; he made his endorsement Ex.PW16/B on the said statement and got the FIR lodged through constable Somesh. He prepared the site plan Ex.PW16/C at the instance of complainant; seized one brick piece Ex.P1; seized the clothes of the injured given to him by duty constable; arrested the accused Lankesh from the spot at the instance of complainant; conducted his personal search and his disclosure Ex.PW16/D was recorded.
22. He further testified that during investigation he also collected the copies of relevant DD entries. He also proved the application moved by him for recording the statement of the injured as Ex.PW16/F and Ex.PW16/G FIR no. 27/10 Page no. 9 but the victim died in the hospital on 090310. He also prepared the inquest documents Ex.PW16/H to Ex.PW16/J. That after the postmortem the dead body was handed over to the representative of the deceased and after recording the statement of the concerned witnesses and collection of relevant documents, chargesheet was filed in the court.
23. In his examination u/s 313 Cr.PC, all the incriminating evidence was put to the accused which he denied and stated that he was innocent. That all the laborers were quarreling after consuming alcohol and that the deceased had fallen from the wall as he was drunk.
24. Accused chose to lead evidence in defence.
25. DW1 is Shri Laha Ram, who was working with Odean Builders at Moti Bagh since 2009 and was present at the spot when the incident took place in the night. He testified that at that time 1920 people were present there; there was no light at the spot; that the FIR no. 27/10 Page no. 10 complainant Rajesh and deceased Kamal Dev were quarreling with each other; that Kamal Dev was under
the influence of liquor and in the heat of the quarrel he climbed the roof, kept abusing and fighting from there. That during this time he fell from the roof. He further testified that his wife and Rajesh took him to the hospital. That accused Lankesh was not involved in the said incident and was present with him. That accused Lankesh was not under the influence of liquor and accused Lankesh was also working as labour and used to receive salary by 10th of every month.
26. I have heard the Ld. Addl. PP for the State and Ld. Counsel for the accused at length and have also gone through the record carefully.
27. The material witnesses to the incident in this case are PW1 Shri Rajesh, who was one of the injured and PW3 Shri Shakal Dev.
28. PW1 Shri Rajesh has testified that he along with his uncle Shakal Dev and another uncle Kamal Dev FIR no. 27/10 Page no. 11 were working under this contractor Lankesh (accused). The daily wages were disbursed by the accused in the evening. On that date his uncle Shakal Dev demanded payment of Rs.1000/ from the accused which was paid. Then he again demanded Rs.4,000/ which were also due against his wages. His uncle Kamal Dev also demanded his wages on which accused picked up quarrel with him and started abusing him. Then he (accused) gave a brick blow on the head of Kamal Dev. He testified that accused also gave brick blow on his head. They were taken to the hospital; Kamal Dev became unconscious and died in the hospital. The brick used by the accused was seized from the spot. Police came and arrested accused.
29. PW3 is Shri Shakal Dev, the uncle of PW1, who has also testified to the effect that he along with Kamal Dev and Rajesh were working under the supervision of accused, who was the contractor there. That Kamal Devi had demanded some money on which quarrel FIR no. 27/10 Page no. 12 between accused and Kamal Dev took place and accused started abusing them. That while they were demanding money for sending the same to their native village, accused Lankesh gave a brick blow on the head of Kamal Dev. He further testified that when Rajesh tried to intervene he was also given brick blow on his head by accused Lankesh. That Kamal Dev became unconscious and was taken to the hospital alongwith Rajesh, where Kamal Dev expired.
30. It is seen that despite lengthy crossexamination nothing material could be extracted to demolish statement made by both these witnesses i.e. PW1 and PW3 in their chief examination. Rather it has come in the crossexamination of the witness PW1 that there were about 10 persons present at the spot when quarrel took place.
31. The accused has tried to take a stand that the witness was under the influence of alcohol and were abusing each other and the accused had not hit the said FIR no. 27/10 Page no. 13 victim. For this purpose the questions were put to PW1, who admitted in his crossexamination that it was correct that his uncles had taken alcohol that day and were abusing the accused loudly.
32. PW3 also admitted that deceased was heavily drunk at the time of the incident. Counsel for the accused has argued that there were four eye witnesses put up by the prosecution to establish the incident namely PW1 Shri Rajesh, PW3 Shri Shakal Dev, PW9 Sunder Singh and Baleshwar. However, this Baleshwar could not be produced in the witness box and was finally dropped by the Ld. Addl. PP.
33. It is also argued by the Ld. Counsel for the accused that PW9 was totally hostile to the case of the prosecution. PW9 Sunder Singh had testified that on that night he was on duty and had heard some noises from outside the gate at around 1010.15 pm. When he reached there he found some laborers present there who told him that they had a quarrel with the contractor FIR no. 27/10 Page no. 14 regarding payment of their wages. That he also noticed person bleeding from his head and came to know that contractor Lankesh (accused) had caused that injuries. This witness denied having seen the incident by his own eyes. He reiterated this fact when Ld. Addl. PP declared him hostile. He also admitted in the cross examination that the laborers were under the influence of liquor.
34. It is also argued by the counsel that PW3 has not been able to stand the test of crossexamination and that he had admitted in the crossexamination that deceased was heavily drunk at the time of the incident; that the altercation and scuffle took place between the accused and deceased and that he had not seen the accused hitting the deceased with anything. He had also testified that the IO had briefed him about what to say in the court. He also admitted that on the day of the incident he was not working on account of festival of Holi. He also admitted that deceased also climbed low FIR no. 27/10 Page no. 15 height wall while abusing the accused and sustained injuries. It is noted that this witness is the brother of the victim Kamal Dev and has testified that he had kept his brother in the jhuggi after the incident and he did not know how the police came there.
35. The doctor who had conducted the postmortem on the dead body has been examined as PW10 and has proved the postmortem report as Ex.PW10/A. He has testified that the victim had two antemortem external injuries and three antemortem internal injuries. In the two external antemortem injuries it is seen that there was stitched wound measuring 6 cm in length seen vertically placed on the left side of parietal region and one abrasion 1 cm above left eye brow. Whereas, in the antemortem internal injuries it is seen that there was extravsation of blood was seen on the left parietal region and the parietal bone was found fractured. That there was heamatoma over the brain underneaths the fracture and that he also testified that he had given his opinion FIR no. 27/10 Page no. 16 as the death occurred due to carino cerebral damage consequent upon injuries sustained by blunt force. He also testified that on 050410 the weapon of offence i.e. brick was produced before him and after careful examination of the same he had opined that the injuries mentioned in the postmortem report could be produced by this kind of weapon. He has proved the said subsequent opinion as Ex.PW10/B.
36. The factum of quarrel having taken place on 280210 at about 11.00 pm at under construction vacate place near Vidhan Chander Vidhyalya Senior Secondary School, Mothi Nagar is not denied by the accused. It is also established on record that the victim had suffered fracture on the left parietal bone scalp. The subsequent opinion given by the doctor is Ex.PW10/B. It is seen there from that the brick seized from the spot was sealed with the seal of RS and the same was opened by the doctor and on opening he found the packet containing the partially broken brick piece which had "reddish FIR no. 27/10 Page no. 17 brown colour stain in an area of 10 cm x 5 cm present over one of the edges of brick" from which two streaks of stains were originating and running on the adjacent areas of that edge. Besides that another reddish brown colour stain in an area of 3 cm x 2 cm was present over middle of the edge.
37. Counsel for the accused has argued that information sent to the PCR was that a person had been injured by falling from the roof which is corroborated by the statement of PW3 and that the accused was actually innocent and the victim had received injuries due to fall from the roof top.
38. On the other hand it is seen that there is evidence of PW1 who is also one of the injured in this case. He had categorically stated that it was accused Lankesh who had hit Kamal Dev with the brick and also hit him. The MLC of PW1 is Ex.PW14/A according to which he had lacerated wound over left eye brow 4 cm x 1 cm. If one was to accept the argument of the accused, then FIR no. 27/10 Page no. 18 there was no explanation as to how this witness Rajesh got this injury of lacerated wound over his left eye in the same incident. He had testified that he had received the said injuries when accused had also hit him with the brick on that date, time and place. This witness PW1 has stood the test of crossexamination and had been extensively crossexamined. He had answered all the questions put to him by the counsel for the accused satisfactorily. Rather Ld. Counsel had put to him that it was not possible to see the face of people as there was dim light at the spot. The witness had admitted that there was very dim light at the spot and it was not possible to see each other face. However, he denied that he could not see as to who had hit his uncle with brick as it was dark i.e. he categorically stated that even if it was dark, it was accused who had hit his uncle as the incident had happened before his eyes, which is a plausible explanation given. It is quite true that even if there was a dim light it was not pitch dark. Secondly all FIR no. 27/10 Page no. 19 the people i.e. the assailant as also the victim were known to each other and could have recognize each other easily even in that dim light.
39. As regards, PW3 it is seen that the witness had deposed on the lines of the case of the prosecution when he was examined in chief. Even when he was cross examined he had given satisfactory answers to the questions put to him. Thereafter, the crossexamination was deferred for postlunch session as the court had arisen for lunch time. However, when the witness came into the witness box after lunch he had started deposing in favour of the accused by saying that the deceased had fallen in the scuffle and sustained injuries; by saying that he had not seen accused hitting the deceased with anything and by saying that IO had briefed him what to say in the court. In these circumstances, I would rather discard the evidence of this witness as the witness seems to be unreliable. However, even if evidence of this witness is taken out, there is statement of PW1, who FIR no. 27/10 Page no. 20 has categorically deposed that it was the accused and accused only who had hit him as also his uncle Kamal Dev with the brick due to which they sustained injures and that Kamal Dev succumbed to these injuries.
40. There is no previous enmity shown by the counsel for the accused between the complainant Rajesh and the accused and as to why the complainant would take the name of the accused falsely for having hit him (and the deceased). MLC Ex.PW14/A also shows that immediately when he was taken to the hospital he had disclosed to the doctor attending him that there was physical assault on him at around 10.00 pm.
41. Counsel for the accused has argued that even if one was to accept the case of the prosecution, it would only make a case part II of section 304 IPC. On the other hand Ld. Addl. PP has argued that when the accused hit the victim with the brick he had the intention to kill him. However, in the totality of the circumstances it is seen that the prosecution case unfolds with the abuse FIR no. 27/10 Page no. 21 and altercation taking place between the accused and the victims. It further turns abusive scuffle and then the accused picks up a brick lying there and hit the victim Kamal Dev as also Rajesh with the same. One of them get serious grievous injury with that brick while the other got minor injury with the same. Thus, this shows that accused had not hit the victims with the intention to kill them though ofcourse he, as a prudent man, would have the knowledge that hitting with a brick on the head could cause death of a person.
42. I thus hold that from the evidence adduced on record, case u/s PartII section 304 IPC is made out against accused Lankesh for having caused death of Kamal Dev on 280210 at about 11.00 pm at Under Construction vacate place near Vidhan Chander Vidalaya Senior Secondary School, Moti Bagh, New Delhi, by hitting him with brick. He also committed offence u/s 323 IPC by causing simple injuries to Rajesh (PW1) with the same brick. Accused is convicted FIR no. 27/10 Page no. 22 accordingly.
Announced in the open court on 31st March, 2012.
(R. Kiran Nath) ASJ01/South New Delhi.
FIR no. 27/10 Page no. 23
State Vs Lankesh
FIR no. 27/10
PSSarojini Nagar
31032012
Present: Ld. Addl. PP for the State.
Accused from JC.
Vide my separate judgment of the date, accused Lankesh is convicted u/s PartII section 304 IPC and also u/s 323 IPC.
Case now to come up for arguments on the point of sentence on 090412.
(R. Kiran Nath)
ASJ01/South
31032012
FIR no. 27/10 Page no. 24