Delhi District Court
St. vs . Bullan on 16 July, 2009
1
FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC
St. Vs. Bullan
IN THE COURT OF SH. B. S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE:DLEHI
Case ID Number 02402R0272232004
Session Case No. 66/08
Assigned to Sessions 30.07.04
Arguments heard on 14.07.09
Date of order 16.07.09
FIR NO. 234/04
Police Station Nand Nagri
Under Section 304 IPC
IN THE MATTER OF:
STATE
VS.
Bhullan @ Raju S/o Raffiq
R/o Gali no.6, Old Kardam Puri,
Shadara, Delhi.
JUDGMENT
1. On 14.4.04 a case u/s 304 IPC was registered at PS Nand Nagri vide FIR No. 234/04 on the basis of statement of Sh. Jai Narain son of 2 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan Sidheshwar Sahani r/o 25/17, Gali no.4 Rajiv Nagar, Delhi against Bhullan @ Raju s/o Raffiq r/o gali no.6, Old Kardam Puri, Shahdara, Delhi.
2. Brief facts of the case are that on 14.04.04 an information that one Subodh s/o Mehi Sahani was lying dead at house no. 25/17, Gali no.4, Rajiv Nagar, Budh Vihar was received vide DD no. 3 recorded at PP Harsh Vihar. On receipt of this information SI Hari Singh alongwith Ct. Mahesh Singh reached at the aforesaid place and came to know that on 13.04.04 some altercation had happened between deceased Subodh and Raju. Deceased Subodh was taken to GTB hospital and was got medically examined vide MLC bearing no. A-1447/04. Doctor opined the nature of injury as under observation caused by blunt object. One Jai Narayan s/o Sidheshwar Sahani also met at the spot. His statement was recorded wherein he stated as follows :
"I have been residing at house no. 25/17, street no.4, Rajiv Nagar, Harsh Vihar, Delhi on rent and doing the work of running a cycle rickshaw. Adjacent to his room in the same house one Subodh s/o Mehi Sahani and Babloo both brothers were also residing. Babloo used to drive tractor and Subodh used to 3 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan drive cycle rickshaw after taking on rent from Raju. Yesterday (on 13.4.04) at about 6:30 a.m Raju owner of the rickshaw reached at the house of Subodh and demanded rent in lieu of the rickshaw given by him to deceased Subodh on rent. Subodh said him that he would pay the rent after earning. Due to that Raju got enraged and started abusing him. When Subodh (deceased) resisted, Raju picked up an iron TAWA with the help of handle and landed the same on the back and lower portion of the stomach of Subodh.
When he and Babloo (brother of deceased) intervened Raju could not pacify himself. On
receiving the injuries by Subodh he was taken to GTB hospital. He was got medically examined, he was urinated with the help of catheter and after passing the urine he felt relieve and doctor discharged him from the hospital. HC Suresh Chand also reached at the hospital but he had not made any statement and left the hospital while saying that they shall make the statement at police post. Subodh was urinated and after discharge of the urine he was also discharged from the hospital. In the night the condition of Subodh deteriorated and he died in the 4 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan morning."
3. On the basis of the aforesaid statement case was registered. Investigation was initiated. Site plan was prepared. Post mortem of the deceased Subodh was got conducted. Accused Bhullan @ Raju s/o Raffiq was arrested. Post mortem report of the deceased was obtained. Statement of witnesses were recorded and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented to the court of Ld. MM.
4. Ld. MM after taking cognizance of the offence u/s 304 IPC against the accused, copies as required u/s 207 Cr.P.C were supplied to the accused and committed the case to the court of Sessions and on turn allocated to this court for trial.
5. Arguments on the point of charge heard. After hearing arguments a charge for the offence u/s 304 IPC was framed by the then Ld. ASJ vide order dated 19.8.04 and case was fixed for prosecution evidence.
6. Jain Narayan s/o Sidheshwar Sahani appeared as (PW1), Babloo Sahani s/o Mehi Sahani as (PW2), Dr. S.Lal, Senior Demonstrator, UCMS and GTB hospital as (PW3), Dr. Virat as (PW4), HC Suresh 5 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan Chand as (PW5), Ct. Mahesh Singh as (PW6), Ct. Mukesh as (PW7), ASI Pushpa as (PW8), Ct. Veersen as (PW9), Ct. Mahesh Pal as (PW10) and SI Hari Singh as (PW11). Thereafter, PE was closed and case was fixed for examination of the accused u/s 313 Cr.P.C.
7. Brief testimonies of all the PW's are as follows :
i) PW1 deposed that he did not remember the month and year however, it was the incident of about eight months ago on the 13th day of month. On the day of incident he was residing at Rajiv Nagar in the shop of Shankar Builder, Harsh Vihar, Delhi on rent. Subodh (deceased) and his brother Babloo belonging to his village were also residing in the adjacent room. Babloo used to drive tractor and Subodh used to run rickshaw on rent, belonging to Raju. On the day of incident i.e 13th day of month at about 6 or 6:30 a.m accused Raju present in the court had come to the room of Subodh and demanded money from him to which Subodh (deceased) replied that he was not having money and would make the payment after earning. Raju started quarreling with Subodh and lifted a TAWA from the room of Subodh and hit the same on the 6 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan lower portion of the back and stomach of Subodh by holding the TAWA with handle already affixed. He and Babloo tried to intervene and rescue Subodh but he insisted to get money from Subodh. He also deposed that after receiving TAWA blow, swelling started appearing on the abdomen of Subodh and urine stopped passing. He and Babloo took Subodh to GTB hospital. Babloo came back and he remained in the hospital. Urine was got discharged with the help of catheter and on the advise of doctor he brought back Subodh at his home. In the night the condition of Subodh became deteriorated. He tried to arrange money for the treatment of Subodh but in the morning he died. PCR was informed.
Police reached at the spot and made enquiry from him. His statement Ex. PW1/A was also got recorded bears his thumb impression at point A. He also deposed that police also took the TAWA to the PS and his thumb impression was obtained on the seizure memo of TAWA i.e Ex. PW1/B at point A. He also identified the dead body of Subodh vide identification memo Ex. PW1/C bears his signature at point A. He also deposed that after 24/25 days of the occurrence accused met him at Budh Bazar Chowk, Harsh Vihar. He identified him and was got arrested by the police. His arrest memo Ex. PW1/E and personal search memo 7 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan Ex.PW1/D were also prepared and both bears his thumb impression at point A. He also identified the TAWA with handle when shown to him which is Ex. P.1. During his cross examination he reiterated his testimony as submitted by him during his examination in chief. However, it was admitted that he did not inform the police on the day when deceased had received the injuries at the hands of accused and also did not inform the police throughout the night.
ii) PW2 Babloo Sahani corroborated the testimony of PW1 and also identified the TAWA Ex. P.1 when shown to him. He also corroborated the factum of identification of dead body of his brother vide memo Ex. PW2/A and also received the dead body of his brother vide receipt Ex. PW2/B. During his cross examination he again reiterated the testimony as submitted by him during his examination in chief. Iii) PW3 deposed that on 15.4.04 at 10:50 a.m he conducted post mortem on the dead body of Subodh aged about 22 years male with alleged history of assault on 13.4.04 at 6:30 a.m. It is also stated that deceased was brought to GTB hospital and expired during treatment on 8 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan 14.4.04 at about 8:40 a.m. On perusal of the dead body the general observations were as follows:
"A dead body of adult male, average built, wrapped in white hospital and plastic sheet, wearing blue check shirt, blue check lungi, pink colour kachcha and a loose mehroon colour shawl present over body, both eyes were closed, cornea hazy and state of all other natural orifices were NAD. Rigormortis present in passing stage, postmortem staining present on back and fixed, abdomen distented, with marbling of skin present on abdomen."
On further examination he found following antimortem injuries:
i) Reddish Grazed Abrasion 15x10 c.m present on the left side of middle of chest over external aspect.
ii) Reddish Grazed Abrasion 6x13.5 c.m present on the back of left shoulder.
iii) Reddish Abrasion 4x4 c.m present lateral aspect of left elbow.
iv)Reddish Grazed Abrasion 10x6.0 cm present lateral aspect of left gluteal region.
v) Reddish Abrasion 5x3 cm present lateral aspect of left pettala.
On internal examination bowel was found ruptured in a small intestine with mesenteries and about 2 ½ liter blood present in abdominal cavity. 9
FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan In view of the above observations he opined the cause of death as "hemorrhagic shock" due to antemortem injury to abdomen produced by blunt force impact. The said injury is sufficient to cause the death in ordinary course of nature. Time since death was opined as 24-32 hours. His detailed postmortem report Ex. PW3/A in his own hand bears his signature at point A at four places. He also signed nine inquest papers and handed over the sealed exhibits to the IO along with postmortem report. He further deposed that on 23.6.04 he received one sealed parcel containing the weapon of offence i.e TAWA duly sealed with the seal of SC with one tag bearing the particulars of the case. After opening the bag one TAWA was taken out and he examined the same and prepared the sketch of weapon and on the basis of postmortem report he gave an opinion:
"that antimortem injuries no.2,3 and 5 and the bowel injuries mentioned at point X are possible by this weapon of offence i.e TAWA and antimortem injuries no. 1 and 4 are unlikely to cause by said weapon."
His subsequent opinion in this regard is Ex. PW3/B-1 which is in his own hand bearing his signature at point A. The TAWA with wooden handle was 10 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan sealed with the seal of SL and handed over to the IO alongwith the sample seal. The subsequent opinion was also given on the back of the application moved by the IO which is Ex. PW3/A1. He also identified the TAWA with wooden handle when shown to him which is Ex. P.1. During his cross examination he also stated that:
"a person can sustain injury mentioned at sl. no. 1 to 5 by accident falling from rickshaw on the ground. He further stated that a person pulling rickshaw in case fell down by accident and hitted by the handle of the rickshaw on his abdomen then the internal bowel injury is possible."
Rest of his testimony is reiterated by him as submitted by him during his examination in chief.
iv) PW4 Dr. Virat deposed that on 13.4.04 Subodh s/o Mehi Sahini was brought for medical examination at about 9:40 a.m by Jain Narayan with alleged history of assault. There was no history of loss of consciousness and vomiting, ENT bleeding and seizure. The patient complained of pain in lower abdomen for three hours. On examination the patient was found conscious oriented and on abdominal examination 11 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan it was found soft and tenderness present in hypogastrium. He also advised the patient some injections and medicines and referred him to SR surgery. MLC Ex. PW4/A was prepared by him in his own hand bears his signature at point A. During his cross examination he deposed that when the patient was complaining pain in the lower abdomen and there were experts to examine, he could not be discharged without expert examination. He further stated that when patient was referred to surgery department a new file would be opened and from that file only it can be seen as to what time he was discharged and also stated that when he examined the patient he was fit for statement.
v) PW5 deposed that on 13.4.04 he was posted as HC at PP Harsh Vihar and on that day on receipt of DD no. 17A he obtained the MLC of Subodh which is Ex. PW4/A. The patient was declared fit for making statement. He contact Jai Narayan and Babloo to got the statement of Subodh recorded but they told that Subodh was not well and after providing first aid to him he would come to police post and got his statement recorded but he did not turn up, therefore, he went to his house and came to know that Subodh had not come back to the 12 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan hospital and on the next day i.e 14.4.04 Subodh expired. During his cross examination he failed to explain as to why he did not record the statement of Subodh when he had seen him in the hospital however, it is denied that at the instance of Jai Narayan he did not record his statement intentionally.
(vi) PW6 deposed that on 14.4.04 on receipt of DD no. 3A he joined the investigation with SI Hari Singh and went to house no. 25/17, Gali no.4,. Rajiv Nagar, Budh Vihar. On reaching there dead body of Subodh was found lying there in a room. One Jai Narayan met them at the spot who told that on 13.4.04 some quarrel had taken placed between Raju and Subodh on account of demand of money from Subodh by Raju. It is also stated that Raju landed a TAWA blow on the lower portion of the back and stomach of Subodh. On receiving the injuries he was admitted to GTB hospital. Aforesaid statement of Jai Narayan was recorded by the IO which is Ex. PW1/A. IO made endorsement on the statement of Jai Narayan and sent the same through him to PS for registration of the case. He further deposed that after registration of the case he returned at the spot and handed over the copy of FIR and ruqqa to SI Hari Singh. IO also seized TAWA with 13 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan handle vide memo Ex. PW1/B bearing his signature at point A. He and IO took the dead body of deceased to GTB hospital mortuary.
On 15.4.04 he again joined the investigation with SI Hari Singh. Dead body of deceased was got identified by Babloo Sahini and Jai Narayan and their statements to this effect were recorded in his presence. After conducting the postmortem of the dead body Dr. S.Lal handed over one sealed parcel and one sample seal sealed with his seal which he handed over to the IO and seizure memo to this effect was prepared by the IO which is Ex. PW6/A in his presence bears his signature at point A. Dead body of the deceased was handed over to their relatives. Case property was deposited in the malkhana and his subsequent statement was also recorded at PS. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
Vii) PW7 is the formal witness. He only deposed that on 13.4.04 Subodh s/o Mehi Sahini was admitted in the hospital by one Jai Narayan and he informed regarding his admission at police post Harsh Vihar vide DD no. 17, the true copy of the same is Ex. PW7/A. 14 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan Viii) PW8 is again a formal witness. She deposed that on 14.4.04 she recorded the FIR on the basis of ruqqa sent by SI Hari Singh through Ct. Mahesh. Carbon copy of the same is Ex. PW8/A. She further deposed that after registration of the case he handed over the copy of the FIR to Ct. Mahesh along with ruqqa for further investigation to SI Hari Singh. He made endorsement on the ruqqa is Ex. PW8/B.
ix) PW9 deposed that on 7.5.04 he joined the investigation of this case and on that day Jai Narayan informed that a person who had hit Subodh with TAWA on 13.4.04 was coming towards garrage at Harsh Vihar. On receipt of this information he alongwith Jai Narayan and SI Hari Singh went to Budh Vihar Chowk Harsh Vihar and at the instance of Jai Narayan they arrested accused Bhullan @ Raju. His personal search was taken vide memo Ex. PW1/D in his presence. During his cross examination he reiterated the testimony as submitted by him during his examination in chief.
x) PW10 deposed that on 13.4.04 he was posted as duty Munshi 15 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan at police post Harsh Vihar from 8:00 p.m to 8:00 a.m. On 14.4.04 at about 8:40 a.m he received an information through wireless that one person who was got admitted in GTB hospital on 13.4.04 died. Information was reduced in writing vide DD no.3 which Ex. PW10/A. Copy of DD was handed over to SI Hari Singh and who alongwith ct. Mahesh proceeded to the place of incident.
xi) PW11 is the IO of this case. He corroborated the testimony of all the other PW's and also stated that on 14.4.04 he was posted at PS Nand Nagri and on that day Ct. Mahesh handed over copy of DD no.3. On receipt of this information he alongwith Ct. Mahesh Singh went to house bearing no. 25/17, Gali no.4, Rajiv Nagar, Budh Vihar. On reaching there they found the dead body of Subodh lying there in a room. He also came to know that on 13.4.04 Raju had hit Subodh with a TAWA due to that Subodh was admitted to the GTB hospital, discharged developed complications and died. MLC of Subodh was obtained by HC Suresh but his statement could not be recorded on that day. He further deposed that statement of Jai Narayan Ex. PW1/A was recorded by him and he made endorsement which is Ex.PW 11/A and 16 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan sent the same to police station through Ct. Mahesh for registration of the case. He also sent the dead body alongwith application for preservation of the dead body in mortuary of the hospital which is Ex. PW11/B. He inspected the spot and prepared site plan Ex. PW11/C at the instance of Jai Narayan. He seized the TAWA with handle vide memo Ex. PW1/B and recorded the statement of witnesses at the spot. On 15.4.04 he moved an application for conducting the post mortem of Subodh which is Ex. PW11/D and also filled a requisite form Ex. PW11/E. He also recorded the identification statement of Babloo and Jai Narayan which are Ex. PW2/A and PW1/C. After conducting the post mortem dead body was handed over to Babloo vide receipt EX.PW2/B. He also seized the exhibits vide memo Ex. PW6/A which was handed over to him by Ct. Mahesh.
On 7.5.04 when he was present at police post in the meantime one Jai Naryan reached there and informed him that a person who caused injury to Subodh on 13.4.04 is going to his garrage. On receipt of this information he alongwith Ct. Veersen and Jai Narayan reached there and apprehended the accused Raju present in the court from Budh Vihar Chowk at Harsh Vihar at the instance of Jai Narayan. His personal search 17 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan was taken vide memo Ex. PW1/D. On 23.6.04 he moved an application Ex. PW3/A for obtaining opinion of the doctor on the point that the injuries inflicted on the person of Subodh can be caused with TAWA or not. Doctor gave his opinion Ex.PW3/B same is taken on record. He recorded the statement of witnesses and after completion of all necessary investigation challan u/s 173 Cr.P.C was presented to the court of trial. He also identified the TAWA with handle when shown to him in the court same is Ex. P.1.
During his cross examination he reiterated the testimony as submitted by him during his examination in chief except the fact that he admitted that as per the MLC deceased Subodh was fit for statement on 13.4.04 but HC Suresh did not record his statement as Jain Narayan and Babloo had told him that they would make their statement in police post only. He also recorded statement of HC Suresh with regard to investigation on 13.4.04. Thereafter, PE was closed and case was fixed for recording the statement of accused u/s 313 Cr.P.C.
8. During the course of examination of accused u/s 313 Cr.P.C he controverted all the allegations as alleged against him and submitted that he was innocent and falsely implicated in this case. Accused also 18 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan desired to lead defence evidence, therefore, case was fixed for defence evidence.
9. Sh. Shushil Kumar, Record Clerk GTB hospital appeared as DW1 and produced casualty card no. 40336/04 pertaining to MLC no. A-1447/04 of surgery department from GTB hospital referred by Dr. Virat from the casualty department. True copy of the same is Ex. DW1/A. During cross examination by Ld. Addl. PP for state he stated that he had no personal knowledge about the contents of Ex. DW1/A. Thereafter, defence evidence was closed and case was fixed for final arguments.
10.I have heard the arguments on behalf of both the parties. Ld. Counsel for accused submitted that before convicting the accused under any penal of law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case no incriminating corroborative evidence is produced against the accused by the prosecution. Ld. Counsel for accused also discussed many contradictions in the testimony of witnesses which are as follows:
(a) PW1 failed to disclose the month and year of the incident and only deposed that on 13th at about 6:00 or 6:30 a.m Raju accused present in the court had come to 19 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan Subodh for demanding money when he failed to gave money Raju lifted TAWA from the room of Subodh and hit on the back and stomach of the Subodh.
On the other hand PW3 Dr. S.Lal during his cross examination deposed that a person pulling rickshaw when fall down by accident and hitted by the handle of the rickshaw on his abdomen, then the internal bowel injury is possible which clearly goes to show that injuries may be self inflicted injuries or accidental injuries.
PW1 Jai Narayan stated that he did not inform the police on the day of incident despite of the fact that he had gone to the police post and then to the hospital. He also stated that on the advise of the doctor he brought back Subodh at his room at 2:00 p.m. On the other hand on perusal of Ex. DW1/A it is mentioned that Subodh S/o Nehi Sahni was absconded from the hospital without being discharged which clearly goes to show that PW1 made the false statement before the court hence testimony of PW1 has become unworthy of 20 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan credit.
(b) PW3 Dr. S.Lal in his opinion Ex. PW3/A opined that injury no.1 and 4 mentioned in antemortem injury are unlikely to caused by TAWA and he also stated that he had stated about the case history on the basis of particulars submitted by the IO and medical record which clearly goes to show that it was not the expert opinion rather it was the opinion of the IO and during cross examination PW3 further stated that injury nos. 1 to 5 as mentioned on the post mortem report can be sustain by a person due to accident or falling from rickshaw on the ground. He also stated that a person pulling rickshaw if fell down by the accident and hitted with handle of the rickshaw on his abdomen then the internal bowel injury is possible. PW4 Dr. Virat further contradicted the testimony of PW1 while deposing that he advised the patient some injections and medicines and also referred him to SR Surgery and without expert opinion the injured could not have been discharged 21 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan which again raises a doubt with regard to the cause of death of deceased Subodh.
( c) PW5 HC Suresh Chand clearly stated that patient was declared fit for statement but he failed to record his statement and only contacted Jai Narayan and Babloo for recording the statement of Subodh is totally against the principles of natural justice and during cross examination he further failed to explain why he has not recorded the statement of Subodh despite of the fact that he was fit for making statement.
(d) PW11 is the IO and he categorically stated that labour were residing in the adjacent room but he did not make any efforts to enquire if any person is present besides Subodh, Jai Narayan, Raju and Babloo at the time of incident and he also admitted that as per MLC deceased Subodh was fit for making statement on 13.4.04. No other independent witness has been produced by the prosecution. Testimony of PW1 and PW2 being villager and brother of deceased is unworthy 22 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan of credit. Except the testimony of these to witnesses all the other witnesses are police officials and they investigated the case only at the instance of PW1 Jai Narayan and conviction cannot be based on the testimony of police officials. Ld. Counsel for the accused also placed his reliance on a decided case cited as Shripad Shivram Kulkarni Vs. State of Maharastra 1981 AIR (SC) 34 wherein it is observed as under :
"It is well settled when a prosecution case rests on circumstantial evidence only, those circumstances should , in the first place, be firmly established and further, they should be a definite pointer towards the guilt of the accused."
It is further observed that the circumstantial evidence on the basis of which the accused had been convicted was replete with vital contradictions and material infirmities, and therefore, could not be safely acted upon to convict the accused, for the commission of the offences in question.
Ld. Counsel for accused also placed his reliance 23 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan on a decided case cited as Paramasivam @ Paraman @ Kottiyan and another Vs. State of Tamil Nadu 2002 (3) JCC 2022 wherein it is contended that "chain seems to be complete by reason of the absence of any explanation from the accused's end. It has been further contended that there is a duty incumbent on the accused to come out with the explanation as to what had happened after they left the railway station tea shop. In such circumstances it has been observed that the missing link in the chain is not supposed to filled in or supplied by the accused."
11.In the present case since the circumstances stood contradicted from the very mouth of PW1 himself, therefore, it could not be said to have been undoubtedly established and as such it would be highly unsafe to act thereon.
12.Ld. Counsel for accused also placed his reliance on a decided case cited as Toran Singh Vs. State of Madhy Pradesh 2002 AIR (SCW) 3182 and Thangavelu Vs. State of Tamil Nadu 2002 AIR (SCW) 3118
13.In view of the contradictions and confrontations in the testimony of the 24 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan prosecution witnesses discussed above and also on considering the observation given by their lordships in the aforesaid decided cases it is submitted that prosecution failed to place on record an unbreakable chain of circumstances and also to prove its case beyond reasonable doubt and requested for acquittal of the accused.
14.On the contrary Ld.APP for state submitted that it is not a case of circumstantial evidence only however, eye witness PW1 Jai Narayan who had seen the incident with his own eyes and PW2 Babloo Sahini brother of deceased also present when offence was committed and the testimony of public witnesses itself is sufficient to prove the case of the prosecution beyond reasonable doubt.
15.In support of her contentions she further submitted that PW1 Jai Narayan in his testimony clearly stated that deceased Subodh and Babloo were residing adjacent to his room and Subodh used to run rickshaw while taking on rent from accused Raju. The incident happened at 6:00 or 6:30 a.m on 13th day of month and on that day accused present in the court had come to Subodh and demanded money from him when he could not make payment Raju started quarreling with Subodh and lifted Tawa from his room and hit on his back and stomach 25 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan by holding the same with the help of handle already affixed on the Tawa. He further stated that Babloo has also tried to intervene and pursuade Raju but he insisted to take money from deceased. He also stated that he and Babloo took the Subodh to GTB hospital. He also stated that after receiving treatment and discharging his urine with the help of catheter. He brought him back to his house. In the night the condition of Subodh became worsen and ultimately in the morning he died. He also stated that he informed the PCR, police official reached at the spot and he got his statement recorded which is Ex. PW1/A and his testimony is further corroborated by PW2 Babloo Sahini and PW3 Dr. S.Lal. Sr. Demonstrator.
16.PW3 in his testimony clearly stated that on internal examination bowel was found rupture in a small intestine with mesenteries and about 2½ liter blood was found present in abdominal cavity. He further opined that cause of death is hemorrhagic shock due to antemortem injury to abdomen, produced by blunt force impact. It is further opined that injury mentioned at point 'X' i.e bowel rupture of small intestine seen with mesenteries, about 2.5 liter blood present in abdominal cavity. In his post mortem report he also opined that injury no.2, 3 and 5 as mentioned 26 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan as antimortem injury and the bowel injury mentioned at point X are possible by this weapon of offence and are sufficient to cause the death in the ordinary course i.e Tawa and injury no. 1 and 4 mentioned in the antimortem injury are unlikely to be caused by this weapon.
17.The factum of injury caused by TAWA is further corroborated by PW6 Ct. Mahesh Singh and PW1 SI Hari Singh who had stated that IO had taken in possession one TAWA with handle vide memo Ex. PW1/B in his presence and bears his signature at point A and the factum of producing the TAWA in a sealed parcel sealed with the seal of IO is further corroborated by doctor S. Lal who had given his opinion on the basis of TAWA produced before him.
18.The factum of taking the accused to GTB hospital is proved by PW5 HC Suresh Chand who clearly stated that on 13.4.04 he was posted as HC at Police Post Harsh Vihar and on that day on receipt of DD no. 17A he obtained the MLC of Subodh Ex. PW4/A and he also contacted Jai Narayan and Babloo for recording their statements but they told him that Subodh was not feeling well and after receiving treatment they would come to the Police Post and gave their statements. When they did not turn up then he went to the house of Jai Narayan where he came to 27 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan know that Subodh had not returned from the hospital and on next day i.e on 14.4.04 he expired. Factum of receiving the information of death of Subodh vide DD no. 3A is further proved by Ct. Mahesh Singh who had joined the investigation with IO Hari Singh and went to the place of occurrence. On reaching there i.e house no. 25/17 they found Subodh was lying dead. PW1 Jai Narayan met them and he narrated the whole incident dated 13.4.04 and specifically stated that quarrel had taken place with Subodh and Raju. Raju demanded money from Subodh when he had not gave money Raju had attacked with TAWA on his back and stomach.
19.Factum of taking the injured Subodh to hospital on 13.4.04 is further proved and corroborated by PW7 Ct. Mukesh who specifically stated that on 13.4.04 he was posted as Ct. at GTB hospital and on that day Subodh s/o Nehi was got admitted in the hospital by Jai Narayan PW1 and he also informed this fact to Police Post Harsh Vihar vide DD no. 17, true copy of the DD is Ex. PW7/A.
20.PW8 proved the factum of registration of the case on the basis of ruqqa sent by SI Hari Singh through Ct. Mahesh. Ct. Veersen PW9 proved the factum of arrest of accused Bhullan @ Raju at the instance of Jai 28 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan Narayan. PW10 further corroborated the testimony of PW9 and PW11. IO SI Hari Singh corroborated the testimony of all the remaining PW's and minor contradictions which has already been discussed by Ld. Counsel for accused are the mere irregularities and not fatal to the prosecution.
21.It is further submitted that plea taken by ld. Counsel for accused that PW3 Dr. S. Lal and PW4 Dr. Virat during his cross examination gave an information that injury no.1 to 5 can be caused by incident falling from rickshaw on the ground and a person pulling rickshaw in case fell down by accident and hitted by the handle of the rickshaw on his abdomen then the internal bowel injury is possible is totally out of the issue before this court. PW3 during his examination in chief and in his opinion clearly stated that antimortem bowel injury mentioned at point X are possible by weapon of offence and are sufficient to cause the death of a person in ordinary course of nature. During the cross examination of PW3 a question asked by Ld. Counsel for accused to the affect that whether injury can be caused by any other means cannot be taken into consideration to prove that death cannot be caused by the weapon of offence i.e TAWA.
29
FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan
22.Another plea which is taken by Ld. Counsel for accused that at the time when accused was admitted to the hospital he was declared fit for making statement by the doctor, his statement was not recorded by HC who was present in the hospital nor by the IO and injured absconded from the hospital without the advise of the doctor is not fatal to the prosecution as at that time there was no apprehension of further complications and death of the deceased as first aid treatment was already given by the doctor. It is further pleaded that no independent witness was examined despite the fact that many residential houses were there at the place of incident is also not tenable in law and is not a ground to reject the testimony of eye witnesses and also placed her reliance on a decided case cited as Ambika Prasad and another Vs. Delhi Administration AIR 2000 Supreme Court 718 in this case it was contended that despite the fact that 20 to 25 persons collected at the spot at the time of incident as deposed by the prosecution witnesses, not a single independent witness has been examined and therefore, no reliance should be placed on the evidence of PW5 and PW7. This submission also deserves to be rejected. It is further observed that : 30
FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan "it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they cannot depose truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to co-operate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses."
23. Ld. Addl. PP for state also placed her reliance on a decided case cited as State of UP Vs. Hari Mohan AIR 2001 Supreme Court 142 wherein it is observed as under:
"Before appreciating the circumstantial evidence in the case, we are at pain to place on record our displeasure regarding the conduct of the investigation in the case. The investigating Officer appears to have left no stone unturned to help the accused respondent. It appears that the valuable evidence, though available, was not collected apparently for ulterior purposes. The conduct of the investigating officer was even noticed by the trial court. While recording his statement, the trial court observed that "it appears that the IO was negligent and an irresponsible investigating officer". It was noticed that "the witness giving aforesaid statement and it appears that he wants to damage the 31 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan prosecution case." It is not disputed that during investigation it had come in evidence that respondent no.1 was possessed of a licensed gun which was stated to have been used by him on 15.3.1977 the alleged day of occurrence, yet no effort was made by the IO to seize the gun or get it examined by an expert to ascertain whether any shot was fired from its barrel. He also failed to have taken into custody the letter written by the deceased for a sufficiently long period though its mention was made by the PW1 in the FIR itself. However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation a case is made out against all the accused or anyone of them. It is unfortunate that no action can be taken against the IO at this stage who, in all probabilities, must have retired by now."
24.Ld. Addl. PP for state also placed her reliance on a decided case cited as Rajesh Kumar Vs. State of H.P 2009 Crl. L.J. 335 wherein it is observed as under :
"There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard."
25.In view of the evidence discussed above and the observations given by 32 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan their lordships in the aforesaid decided case, the contention raised by Ld. Counsel for accused have no force and liable to be rejected and also requested for convicting the accused for the offence as alleged against him.
26.After hearing arguments and in view of the observations given by the their lordships in the decided cases upon which Ld. Counsel for both the parties placed their reliance and on perusal of the evidence on record it establishes that on 13.4.04 accused visited the house of deceased demanded money from him in lieu of rent due towards him. When deceased failed to make the payment altercation happened which was seen by PW1 Jai Naryan and PW2 Babloo. PW1 deposed that accused landed a TAWA blow on the lower portion of the back and stomach. His testimony is corroborated by PW2 brother of deceased. PW3 Dr. S.Lal who had conducted the postmortem of the dead body opined that bowel injury which is sufficient to cause death in ordinary course of nature can be caused by the weapon of offence i.e TAWA. Accordingly, it is proved that deceased died due to the injuries inflicted on his abdomen by landing a TAWA blow by the accused and not due to other reason.
27.Ld. Counsel for the accused failed to lead any evidence in support of his 33 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan plea of partiality to show that witnesses had reason to shield actual culprit and falsely implicated the accused. In such circumstances it establishes that there is no reason to disbelieve the testimony of PW1 and PW2. The plea taken by the counsel for accused that the deceased failed to follow the advise of the doctor and absconded from the hospital without the advise of the doctor is not fatal to the prosecution. In view of the explanation (2) appended with Section 299 IPC which read thus :
"Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented."
28.I also place my reliance on the provision u/sec. 304 IPC which reads as under:
" Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act bywhich the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;34
FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan or with imprisonment of either description for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
29.It has become crystal clear that maximum benefit which can be given to the accused by resorting to proper remedies and skillful treatment is that the case would be of culpable homicide not amounting to murder and accordingly, the accused is tried for the offence u/s 304 IPC.
30.In view of the above discussion it is held that prosecution has succeeded in proving its case beyond reasonable doubt . Accordingly, accused is held guilty and is convicted for the offence of culpable homicide not amounting to murder i.e u/s 304 part (II) IPC. Let he be heard on the point of sentence.
(B.S. CHUMBAK) ASJ-3/North East District Delhi ANNOUNCED IN THE OPEN COURT ON 16.07.09 35 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan 36 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan IN THE COURT OF SH. B.S. CHUMBAK: ADDL. SESSIONS JUDGE-3 (North East): KARKARDOOMA : DELHI FIR NO. 234/04 P.S NAND NAGARI SC NO. 66/08 U/SEC. 304 IPC STATE VS. Bhullan @ RajuS/o Raffiq R/o Gali no.6, Old Kardam Puri, Shadara, Delhi.
ORDER ON SENTENCE
1. I have heard the arguments on behalf of Ld. Addl. P.P for State as well as on behalf of Ld. Counsel for the convict on the quantum of sentence.
2. Ld. Counsel for the convict submitted that convict is poor person and is a sole bread earner in his family. Convict is liable to maintain his family consisting of seven members excluding himself. Out of seven members, three are minor daughters aged about 13, 10 and 6 years of age, all are studying in 9th 6th and 2nd standard respectively. He has to look after his wife, one minor son aged about three years and also his young sister aged about 20 years who is handicapped and her left leg is disable due to Polio. Convict has also to look after his old mother aged about 60 years. It is also pleaded that in case convict remained behind the Bar for 37 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan long period, his family members will suffer grave financial hardship because of no source of income in their family except the earnings of the convict.
3. Ld. counsel for the convict also pleaded for releasing the convict on probation as no record of his previous conviction is alleged against the convict.
4. On the contrary Ld. Addl. P.P for state argued that deceased was the rickshaw puller and was plying the rickshaw while taking on rent from the convict and when the deceased failed to make the payment for rent, on demand of the convict, he(convict) landed a fatal blow on the abdomen of the deceased due to that his bowl raptured and ultimately he succumbed to his injuries on the next morning . The nature of injuries as defined by the doctor was sufficient to cause death of the deceased in ordinary course of nature.
5. Ld. Addl. PP requests for granting the maximum punishment to the convict, while considering the circumstances under which the victim is killed by the convict.
6. Ld. Addl. PP for state also placed her reliance on a decided case cited as " State of Punjab Vs Rakesh Kumar, 2009 Crl. L. J 396" wherein it is observed as under:
38
FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan " Protection of society and stamping out criminal proclivity must be the object of law which must e achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet challenges confronting the society. In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats."
8. In view of the contentions of the Ld. Counsels for both the parties, I also gone through the observations given by their lordship, in the aforesaid cases and analyse the circumstances under which the offence was committed wherein it transpired that the deceased was a poor rickshaw puller and convict was having dominion over him as deceased used to ply cycle rickshaw while taking the same on rent from the convict and was a poor and helpless man. The manner and the circumstances under which the victim received injuries and dead within the span of 24 hours of receiving the injuries, this conduct cannot be liked and 39 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan respected by the community at large.
9. In view of the above discussion, the convict Bullan is sentenced to the term of Regrious Imprisonment of three years and to pay a fine of Rs.
10,000/- in default of payment of fine he shall further undergo SI for six months for the offence u/sec.304(II) IPC. If the fine deposited, the same shall be paid to Sh. Mehi Sahani father of the deceased. Fine not paid.
10.Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convict free of cost. File be consigned to the Record Room.
ANNOUNCED IN OPEN COURT (B.S. CHUMBAK)
DATED 18/7/09 ASJ-3 (North-East) KKD,
DELHI
40
FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan 18/7/09 Present: Ld. Addl. PP for State.
Accused/convict produced from J/C Arguments on the quantum of sentence heard.
Vide separate detailed orders, the convict Bullan is sentenced to the term of Regrious Imprisonment of three years and to pay a fine of Rs. 10,000/- in default of payment of fine he shall further undergo SI for six months. If the fine deposited, the same shall be paid to the father Sh.Rafiq of the deceased. Fine not paid.
Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convict free of cost. File be consigned to the Record Room.
(B.S. CHUMBAK) ASJ-3 NE DISTRICT DELHI/18/7/09 41 FIR NO. 234/04, P.S NAND NAGARI, SC NO. 66/08,U/SEC. 304 IPC St. Vs. Bullan