Delhi District Court
State vs Tapan Kumar Majhi on 21 January, 2011
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IN THE COURT OF SH. DHARMESH SHARMA,
ASJII,NORTH, DELHI
SESSIONS CASE NO: 20/2010
FIR No: 05/10
P.S. Karol Bagh
U/S: 304 IPC
DATE OF INSTITUTION: 06.04.2010
DATE ON WHICH ARGUMENTS HEARD
AND JUDGEMENT HAS BEEN
RESERVED: 12.01.2011.
DATE ON WHICH JUDGEMENT
HAS BEEN DELIVERED: 21.01.2011
STATE
VERSUS
TAPAN KUMAR MAJHI
S/O LALNI MAJHI
R/O VILLAGE UTTAMPUR,
PS MOINA, DISTT. EAST MADINIPUR,
WEST BENGAL
APPEARANCES:
Ms. Neelam Narang, Ld. Addl. Public Prosecutor for the State
Mr. Harish Dasan, Ld. Counsel for the accused
21.01.2011
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JUDGMENT:
1. Accused Tapan Kumar Majhi S/o Lalni Majhi has been arraigned for trial by the Prosecution for causing bodily injuries to his nephew Krishan Majhi with iron cutter/plier (sandasi) with the knowledge and under such circumstances that it was likely to cause death as a result of which Krishan Majhi died on 05.01.2010.
FACTS
2. The case of the prosecution is that on 05.01.2010 at about 1:20p.m DD no. 20A Ex.PW 15/A was recorded at PS Karol Bagh, Delhi that one man had died at house no.15/3659, Regerpura, 2nd Floor, Karol Bagh, Delhi. The investigation was marked to ASI Deshpal (PW18) who reached the place of occurrence along with Ct. Pali Ram. It is the case of the prosecution that ASI Deshpal on reaching the place of occurrence found dead body of a boy aged about 1214 years lying on the floor and accused Tapan Kumar Majhi was present thereat who identified the dead body as belonging to his nephew namely Krishan Majhi S/o Hari Krishan Majhi; that physical observation of the dead body indicated injuries marks on both legs, foot, thigh; that there were injuries marks on both cheeks, scratches on both hands besides swelling; that the Mobile Crime Team was called and the place of occurrence was photographed; Statement of Tapan Kumar Majhi Ex.PW 18/A was recorded which briefly stated revealed that deceased had been brought to Delhi from Village Uttampur, PS Moina, Distt. East Madinipur, West Bengal to learn art 3 and craft of jewellery making and he was not putting his heart into the work and rather he had an attitude problem and, therefore the accused had beaten him up with iron cutter/ plier (sandasi) in the night of 2 nd January 2010 at about 11p.m.
3. The case of the prosecution further is that the dead body was sent for postmortem that was conducted on 09.01.2010 that brought out that there were as many as 67 injuries (it is actually 65 injuries) on the body of the deceased and the cause of death was opined to be "hemorrhage and shock from blunt force trauma to various parts on the body". The injuries were found to be ante mortem in nature and of varied dimensions indicating repetitive non accidental trauma, hemorrhage and shock resulting from the injuries "sufficient to cause in the ordinary course of nature". It appears that the postmortem report was obtained on 15.01.2010 and thereafter rukka Ex.PW 18/I was written which led to lodging of the present FIR at 8:40pm on 15.01.2010 Ex.PW 17/A. The accused was then arrested on that day itself vide memo Ex.PW 9/A and during the investigation the iron plier (sandasi) was recovered pursuant to the disclosure statement of the accused and statement of several other persons were recorded and after completion of the investigation the present charge sheet was filed.
CHARGE
4. It is needless to state that accused was charged as per Section 304 of IPC for bringing about the death of his nephew Krishan Majhi for which he 4 pleaded not guilty and claimed trial. It is pertinent to mention here that the accused hails from West Bengal and at the time of framing of charge he was put a query whether he had any objection if the evidence is recorded in English to which he had no objection, and during the trial it has been found that accused is well conversant with Hindi and can speak and understand it very well.
PROSECUTION EVIDENCE
5. The prosecution in order to prove its case examined as many as 19 witnesses. In the category of Public Witnesses the following witnesses were examined: PW1 was Nantujana. He testified that accused was residing along with his nephew Krishan Majhi who was learning the art / craft in jewellery making and that about 10 days back prior to the incident he had observed some black spots on the face of the deceased Krishan Majhi and when he inquired as to what had happened accused had replied that some hot oil had fell on his face causing burns. He also deposed that on 04.01.2010 at about 11:30p.m accused telephoned him and asked him to come over to his house where he found that deceased Krishan Majhi was lying ill on the bed and accused told him that Krishan Majhi had fallen from stairs in the morning and the witness stated that he stayed over night with the accused and his nephew and early in the morning deceased Krishan Majhi did not respond and they called a doctor who declared that he was already dead. He proved his statement to the police Ex.PW 1/A and also deposed taking over the custody of the dead body vide memo Ex.PW 1/B and also identified the photographs of 5 the deceased in the judicial file Ex.PW 1/1 to PW 1/9. In his cross examination, this witness deposed that he had never seen accused having any quarrel with deceased Krishan Majhi during his frequent visits to their accommodation;
6. PW2 Ajay Pratap Singh. This witness merely deposed that accused was residing along with is nephew Krishan Majhi on the second floor accommodation of the premise no. 15/3659 and he was informed on 05.01.2010 that Krishan Majhi had died. In his cross examination, this witness deposed that he never heard any cries of Krishan Majhi from second floor; PW3 was Chander Prakash Sharma . He was running a Chemist Shop at Hardhyan Singh Road, Biddanpura, Karol Bagh, Delhi who deposed that on 04.01.2010 at about 8:30p,m accused came along with one boy who was having swelling on both of his legs and the accused told him that the child had fallen from the stairs. He deposed that he advised the accused to take the child to some hospital and in the meantime he had given paracetamol and diclosodium 50mg so as to heal the pain and fever of the injured boy. PW4 was Manas Majhi brother in law of the accused . He deposed about the accused residing with his nephew, teaching him about the art and craft of jewellery making. He deposed that about 24 days prior to the incident he had noticed some blank marks on the cheek of deceased Krishan Majhi and accused told him that it was due to application of some hot oil which caused burns. In his cross examination, he deposed that he had never seen accused having any quarrel or giving beating or harassing to the deceased. PW5 Sh. 6 Divash Chander Maity. He deposed that on 05.01.2010 at about 1011a.m accused telephoned him and informed that his nephew Krishan Majhi had died; that he reached the spot and finding some injuries marks on the dead body they informed the police about the incident; PW6 was Suryakant. He was in the business of jewellery work at the first floor of 15/3659 Regharpura, Karol Bagh, Delhi. He deposed that he had been sharing his business clients with the accused Tapan Kumar Majhi. In his cross examination, he denied ever hearing any cries from deceased boy from the second floor; PW7 was Pradeep Soni, Gold Smith/ Gold Polisher running his business from 16/3645, Regharpura, Karol Bagh, Delhi. He merely stated that accused was working as a jewellery maker and denied any knowledge about the incident; PW 8 was Tapan Kumar Jana. He was the main witness for the prosecution who in his statement u/s 161 Cr.PC stated to the police that accused had brutally beaten up his nephew Krishan Majhi but he did not support the prosecution case when examined in the court; PW10 was Hari Kishan Majhi who was the father of the deceased boy. I shall dwell on his evidence later on in this judgment. However, suffice to state that this witness deposed that his son had called him a day earlier to his death and had informed him that his uncle used to beat / torture him; PW 13 was Shri Krishana Behra. He deposed that a day prior to death of Krishna Majhi, he was called by accused at about 7pm and he went to his house where the boy was found unwell having injuries and swelling on his knees and when he inquired the boy told that he had fallen from the stairs; that he along with the accused took the injured boy to a nearby Chemist and some medicines were taken; that he left but the next day at about 10 am 7 accused again called requesting him to brig some doctor to his house, that he reached the house of the accused with a doctor where on examination by the doctor the boy was pronounced dead.
7. The following witnesses were examined: PW 14 was Dr. Sreenias M. Associate Professor from Maulana Azad Medical College, Delhi who conducted the postmortem on the body of the deceased and proved the same mark Ex.PW 14/A. He also examined the iron plier (angle) (Sandasi) and gave an opinion Ex.PW 14/B that the blunt force impact could have been caused on the body of the deceased by using the said weapon. The remaining witnesses were police witnesses: PW 9 was Ct. Diwan Singh. He was associated with the investigation in this case on 15.01.2010 and 16.01.2010 along with SI Mahipal during which time the accused was arrested, interrogated and allegedly on his disclosure the iron plier / sandasa Ex.P1 was recovered; PW 11 was Ct. Ramesh Kumar. He was a photographer with the Mobile Crime Team . He produced the photographs which are already marked Ex.PW 1/1 to 1/9 (Colly); PW 12 was SI Rahul Kumar. He was deputed to visit the native place of the deceased and deposed that he reached the village Goranga Chowk,PS Moina, Distt. West Mednipur, West Bengal where he met the parents of the deceased and recorded their statements u/s 161 Cr.PC on 12.03.2010; PW 15 was HC Mahinder Singh. He recorded the DD Ex.PW 20/A on 05.01.2010 at about 1:20p.m Ex.PW 15/A; PW 16 was HC Kanhaya Lal. He deposed reaching the mortuary MAMC,Delhi on 09.01.2010 and handing over the dead body to the relatives of the deceased vide memo Ex.PW 16/A 8 and 16/B; PW 17 was HC Atendra Singh. He was duty officer at PS Karol Bagh who proved recording of present FIR Ex.PW 17/A; PW 18 was ASI Desh Pal Singh who initially investigated the matter and PW 19 was SI Mahipal Singh who investigated the case after lodging of the present F.I.R. STATEMENT OF THE ACCUSED
8. On the close of he prosecution evidence, all the incriminating evidence brought on record were put to the accused as per Section 313 Cr.P.c.. The accused denied causing any injuries to the deceased nephew. He stated that the deceased used to stay alone at the premises during the day hours, who used to cook his own food and go out for purchasing household items. He stated that deceased used to indulge in naughty acts and he never divulged him about his injuries on 03.01.2010 and rather he informed that he had fallen from the stairs. He claimed innocence and he did not prefer to lead any evidence in his defence.
9. I have given my thoughtful consideration to the submissions made by Ld. Addl. PP for the State and Ld. Counsel for the accused. I have also meticulously perused the judicial record.
10. Ms. Neelam Narang, Ld. APP for the State argued that the prosecution in order to bring home the guilt of the accused has established the following facts and circumstances on the record:
i) That the deceased Krishan Majhi had been residing with the accused on the second floor portion of the house mark 'A' in site plan 9 Ex.PW 18/J;
ii) That the accused all the time on 04.01.2010 till the time of the death of the deceased boy had been seen at the spot; so much so that on 04.01.2010 at about 8:30p.m he had taken the deceased boy to the Chemist shop of PW3 along with PW 13 Shiv Krishan Bebri;
iii) That the deceased boy was found dead in the morning at about 9:30 to 10a.m on 05.01.2010 with visible marks of injuries all over his body as shown in photographs Ex.PW 1/1 to 1/9 ;
iv) That the postmortem on the body of the deceased revealed that there were as many as 67 injuries on his body and as per the postmortem report Ex.PW 14/A the injuries were indicative of repeated non accidental trauma with blunt force impact;
v) That the version of the accused that the deceased had fallen from the stairs and sustained injuries was highly improbably and unbelievable and it is in the evidence of PW 14 Dr. Shri Niwas that the injuries were inflictied by blunt force impact to various parts of the body which were classified as "defence wounds";
vi) That the accused on his arrest on 15.01.2010 also got recovered the iron plier / cutter (sandasi) from the wooden jewellery box / petty in his room vide memo Ex.PW 9/D as per sketch Ex.PW 18/K pursuant to his disclosure statement Ex.PW 9/C and the said iron plier / cutter (sandasi) Ex.P1 was examined by PW 14 Dr. Sri Niwas who in his uncontroverted evidence testified that the injuries on the body of the deceased could have been sustained with such instrument which opinion is Ex.PW 14/B;
vii) PW10 Hari Kishan father of deceased boy testified in the court that his son a day prior to his death had talked to him and had informed him that his uncle / accused had been torturing him; 10
Viii) Lastly, that the accused on 05.01.2010 made as statement to the IO which is Ex.PW 18/H which is admissible in evidence because at that point of time he was not an accused not under custody of the police and was in fact arrested on 15.01.2010.
11. Per contra, Mr. Harish Dasan, Ld. Defence counsel for the accused vehemently urged that none of the prosecution witnesses supported its case that accused ever harassed or tortured his deceased nephew and rather they testified in the court that the two were having cordial relationship. He urged that assuming that 67 injuries were inflicted upon the deceased, it is surprising that no one heard any cries or screaming or any alarm raised by the deceased boy; that there was no motive established by the prosecution for accused having done the alleged act. Mr. Dasan, Adv. also challenged the evidence of the doctor that the nature of injuries indicated blunt force trauma impact while the deceased was in 'defensive posture' and he vehemently urged that the deceased could have very well sustained such injuries on a fall from the stairs.
12. At the outset, the case of the prosecution is based on circumstantial evidence against the accused. There is no direct evidence as such that the accused was seen assaulting or torturing or beating his deceased nephew on 3rd or 4th January 2010 except the evidence of PW 10 on whose evidence I shall dwell later on.
LAW ON CIRCUMSTANCIAL EVIDENCE 11
13. At the outset, the prosecution case is based on circumstantial evidence against the accused persons. In the case of Sharad Biridhichand Sarda v. State of Maharashtra, (SC) ,1984 A.I.R. (SC) 1622 : 1984(4) S.C.C. 116 : 1984 Cri.L.J. 1738, their lordships discussed the requirement of law as under:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the ac cused is guilty.
(3) the circumstances should be of a conclusive nature and ten dency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
[Paras 13 and 27]
14. In the light of the said proposition of law, on scanning the judicial record I find that the deceased had been residing with the accused on the sec ond floor portion of the house which was having commercial portions on the ground and first floor and it is for that reason that no one heard the deceased screaming or crying for help. Much mileage is sought to be drawn from the fact that none of the witnesses examined by the prosecution said about any discord between the two or that accused ever abused or assaulted the deceased in their presence. Indeed, PW1 only had to say that about 10 days prior to the incident 12 he had seen some black spot on the face of deceased Krishan Majhi and the ac cused told him that some hot oil had fallen. Similar is the version of PW4 Manas Majhi. It must be seen that the boy had migrated hardly few days back from West Bengal and he did not understand Hindi and could not communicate with others as such.
15. Having said that, I find substance in the plea of Ld. APP for the State that the deceased during the relevant time had all the time been seen in the company of the accused. The overwhelming evidence on the record is in regard to the nature and extent of injuries on the body of the deceased as demonstrated in the postmortem report Ex.PW 14/A. It would be appropriate to point out the description of the injuries and reproduce the same in toto it understand its full im plication:
1. healed wound in an area of about 2cmx2cm (R) side of forehead over the (R) parital area, slightly elevated with a linear whitish coloure bridge of fibrous tissue 1.8cm x 0.1cm, the allevation being caused by underlying fibrous tissue formation in the scalp layers. Impression : healed laceration of the scalp, duration : more than 2 weeks (14 days) old.
2. Healing wound 2cm x 2cm on the (L) side of forehead 1cm above the middle of the (L) eyebrow, there is a legion triangular shaped 0.6 cm x 0.7cm showing loss of layer of skin and reddish granulation tissue at the base, just below left there is a patch of 0.9cm x 0.8 cm with loss of superficial layers of skin, replaced with fibrous tissue hypo pigmentation Impression: healing abrasion, duration about 1012 days.
3. Healed wound, present in the form of fibrous tissue, smooth and slightly hypopigmented present on the (R) temporal frontal region of scalp, 8.5 cm above and 3cm in front of (R) ear lobe 5.5cm above and 1cm behind lateral end of (R) 13 eyebrow. Impression : healed split laceration;. (Haematoma of size of 5cm x 5cmx 0.3cm present in the underling scalp layer of the front temporal region. Duration about 2 weeks old.
4. Linear scratch abrasion 2cmx0.2cm present on the (L) side of forehead 3cm above and 1.5 cm behind the lateral end of (L) eyebrow; during 57 days.
5. Scar squatting abrasion 0.3cm x 0.2cm present on the (L) side of bridge of nose 1cm below the glasella; duration 57 days old.
6. Reddish slashed abrasion, 02.cm. X 0.2cm present on the (L) ala of the nose . duration 25 days old with haemorrhage in the underlying soft tissue.
7. Erythmatous wound (reddish in colour) 0.5cm x 0.3 cm with loss of superficial layers of skin. Present on the (L) side of face on the (L) cheek(not readable) 2cm below the (L) eye.
Impression : burn mark.
8. Healing wound 3cm x 2cm almost rectangular shaped present on the L side of face 1cm outer to the outer angle of (L) eye and just above the zygomatic arch loss of superficial layers of skin, well demarcated margin with ale yellowish base . Impression healing abrasion duration about 1012 days.
9. Healing wound 1.2 cm x 0.3 cm almost oval in shape situated 0.5cm below the outer lower corner of wound no. 8 with loss of superficial layers of skin well demarcated margins and a pale yellowish base of apethlialisation . impression healing abrasion, duration 1012 days.
10. Multiple healed linear scratch abrasion present in an area of 5cmx 5cm on the (L) cheek raging in size 3cm x 0.2cm to 1cm x 0.3cm, present in the form of streaks of whitish fibrous tissue. duration about 1214 days.
11. Healing wound 1cm x 0.5cm with sloping margins, loss of superficial layers of skin, reddish granulation tissue present at the base. Impression healing scratch abrasion duration about 14 1214 days. Situated on the left cheek 1cm above the angle of mandible.
12. Healing wound 6cm x 3.5cm present on the ® cheek of the face with loss of superficial layers of the skin, well defined margin sloping edges with epthlelialization base having reddish brown granulation tissue, open part of the wound shows irregular patches of brownish whitish fibruous tissue, surrounding the wound there are 6 nearly oval shaped patches sized about 0.3cm x 0.2 cm of whitish fibrous tissue. Impression: Burn / scald injury duration about 10 days old. (some portion not readable)
13. Brownish Reddish abrasion 1cmx0.7cm present on the middle part of (L) half of lower lip, duration about 35 days old.
14. Multiple hemorrhagic area about 0.3cm x 0.4 cm present on he lower lip. duration 14 days.
15. Healing wound, irregular oval shaped, 3cm x 1cm with wound defined margin (irregular), loss of superficial layers of skin, edges sloping, reddish brown granulation tissue present at the bone. Impression: Burn / Scald injury. Duration: about 10 days old. (situated on the chin area).
16. Multiple abrasion reddish brown in colour about the size of 0.2cm x 0.2cm present around the mouth area; duration 37 days old
17. Healing wound in an area of 3cm x 3cm on the (L) side front of neck just above the thyroid cartilage. There are 3 patches showing loss of superficial layers of skin, with reddish white fibrous tissue at the base, sloping edge . Impression: healing abrasion during - 1012 days old.
18. Multiple healed linear scratch abrasion on the left lower jaw like ranging in size 0.5cm x 0.1cm, 1.5cm x 0.2 cm, (L) present in the form of fibrous tissue whitish in colour, duration about two weeks.
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19. Bluish red contusion 2x2mm present in the (L) of neck present above the middle of L clavicle, Duration 13 days old.
20. Reddish brown Linear abrasion 1cm x 0.3cm present on the L side front of neck 1.5cm below the middle of Jaw line. Duration 13 days old.
21. Healing wound 1cmx1cm, loss of superficial layers of skin, reddish black tissue on either side of it there are linear abrasion about 1cm x 0.2cm with brownish red scalp on the front of parts of (R) shoulders. Impression - healing abrasion duration 712 days old.
22. Multiple healing wounds in an area of 5cm x 3 cm present on the top of R shoulders, as patches of whitish fabrous tissue Impression healing abrasion, duration about 14 days
23. Oval shaped wound 1.5 cm in diameter with distinct sharp marks and loss of superficial layers of skin reddish blue in colour. Impression - deep abrasion of scraping of skin on the back of R shoulder Duration 27 days old.
24. Multiple pinpoint reddish brownish abrasions in an area of rd 2cm x 2cm on the outer aspect of upper 1/3 of (R) arm. Duration 510 days old. Impression - caused by sharp painted object
25. Bluish red contusion 16cm x 10cm on the outer aspect of the lower ½ of the (R) arm and elbow with swelling. Impression of blood in the underlying soft tissues and in the inside layers of the arm Duration 13 days.
26. Healing abrasions to 2cmx1cm and 1cm x 1cm in sizes, on the outer back (R) pale yellowish brown in colour covered with yellowish like material. Duration 1014 days old.
27. Healing (abrasion) wounds 0.5cm x 0.6cm, and 1cmx0.5cm back of (R) elbow, yellowish. Duration about 2 weeks old. Impression healing abrasions.
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28. Multiple liners scratch abrasions present over the back of (R) forearm , sizes ranging from 5cm x 0.5cm to 3cm x 0.3cm. directed obliquely brownish scale which can be easily separated showing fibrous tissue.
29. scabbed abrasion, reddish brown in colour, present on the back of R hand 3cm below the wrist joint, overlying the fifth matacarpol bone. Duration 37 days old.
30. Multiple reddish . Slashed abrasions raging from 1cm x 0.5cm to 0.5cm x 0.3cm on the back of fingers of R hand. Duration 37 days old. Figure no. 24 to 30 to be defence wounds.
31. Healing abrasion 1cm x 1 cm present on the point of L shoulder almost oval in shape, reddish yellow base, with a linear brownish abrasion 3cm x 0.2cm down and and incised lying obliquely downward and inner and front part of it. duration 10 days old.
32. Scalp separating abrasion 1.5cm x 0.5cm on the point of rd upper 1/3 of (L) arm. Duration 712 days old.
33. Multiple healed abrasion about 0.5cm x 0.3cm in size on the back (L) arm, showing whitish tissue duration more than 2 weeks.
34. Multiple slashed and slab separating abrasion present in an area of 5cm x 4 cm on the back of (L) elbow 4 in nature, brownish,. reddish slab present, one wound showing reddish yellow appethelialization at base reddish, brown duration 712 days.
35. Reddish brown scabbed abrasion present on the back of L forearm. 3Cm x 0.5 about 3 cm above the L wrist front almost horizontally placed duration 13 days. Injuries no. Sl. no. 33, 34 and 35 appear to be defence wounds.
36. Reddish brown scabbed abrasion present in an are of 4cm x rd 0.8cm present on the outer part of middle 1/3 of L forearm, duration 13 days. (directed obliquely slightly) 17
37. bluish red contusion 15cm x 10cm on the back and outer aspects of L arm upper ½. blood in the underlying soft tissue duration 13 days.
38. Multiple healing wound on the back of middle of R arm sized about 0.5cm x 0.6cm, showing reddish white fibrous tissue. duration about more than 2 weeks old.
39. Two healing wounds present on the lateral aspect of (R) side of chest situated 3cm below and outer to (R) nipple placed horizontally in the form of 2 lines of whitish fibrous tissue about 4cm in length 0.5cm apart and almost parallel to each other. Impression healed incised wound caused by sharp cutting weapon / object . Duration more than 2 weeks old.
40. Multiple pinpoint reddish brown scars separable easily with reddish white fibrous tissue, present in an area of 6 cm in length on the left lower front of abdomen 3cm outer to umbliques . Impression caused by sharp pointed object , duration 1014 days.
41. Infected scars separated abrasion 2cm x 2cm on the front of left lower abdomen in the inguynal region 2cmbelow the anterior superior illiac spine reddish yellow appethelialization covered with yellowish pin like material, duration 1014 days old.
42. Linear scratch abrasion 4cm x 0.2 cm .. horizontally on the lower front of abdomen just below the umbliques. duration 710 days old.
43. Abrasion reddish brown 5cm x 4 cm on the lateral aspect of R hip 2cm below the illacrast duration 37 days old.
44. Swelling with bluish red contusion 15cm x 15 cm outer (R) knee joint.
45. Abrasion 6.5cm x 2cm present on the inner part of middle rd 1/3 of (R) thigh, 11cm above the knee joint.
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46. Abrasion 0.5cm x 0.5 cm with loss of superficial layer of skin, reddish white tissue on the front of R thigh 3.5cm below injury no. 45.
47. Multiple healing / healed wound present all over the front of R leg 1cm x 1 cm to 0.5cm x 0.5 cm white fibrous tissue present. Duration more than 2 weeks.
48. Infected wound nearly circular in shape 1cm in diameter on rd the front of R leg middle 1/3 , edges sloping, blue reddish yellow granulation tissue present covered with yellowish tissue like material.
49. Multiple healed/ healing wound present all over front of L leg size ranging from 1cmx1cm to 0.5cm x 0.5 cm white firbous tissue present duration 72 weeks.
50. Infected wound 5cmx3cm on the front of R ancle appethelialization, reddish yellow granulation tissue at the base edge sloping duration about 2 weeks.
51. Multiple scabbed abrasion, reddish brown present on the dorsum of L foot size ranging from 1cm x 0.5cm to 0.5cm x 0.2 cm. Duration 310 days.
52. Infected wound with loss of superficial layer of skin, sloping edge, yellosh appethelialization covered with yellowish rd pigmentation present on the back of middle 1/3 of R arm duration 514 days.
53. Multiple reddish brown slashed abrasion, 2cm x 2cm to 1cm x 0.5cm present. on the left knee region.
54. Bluish red contusion at the back of both thigh and legs with swelling
55. patterned reddish brown in a 5cm x 2cm on the back R thigh rd middle 1/3 shape as depicted below duration 15 days old.
56. Reddish brown abrasion 2 x 3 cm on the back of R side of chest 2cm to the R of scapula at the level of lower angle of scapula duration 37 days.
57. Multiple pin point reddish brown slashed easily separated with reddish white underlying fibrous tissue present over the back of chest.
58. A healed wound 3cm x 4cm on the back of abdomen in the mid line overlying the spines process first lumber vertabra 19 reddish white present duration 23 weeks.
59. Multiple scab separated abrasion with reddish white base size about 0.3cm x 0.2 cm to 1cm x 0.5 cm present on the back of abdomen,. buttocks and saceral region. Duration 1015 days.
60. A healed wound present in the form of a patch of whitish hypopigmentic skin 2cm x 2cm on the inner back of lower rd 1/3 of (R) forearm duration more than 2 weeks, Impression healed abrasion. There is a deformity. of the underlying bone rd and shaft of ulna, there is a fracture of the distal 1/3 of the shaft of ulna, the distal fractured segment displaced. Centered and down ward with respect of the fractured segment. There is presence of soft callus formation around the fracture site. duration about 23 weeks old.
rd
61. Bony deformity of the left forearm lower 1/3 there is a rd fracture of the distal 1/3 of shaft of ulna, the distal fractured segment of bone edge displaced downward and backward with respect to the fractured segment. The fracture edge of bone are smooth and rounded and covered with a layer of cartilage . There is presence of soft callous around the fracture site. Duration about 23 weeks old
62. Multiple slashed / abrasion, reddish present in an area of 7 x 4cm on the back of lower ½ of L forearm ; ranging in size about 0.3cm x 0.2cm to 0.4cm x 0.5cm. Duration 712 days old.
63. Healed abrasion in the form of whitish fibrous tissue 2cm x rd 1cm on the back of L forearm upper 1/3 duration more than 2 weeks old.
64. Brownish red slashed abrasion 2cm x 1cm on the back of R ankle. Duration 510 days old.
65. Multiple healed wound in the form of hypopigmented whitish fibrous tissue size ranging from 1cm x 0.5cm to 0.5cm x 0.3cm on the inner and outer aspects of both ankles. Duration more than 2 weeks.
Multiple healed wounds in the form of streaks of fibrous size 4cm x 0.3cm to 2cm x 0.2 cm present all over the back of both legs. Duration more than 2 weeks old.
16. Perusal of the description of the injuries vis a vis the location of the injuries on the skeleton chart prepared by the doctor would show that as many as 20 14 injuries were on the different parts of the head viz injury no. 1, 3, 12 on the right side whereas injury no. 2, 4, 6, 8, 9, 10, 15, 17 to 20 on the left part of the head / skull. Then there were injuries on the shoulders viz., injuries no. 22, 23 on the right back side and injury no. 16 on the front side of the shoulder.There were injuries on both fore hands viz., injury no. 22,23, 25 to 30, 38 and 52 on the back of the left forearm and injury no. 33, 34, 37, 61 to 63 on the back of right forearm. There were injuries on both knees and the front portion on the legs below viz., injury no. 42, 44, 45, 47, 48, 50 on the right leg and injury no. 49,51, 53 on the left leg besides injury no. 64 and 66 on the right and left ankle respectively. Infact, there were fractures of lay bones of both the fore arms.
17. I must say that the nature and extent of injuries indicate that the injuries were sustained probably when the deceased boy was squatting or lying down with his head down on his knee and protecting his head with his forearms. The postmortem report Ex.PW 14/A reveals that the numerous injuries that were found present were at various stages of healing suggesting repeated/repetitive non accidental trauma. It was also observed that except for injuries no. 7, 12, and 15 which were burn injuries and few others that could have been caused by some sharp pointed out object, all other injuries were caused by blunt force impact. There was found extensive loss of blood due to bleeding into soft tissues and muscles caused by blunt force trauma by various parts of the body. The loss of blood was sufficient to cause shock and cardio vascular arrest and doctor gave an opinion that the injuries were collectively sufficient to cause death in the ordinary course of nature.
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18. The real issue is whether these injuries could have sustained on a fall from the stairs? The position of the stairs was explained by PW 18 ASI Deshpal Singh during his cross examination on court questions. PW 18 deposed that the stairs from the second floor to the first floor were covering a height of about 10ft. and there were about 15 steps / pedia but the stairs were not going down uniformly/directly and there were two curves/bend leading to the first floor and the tiles of the floor were found intact and not damaged in any manner. PW 18 further elaborated that the width of the stairs was hardly 2 to 2 ½ ft and there was no supporting railing or bar in the stairs. This position was not challenged in the cross examination by the defence. There was hardly any cross examination of the doctor nor any suggestion given that injuries could have been sustained on a fall from the stairs. The defence plea is patently false and concocted, leading credence to the prosecution case. In the case of Sharad Biridhichand Sarda (supra), it was held that:
It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. Where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. Before a false explanation can be used as additional link, the following essential conditions must be satisfied :
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstances point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.22
If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise.
19.In my opinion, the injuries reflected in the postmortem report could not have been sustained in the manner suggested by the defence and there is a very high degree of probability that such injuries were sustained in the nature of repetitive assault upon the deceased over a period of time. The defence plea that deceased boy was very naughty and could have sustained self inflicted such injuries is not fathomable and is an absolute sham to hoodwink the Court and the process of law. The deceased boy was hardly 14 years of age very thinly built and the young boy at such age have very strong bones otherwise and juxtaposed with the position of the stairs, that has been brought out in the evidence of PW 18, and it is not comprehendable that such injuries could have been sustained on fall from the stairs. At the cost of repetition, the injuries were sustained when the boy was assaulted who must have taken defensive postures which explains the injuries on the forearms, knees and the front portions of the legs and back that were most probably caused over a period of time.
20. To my mind, the nature and extent of injuries sustained by the boy speak for itself. At the cost of repetition, the accused had alone been seen with the deceased boy. They were only one residing in the accommodation of the second floor portion of the house. Further, the conduct of the accused in not taking the injured boy to the hospital despite such advise by the Chemist PW3 indicates that he made an attempt to cover up his crime rather than providing timely medical aid to the injured boy.
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21. Mr. Dasen, Ld. Defence counsel lastly assailed evidence of PW 10 Hari Kishan pointing out that the witness admitted that their father had gifted a piece of land measuring 100 sq. yards to his wife after about 15 days of the death of his son and they had made an attempt to dispose of the same and some litigation was pending between the witness and his father. In other words, it was sought on the challenge that the witness had motive to falsely implicated accused over some property matters. Well, the evidence of PW 10 is only to the effect that his son had called a day prior to the death and had complained that his uncle / accused had been torturing him and that as his father he pacified him that he would be coming Delhi to take him back to his native place and the next day accused called him and informed that his son was no more. I do not see as to how the evidence can be discarded at all. It is but natural for a father to speak to his son and it is natural for the son to complain to his father as to what was being meted out to him by his uncle/accused. Moreover, the deceased boy had no one to fall back upon. He hardly knew anyone before whom he could confide and he must have been quite petrified all the time for the repeated beatings inflicted upon him by the accused.
22. So far as the recovery of iron plier / cutter (sandasi) Ex.P1 on 15.01.2010 is concerned, there is no challenge in the evidence of PW 19 that it was planted upon the accused except for suggesting the fact that there was no blood stains on the same. The recovery of iron plier / cutter (sandasi) was effected from the accommodation in occupation of the accused from a wooden 24 jewellary box which was only in the knowledge of the accused. The nature of iron plier / cutter (sandasi) is such that it is an instrument about 15 cm long with two scissors like handles having blunt semi round edges on its corner and PW 14 on examining the said weapon gave a report Ex.PW 14/B that the injuries could have been possible by use of such weapon which in the Court has not been controverted either.
23. Before parting with this judgment, the point canvassed by the learned APP that statement of the accused made to the police on 05.01.2010 Ex. PW 18/A is admissible in evidence as at that time he wasn't an accused, cannot be accepted in law. The said evidence is inadmissible in law as per section 25 of the Indian Evidence Act. The said statement although not challenged in the cross examination of PW18 can not be use against the accused except for his conduct that he was in the company of the deceased all the relevant time which conduct is admissible u/s 8 of the Indian Evidence Act. Reference here can be had to the decision by the Apex Court in the Case of Aghnoo Nagesia v. State of Bihar, 1966 Cr.L.J.100.
24. In view of the discussion, the chain of circumstances have been cogently established by the prosecution which are complete in all respect and in all human probabilities it is difficult to discern that the accused is innocent of the crime reported against him.
25. The prosecution is, therefore, able to bring home that the accused is 25 directly responsible for causing the injuries on the body of the deceased. The offence committed clearly falls under Section 304 Part II of IPC as the act was committed with the knowledge that it is likely to cause death without any intention as such to cause death.
26. In the said view of the discussion, the accused Tapan Kumar Majhi S/o Lalni Majhi is convicted u/s 304 Part II of the IPC.
27. Let he be heard on the point of sentence on 22.01.2011.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA) COURT TODAY i.e 21.01.2011 ASJII / NORTH, DELHI 26 SC 20/10 21.01.2011 Present : Mr. G. S. Guraya, Ld. Addl. Public Prosecutor for the State Mr. Harish Dasan, Ld. Counsel for the accused
Vide separate judgment of even date, the accused Tapan Kumar Majhi S/o Lalni Majhi is convicted u/s 304 Part II of the IPC. Let he be heard on the point of sentence on 22.01.2011.
(DHARMESH SHARMA) ASJII / NORTH, DELHI 27 IN THE COURT OF SH. DHARMESH SHARMA, ASJII,NORTH, DELHI SESSIONS CASE NO: 20/2010 FIR No: 05/10 P.S. Karol Bagh U/S: 304 IPC DATE OF INSTITUTION: 06.04.2010 DATE ON WHICH ARGUMENTS HEARD AND JUDGEMENT HAS BEEN RESERVED: 12.01.2011.
DATE ON WHICH JUDGEMENT HAS BEEN DELIVERED: 21.01.2011 STATE VERSUS TAPAN KUMAR MAJHI S/O LALNI MAJHI R/O VILLAGE UTTAMPUR, PS MOINA, DISTT. EAST MADINIPUR, WEST BENGAL APPEARANCES:
Mr. G. S. Guraya, Ld. Addl. Public Prosecutor for the State Mr. Harish Dasan, Ld. Counsel for the accused 28 22.01.2011 ORDER ON SENTENCE Heard on the Point of Sentence and perused the record.
Mr. Harish Dasan, Ld. Counsel for the convict points out that accused/convict is an unmarried male about 24 years of age and he was in JC w.e.f. 15.01.2010 till 02.06.2010. It is urged that the accused/convict is not a habitual offender nor a previous convict nor he has faced any other criminal case during his life time. It is also vehemently urged that accused/convict had brought his deceased nephew from their village in order to make him to learn the art / craft of jewellary making and there was no motive for him to cause death of the deceased and he is an innocent. It is urged that the convict is an illiterate person and he has been victimized by his brother PW10 over property dispute. It is urged that either he be sentenced for the period already undergone by him in judicial custody during this trial or lenient view be taken releasing him on probation for good conduct. This Court is further informed that the accused / convict are five brothers, two of the brothers are married and residing separately while two of the brothers are younger to him and the old age parents as well as two minor brothers are dependent on his earning for their livelihood.
Per contra, Ld. APP for the State has urged that the accused/convict be given the maximum sentence provided under the law 29 i.e 10 years of rigorous imprisonment.
The facts of this case have been incorporated in detail in my judgment dated 21.01.2011 and the same are not reproduced herein for the sake of brevity. The prosecution has brought home the facts and circumstances beyond reasonable doubt that the convict / accused had a direct role in inflicting as many as 65 injuries on the body of his nephew Krishan Majhi and the injuries were in the nature of "repetitive / repeated non accidental trauma with blunt force". The nature of injuries tell its own tale and it is but apparent that the deceased boy was subject to utmost cruelty and the deceased suffered extreme pain, mental and psychological trauma. The plea of absence of motive is irrelevant when a complete chain of circumstantial evidence has been established against the accused by the prosecution on the record. There are no mitigating circumstances which could invite this Court to take a lenient view against the convict. It bears in my mind that the convict / accused never intimated about such injuries and the medical condition of his deceased nephew to his parents at any point of time prior to his death.
In a case decided by the Apex Court titled Giassudin v. State of Andhra Pradesh, AIR 1977 SC 1932, it was observed that the main purpose of the sentence is to make the accused realize that he committed an act which not only harms himself but the society as well; and that punishment is designed to protect society by deterring potential offenders 30 and to reform the offenders so that he can reclaim himself as a law abiding citizen for the good of the society as a whole. In the instant case, the punishment must commensurate with gravity of the offence committed by the accused/convict.
Therefore, in the totality of the facts and circumstances of the case, the convict is sentenced to undergo rigorous Imprisonment for a period of five years and also imposed fine of Rs.5,000/ in default to undergo rigorous imprisonment of three months. The convict was in JC w.e.f. 15.01.2010 till 02.06.2010 and he shall be given benefit of Section 428 Cr.P.C.
He has also been apprised that he shall be at liberty to file an appeal against this Judgment and Sentence before the High Court of Delhi. He has been apprised that in case they cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
File be consigned to the Record Room.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA) COURT TODAY i.e 22.01.2011 ASJII / NORTH, DELHI