Delhi District Court
State vs . Suman Chhetri on 17 September, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R02582010
SC NO: 54/10
FIR NO: 155/10
PS PAHAR GANJ
STATE vs. SUMAN CHHETRI
U/s 302 IPC
JUDGMENT
1 Sl. No. of the Case 54/10
2 Date of Committal to Sessions 21/09/2010
3 Received by this court on transfer 06/05/11
4 Name of the complainant VIPIN KUMAR
5 Date of commission of offence 08/06/10
6 Name and Parentage of accused SUMAN CHHETRI S/o Sh.Narayan
Chhetri R/o T270, Green Market, Ram
Dwara Road, Paharganj, Delhi
(Permanent address: Vill. Kursang
Mahanadi, Distt. Darjeeling, West
Bengal)
7 Offence complained of U/s 302 IPC
8 Offence charged of U/s 302 IPC
9 Plea of guilt Pleaded not guilty
10 Final order Convicted U/s 304 (II) IPC
11 Date on which order reserved 16.9.2011
12 Date on which order announced 17.9.2011
Page 1 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 2 BRIEF REASONS FOR DECISION
1. Case of the prosecution as per charge sheet is that on 8/6/2010 at 11.00pm DD No.27 A Ex.PW11/A was received at PS Paharganj from PCR to the effect that a man has been thrown down from the roof. It was assigned to ASI Rajmal , who reached House NO. T270, Gali Bada Ram Dwara, General Market, Paharganj, Delhi along with Ct. Kapil Dev. Injured was found removed to Lady Harding Medical Hospital. ASI went to the hospital while leaving constable to preserve the spot. At the hospital , he met complainant Vipin Kumar who gave his statement Ex.PW2/A as per which he was residing nd at house No.T270 with his maternal uncle Dhirender Chaudhary on the 2 rd floor. 3 of his house is occupied by Suman Chetri and his wife. On 8.6.2010 rd at around 10.30 pm Vipin and his uncle went to sleep on the roof of 3 floor. They found Suman Chetri and his wife were also preparing their bed on the roof. Vipin objected to Suman Chetri as to why he urinated on his bed . Upon this Suman Chetri caught hold of Vipin by his vest while denying that he has not urinated. When Vipin insisted that it is Suman who has urinated on his Page 2 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 3 bed a day before. On this Suman started beating him. Vipin's Uncle Dhirender Chaudhary came to his rescue. Suman started manhandling him as well . Suman pushed Dhirender Chaudhary from the chest as a result of rd which Dhirender fell down from the roof of 3 floor to the roof of first floor of the adjoining house . Vipin went rushing to him and found Dhirender bleeding profusely from head. He dialed 100 and brought Dhirender to Gali. He was removed to hospital by the police. Vide MLC Ex.PW15/A injured was declared "brought dead". On the statement of Vipin, vide ruqqa Ex.PW11/B FIR Ex. PW1/A U/s 302 IPC was registered apart from endorsement on ruqqa Ex.PW1/B.
2. Crime Team and photographer were called. Crime Team Report is Ex.PW10/A and photographs are Ex. PW5/A to PW5/E and negatives being Ex.P1 to P14. Sr. Officials were informed. Further investigation was taken over by Inspector Subhash Meena. He prepared site plan Ex. PW14/A, blood sample, blood stained earth etc were lifted form the spot vide memo Ex.PW6/A. PCR call record is Ex.PW3/A. Scaled site plan is Ex.PW9/A. IO Page 3 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 4 prepared unnatural death report Ex.PW14/B, brief facts for the purpose of post mortem as Ex.PW14/C apart from request letter Ex.PW14/D. Post mortem report is Ex.PW13/A as per which deceased Dhirender suffered 7 anti mortem injuries and no.1 on his head was found to be fatal. Body of the deceased was identified vide statement Ex.PW7/A and Ex.PW7/B, body was handed over to widow of deceased vide memo Ex.PW2/E. Accused Suman Chetri was arrested from his house vide arrest memo Ex.PW2/B and personal search memo Ex.PW2/C. His disclosure statement Ex.PW6/B was recorded. Exhibits were sent to Forensic Science Laboratory , Rohini qua which report is Ex.PX and PZ. As per report the cloth of deceased and blood lifted from the spot were of B group. Statement of witnesses were recorded . Upon conclusion of investigation , charge sheet was filed U/s 302 IPC.
3. After compliance of 207 Cr.P.C., case was committed to Sessions. Accused was charged U/s 302 IPC by Ld. Predecessor on 7.10.2010. To prove its case prosecution examined 15 witnesses in all. It was followed by recording of statement of accused U/s 313 Cr.P.C. Accused also examined himself as Page 4 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 5 DW1.
4. I have heard argument of Ld. Addl. PP Sh. G.S.Guraya for State and Ld. defence Counsel Sh.B.C.Jain advocate, Amicus Curie. I have also carefully perused the entire judicial file.
5. First witness examined by the prosecution is HC Dewan Singh, Duty Officer, who registered the FIR.
6. PW2 Vipin Kumar is complainant. He deposed on the lines of prosecution case and identified the accused as the person who pushed his maternal uncle Dhirender Chaudhary to death.
7. PW3 is Ct. Suman of PCR who proved the call record.
8. PW4 is HC Vipin Kumar of PCR who removed the injured to hospital.
9. PW5 is Ct. Vijay, photographer.
10.PW6 is Ct. Kapil who reached the spot initially with ASI Rajmal and subsequently got the FIR registered . He also witnessed the arrest of accused and correctly identified the accused.
11.PW7 is Satender Kumar , nephew of deceased , who identified the dead Page 5 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 6 body.
12.PW8 is Ct. Mohd. Abid who witnessed seizure of blood sample and clothes of deceased and deposited exhibits with FSL.
13.PW9 is SI Mahesh Draftsman who prepared scaled site plan Ex.PW9/A.
14.PW10 is SI Dhan Singh of PCR who removed the deceased to hospital.
15.PW11 is ASI Rajmal who visited the spot initially and got the FIR registered. He also witnessed the arrest of the accused and correctly identified the accused in the court.
16.PW12 is Sushil Kumar , landlord of the property. As per him deceased was nd his tenant in a room on the 2 floor of his T270, house while accused and his rd wife were living on the 3 floor of the house.
17.PW13 is Dr.Devender Kumar Atal who conducted the post mortem on the body of deceased.
18.PW14 is Inspector Subhash Meena, IO of the matter. He disclosed the steps taken by him during investigation.
19.PW15 is Dr. Parvesh who proved the MLC of deceased.
Page 6 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 7
20.In his 313 Cr.P.C. statement, accused pleaded false implication. While deposing as DW1, he conceded that he was living at the above house with his wife. He also conceded that on the fateful night of 8.6.2010 , he and his wife rd had gone to the roof of 3 floor to sleep but PW2 Vipin accused him that he has urinated on his bed. Even though he denied it , Vipin started quarreling with him. He and his wife came down to their room. Meanwhile Dhirender who was drunk, tried to climb over the roof to sleep. Thereafter he heard Vipin shouting that his Uncle Dhirender had fallen down.
21.In order to prove the charge of murder as defined U/s 302 IPC prosecution is supposed to prove three basic ingredients. Definition of Murder U/s 300 IPC reads as under:
Section 300 IPC Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is Page 7 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 8 caused, or Thirdly:If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly: If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
22. The three basic ingredients U/s 302 IPC runs as under:
Ingredients of offence: The essential ingredients of the offence under sec. 302 are as follows:
1. Death of a human was being caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
23. As far as the first ingredient is concerned , it stands established on record Page 8 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 9 that Dhirender Chaudary S/o Late Sh. Lathu Chaudhary had suffered unnatural death in the night of 8.6.2010 . As per his MLC Ex.PW 15/A and PM Report Ex. PW13/A he died of ante mortem injuries including lacerated wound on his head. His dead body was identified vide memo Ex.PW2/D and Ex.PW7/A by PW Vipin Kumar and Satender Kumar respectively. Even the defence is not disputing the fact that deceased was Dhirender Chaudhary and he had suffered an unnatural death.
24.As far as remaining ingredients of murder are concerned, as detailed supra, sequence of event as unfolded by eye witness PW2 Vipin Kumar , no where shows that accused Suman Chetri had any intention to kill or cause death of Dhirender Chaudhary. As per deposition of the sole eye witness , verbal argument broke out between him and the accused on a trivial issue. Deceased Dhirender Chaudhary, being maternal Uncle of PW2, intervened when he saw that accused had started beating PW2 Vipin. There is nothing on record to show that there was any exhortation or utterance from the side of accused that he would kill PW2 Vipin or for that his uncle Dhirender Page 9 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 10 Chaudhary. As per deposition when deceased intervened , accused started beating him as well and in the process accused happened to push deceased Dhirender Chaudhary. It is also not the case of the prosecution that accused pushed the deceased with a sole intention to throw him off from the roof of third floor to the lower floor so as to kill him. The photographs of the spot available on record as Ex.PW5A to E show that the place of incident i.e. roof of third floor did not have parapet wall. It is also evident from the scaled site plan Ex.PW9/A.
25.Also there is nothing on record to show that while the scuffle was going between accused, PW2 and deceased Dhirender, accused was aware that deceased is standing in such a position that if he is given a push on his chest, he would fell down two floors. In the absence of any iota of evidence on this score, it can not be said that accused knew that the act of pushing deceased was so imminently dangerous that it must in all probability would cause death of Dhirender. Relevant case laws on this issue are being discussed.
Page 10 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 11 Hon'ble Supreme Court ruled
26.State Vs. Inderjeet (2000) 7 SCC 249, "Absence of intention to cause his death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304 Part II IPC and not under Section 302 IPC."
27.In case titled State Vs. David Rozario AIR 2002 SC 3272 It has been ruled that '' motive behind the crime is a relevant of which evidence can be given a ............ proof of motive satisfy the judicial mind about the authorship of the crime but the absence does not ipso facto result in the acquittal of accused. Motive is not sine quanun to prove the cases of the prosecution. Absence of proof only demands deeper forensic search and can not do or undo the effect of evidence if otherwise is reliable and sufficient."
28. In 2006 (3) SCC 283 (SC) it has been ruled that " In a sudden fight between accused and deceased - where was no premeditation and accused gave only one lathi blow which he picked up from spot and he was not armed earlier, then fourth exception of Section 300 will apply. In such a case accused deserves to be convicted under Section 304 Part II IPC."
Page 11 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 12
29.In case titled Girish Singh Vs. State of Uttaranchal 2007 Crl.LJ 4446 , Hon'ble High Court maintained the conviction under 304(II) IPC when accused was shown to have pushed the deceased into the valley after an altercation .
30.In a case titled Hoshiyar Singh Vs. State of Punjab 2006(1) RCR Criminal 127, Division Bench of Punjab and Haryana High Court set aside the conviction under Section 302 but modified it to 304 (II) IPC when accused was shown to have pushed the deceased down the Bandh (dam) , over a land dispute
31.As such in view of the above discussion , I have no hesitation in concluding that no case of conviction U/s 302 IPC is made out.
32.Having concluded this , record reveals that the evidence which has come on record in the form of deposition of PW2 Vipin Kumar , categorically reveals that it was accused Suman Chhetri who caused death of deceased Dhirender Chaudhary, though unintentionally. Defence taken by the accused in this case , rather supports the better part of the prosecution case. Defence Page 12 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 13 disclosed by the accused not only in the cross examination of PW2 but as well as in his 313 Cr.P.C. statement and his deposition U/s 315 Cr.P.C. categorically shows that he was present at the spot on the roof soon before Dhirender Chaudhary suffered the fall of death. So much so that in his deposition as DW1 accused, corroborated the statement of PW2 Vipin Kumar that some hot argument took place between them on the date of incident dated 8.6.2010 in the night qua pissing on the bed of PW2 Vipin. At this juncture the defence taken by the accused is that deceased Dhirender Chaudhary was drunk. As per accused he and his wife came down stair while deceased suffered a fall while climbing to the portion of the roof where he and PW2 Vipin used to usually sleep. The plea of Dhirender Chaudhary being drunk or falling down under the influence of liquor, has been categorically denied by PW2 Vipin. Neither the MLC of deceased Ex.PW15/A has any observation qua any smell of alcohol, nor the PM Report ex.PW13/A has any observation in this regard. It is specifically observed under the column "Stomach and its contents" 200 gm of semi digested food material. In the Page 13 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 14 absence of any corroboration the defence of deceased being drunk appears to be an after thought. Even though accused could have examined his wife but he choose to examine only himself.
33.It has also been argued by Ld. defence counsel that there was no previous enmity between deceased and the accused and as such accused had no motive to kill the deceased. This plea fortify that it is not the case of murder but it is case of culpable homicide as defined in Section 299 IPC punishable U/s 304 IPC.
34.Section 299 IPC runs as under:
Section 299 IPC Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 304 IPC runs as under: Section 304 IPC Punishment for culpable homicide not amounting to murder: Whoever, commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either Page 14 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 15 description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. 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 it likely to cause death.
35.Appreciating the facts proved on record in the light of statutory provisions reveals that death of deceased Dhirender Chaudhary was caused by accused Suman Chettri by his act of pushing him with a knowledge that by doing so he is likely to cause his death even though he had no intention to cause the death. The factum of absence of parapet wall was in the conscious knowledge of accused , since according to him he and his wife used to sleep on the roof in routine.
36.Another plea taken is that convict has falsely been implicated in this matter and the same is evident from the fact that he did not try to escape from the spot. Reason of not absconding , can be that accused did not visualise that Page 15 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011 16 the result of his act would lead to such serious consequence. On this score, despite being asked, Ld. Counsel could not disclose any motive of false implication at the hand of PW2 Vipin. It has been argued by Ld. defence counsel that both the sides had no illwill or enmity between them . A trivial misunderstanding existed only qua the claim of PW2 that accused had pissed on his bed. This , in my considered view, is too insufficient a reason for which somebody would falsely accuse an innocent person with homicide.
37.As such in view of the above discussion and the case laws , I have no hesitation to conclude that prosecution has proved its case against the accused for commission of offence punishable U/s 304 (II) IPC. Suman Chetri is accordingly convicted for commission of offence punishable U/s 304 (II) IPC. He shall be heard separately on the point of sentence. ANNOUNCED AND DICTATED IN OPEN COURT ON : 17.9.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 16 / 16 of Judgment State Vs. Suman Chhetri dated 17.9.2011