Delhi District Court
State vs Lal Babu Pandey on 18 January, 2025
:1:
IN THE COURT OF MS. SHEFALI BARNALA TANDON
ADDITIONAL SESSIONS JUDGE -05: WEST: DELHI
DLWT010006712017
CNR No. DLWT01- 000671-2017
Case No. 49/2017
FIR No. 677/2014
PS Ranhola
U/s 304/323/325/341/34 IPC
STATE
VERSUS
Lal Babu Pandey
S/o Sh. Ramashrey Pandey
R/o H.No. B-154, Vikas Kunj,
Vikas Nagar, Delhi.
Date of Institution 29.07.2016
Date of Committal 24.01.2017
Charge framed Under Section Section 304 (Part-I)/ 325/
323/341/34 IPC.
Date of conclusion of final arguments 16.01.2025
and reserving judgment
Date of Pronouncement of Judgment 18.01.2025
Final Judgment Accused Lal Babu Pandey
is acquitted of the Charge.
FIR No. 677/2014 PS Ranhola Page 1 of 47
State v. Lal Babu Pandey
:2:
JUDGMENT
Brief facts of the case:
1. Accused Lal Babu Pandey has been facing trial for the commission of offence Punishable U/s 304(Part-I)/325/323/34 IPC and under section 341 IPC as on 03.09.2014, at about 06:00 PM, near Khan's shop, Sai Enclave, Mohan Garden, Delhi, accused in furtherance of common intention with four other persons (since unknown) had intentionally caused bodily injury with a danda to Ram Vakil Pandey, which was 'grievous' in nature, who was labouring under COPD (Chronic Obstructive Pulmonary Disease) leading to his death on 06.09.2014. He also in furtherance of common intention with four other persons (since unknown) had also voluntarily caused hurt to Smt. Bimla Devi and had also wrongfully restrained Mukesh Gupta who was coming alongwith his parents on the date of incident.
Case of the Prosecution and statement of injured:
2. On 03.09.2014, on receipt of DD no. 33A, ASI Baljeet Singh alongwith Ct. Dharmender reached at the spot i.e. Vikas Kunj, Vikas Nagar, Delhi where he came to know that injured persons were taken to Sanjay Gandhi hospital by the PCR officials.
Thereafter, ASI Baljeet Singh alongwith Ct. Dharmender reached the hospital where injured persons namely Ram Vakil vide MLC No. 15842/2014, Bimla Devi vide MLC No. 15843/2014 and Mukesh Kumar vide MLC No. 15844/2014 FIR No. 677/2014 PS Ranhola Page 2 of 47 State v. Lal Babu Pandey :3: were found admitted in the hospital. The IO has collected the said MLCs wherein the doctor has mentioned the history of assault as 'physical assault as told by the patient'. In the hospital, ASI Baljeet Singh asked the injured Mukesh to give his statement but he refused the same and told that when they will recover, they will come to the Police Station and will give their statements. Hence, DD no. 33A was kept pending.
3. On 06.09.2014, complainant Mukesh Kumar reached the PS and gave his statement wherein he has stated that on 03.09.2014, at about 06:00 PM, he alongwith his mother Bimla Devi and father Ram Vakil Gupta were going on foot towards the house of his sister at Shakurpur. When they reached near the shop of Khan, Sai Enclave, accused Lal Babu Pandey came from the front side on his motorcycle and stopped his motorcycle in front of him and after getting down from the motorcycle, he asked the complainant to give his money. The complainant asked him about the said money and told that he has already given the full payment. Upon this, accused Lal Babu Pandey held the complainant and started giving beatings to him. Accused also snatched the danda from the hands of his father, called the other four persons and started giving beatings to him with danda. When his parents tried to rescue him, they all also started giving beatings to his parents, due to which he and his parents sustained injuries. When they raised alarm, accused Lal Babu Pandey alongwith his associates ran away from the spot. Thereafter, PCR van came there and took them FIR No. 677/2014 PS Ranhola Page 3 of 47 State v. Lal Babu Pandey :4: to Sanjay Gandhi hospital.
Registration of FIR and investigation conducted at the spot :
4. On the basis of statement of injured Mukesh, ASI Baljeet got registered a case under Section 323/341/34 IPC against the accused. After registration of the case, further investigation was carried out by ASI Baljeet in which he inspected the spot and prepared the site plan at the instance of the complainant.
5. During investigation, on 06.09.2014, DD no. 18A was received regarding death of injured Ram Vakil. IO prepared the inquest papers and after getting postmortem of the dead body of deceased, the same was handed over to his relatives.
6. On 22.09.2015, PM report no. 872/2014 was collected by the IO wherein the doctor has mentioned that the death is due to shock associated with the damage for lower limb structures in person with chronic pulmonary disease. All injuries are antemortem in nature and could be caused by blunt force impact by object or surface.
7. Since the accused was absconding, IO has collected his NBWs from the concerned Court. During investigation, IO has also collected the MLC of other injured persons namely Smt. Bimla and Mukesh Gupta on which the doctor had opined the nature of injured as 'Simple' on the MLC of Smt. Bimla and as 'Grievous' on the MLC of injured Mukesh Gupta. Since the accused could not be apprehended, on 04.12.2024, IO had obtained the proceedings u/s 82 Cr.P.C. against the accused.
FIR No. 677/2014 PS Ranhola Page 4 of 478. Thereafter, during investigation, on the pointing out of secret informer, IO had arrested the accused Lal Babu from his house and he made disclosure statement where he had disclosed his involvement in the present case. During investigation, accused had also got recovered the weapon of offence i.e. danda/wooden stick with which he had given beatings to the deceased. Thereafter, IO sought opinion from Forensic department wherein the doctor had given possibility of injuries of deceased with the said danda. Other co-accused persons could not be traced. After completion of investigation, the IO has filed the charge sheet for the offence punishable under section 304/323/325/341/34 IPC against the accused Lal Babu Pandey before the concerned Court of Ld.MM, which was consequentially committed to this Court..
Charge:
9. On 30.01.2018 Charge for the offence Punishable U/s 304(Part-
I)/325/323/34 IPC and u/s 341 IPC was framed by the Ld. Predecessor against the accused to which he pleaded not guilty and claimed trial.
Trial Prosecution Evidence :
10. To prove its case, the prosecution, in total, has examined 12 witnesses i.e. PW-1 Sh. Mukesh Gupta (Complainant/injured); PW-2 Smt. Bimla (another injured); PW-3 Dr. Mahipal Singh (examined all the three injured persons); PW-4 ASI Hem Lata FIR No. 677/2014 PS Ranhola Page 5 of 47 State v. Lal Babu Pandey :6: (duty officer and proved the DD no. 18A); PW-5 retired ASI Hans Raj (duty officer and proved the DD no. 33A ); PW-6 ASI Parmender Kumar (joined the investigation with IO/SI Brahm Prakash); PW-7 ASI Bijender (MHCM); PW-8 Ct. Ravinder, Delhi Home Guard (delivered the copy of FIR and rukka to the IO/ASI Baljeet); PW-9 SI Baljeet Singh (1st Investigating Officer); PW-10 SI Brahm Prakash (2nd Investigating Officer); PW-11 Dr.Munish Wadhawan (conducted the postmortem on the dead body of deceased) and PW-12 retired SI Rambir ( duty officer and proved the FIR). The relevant portion of their testimony is discussed in the following paragraphs.
11. PW-1 Sh. Mukesh Gupta/complainant & injured has deposed that on 03.09.2014 at about 05:45 or 06:00 PM, he alongwith his father Sh. Ram Vakil Gupta/deceased and mother Smt. Bimla Devi were going to the house of his sister, situated at Shakur Pur on foot for taking vehicle 'Gramin Sewa' and when they reached near Khan shop, Sai Enclave, Mohan Garden, Delhi, they saw accused Lal Babu Pandey coming on motorcycle from their opposite directions. He knew accused as he had purchased their house no. 93, 94, Vikas Vihar, Delhi through him being property dealer prior to about two months from the date of incident. He has further deposed that thereafter, accused stopped his motorcycle near them and asked to give money to him (accused), on which PW-1 stated that they had already made full payment regarding the purchase of abovesaid house and now nothing was due. Accused informed that he had FIR No. 677/2014 PS Ranhola Page 6 of 47 State v. Lal Babu Pandey :7: not received his commission from the seller. Then PW-1 told the accused that they could do nothing as they had already made payment. Thereafter, accused got angry and started beating PW-1 with fist and kicks. Parents of PW-1 intervened to save him. Then accused called 4-5 other persons from his office which was situated nearby. He has further deposed that his father namely Sh. Ram Vakil Gupta requested the accused to sit and properly settled the dispute but accused stated that he would see him first (बुढ्ढे पहले मैं तुझे ही देख लेता हूँ ). Thereafter, accused snatched the stick which was carried by the deceased and started beating him with that stick. The said stick was of iron made and there was a wooden handle on the stick. 11.1. He has further deposed that his father sustained injuries on various parts of his body and he fell down on the road. PW-2 Smt. Bimla Devi tried to save the deceased, due to which she also sustained injuries. Thereafter, accused alongwith his other associates fled away from the spot. People gathered at the spot and he got scared/nervous. He gave his mobile phone to someone and requested him to make PCR call. Police reached at the spot after about half an hour and took PW-1 and his parents to SGM hospital, where they were admitted in the hospital. He has further deposed that his father expired on 06.09.2014 during treatment in SGM hospital. He was discharged from the hospital on 05.09.2014. His mother remained admitted in the hospital till the death of his father. 11.2. He further deposed that on 06.09.2014, he went to PS and FIR No. 677/2014 PS Ranhola Page 7 of 47 State v. Lal Babu Pandey :8: got recorded his statement Ex.PW-1/A by the police official. He did not make the statement before the police on 03.09.2014 till the death of his father as he was nervous and scared because the condition of his father was serious. Thereafter, he alongwith the police went to the place of incident, i.e. near Sai Enclave, Mohan Garden, Delhi and police prepared site plan at his instance, Ex.PW-1/B. He had identified the dead body of his father and his statement Ex.PW-1/C was recorded in this regard by the police. He has further deposed that on 07.09.2014, he received the dead body of his father after the postmortem vide receipt Ex.PW-1/D. After about 15 days, he alongwith IO and other police officials went to the house of accused, where he was found present and arrested vide arrest memo Ex.PW-1/E, pursuant to his personal search vide memo Ex.PW-1/F. Thereafter, accused got recovered the weapon of offence i.e. stick Mark P.1 (Ex.P.1), belonging to his father from the house of accused which was seized vide seizure memo Ex.PW-1/G. He has further deposed that he was present at the time of recovery of stick Mark P.1, at his instance. The stick which was got recovered by the accused was fully covered with iron pipe except its handle. He also admitted that the seizure memo of stick Ex.PW-1/G was prepared by the IO in his presence. However, he had not identified that stick Mark P.1., as a fter seeing the case property i.e. wooden stick, PW-1 deposed that the wooden stick of which half portion is covered with Iron Pipe is not the same stick which was being carried by his father FIR No. 677/2014 PS Ranhola Page 8 of 47 State v. Lal Babu Pandey :9: and it is not that stick which was got recovered by the accused from his house in his presence. This witness was cross- examined by the Ld. Prosecutor as he is resiling from his previous statement u/s 161 Cr.P.C. on the point of identification of Stick Mark P.1 and deposed that the stick which was got recovered by accused was fully covered with Iron pipe except its handle. During said cross-examination, after going through the contents of seizure memo, the witness deposed that he does not remember as to whether or not it has been mentioned in the seizure memo that half lower portion of the wooden stick was covered with iron pipe. He also voluntarily deposed that he had stated that complete portion of the stick was covered with iron pipe except its handle. He also voluntarily deposed that the police officials were asking him to read and signed the document quickly. He also denied the suggestion of Ld. Prosecutor that the stick Mark P.1 shown to him before the Court on the said date is the same stick which was of his father and used by the accused as a weapon of offence. He also denied that the stick Mark P1 is the same stick which was got recovered by the accused from his house in his presence; he had identified the stick Mark P1 before the police when it was recovered from the house of accused; seizure memo of the stick Ex. PW-1/G was properly read by him and then he had signed the same at point A as proper description of the stick was mentioned in the seizure memo and due to lapse of time of about more than four years, he forgot the description of the stick FIR No. 677/2014 PS Ranhola Page 9 of 47 State v. Lal Babu Pandey : 10 : and due to that reason, he is not able to identify the stick shown to him before the Court.
12. PW-2 Smt. Bimla Devi/another injured/wife of deceased has also deposed on the same lines of PW-1 Sh. Mukesh Gupta regarding the date, time and present incident. Apart from this, she also deposed that she regained consciousness in the hospital. Her husband expired on 06.09.2014 in the hospital during treatment. The stick which was used by her husband was of iron with wooden handle. PW-2 Smt. Bimla Devi also did not identify the weapon of offence i.e. stick and deposed that it is not the stick which was being carried by her husband on the day of incident and was snatched by the accused. 12.1. This witness was also cross-examined by the Ld. Prosecutor on the point of identification of stick and deposed that the stick shown to her on the day of her examination is covered with iron pipe in its lower half portion however, the stick which her husband used was covered fully with iron pipe except its handle. She denied the suggestion that the stick Mark P.1 shown to her is the same stick which was snatched by the accused from her husband. She also denied that she is not identifying the stick due to lapse of long time.
13. PW-3 Dr. Mahipal Singh, CMO, SGM hospital, Mangol Puri, Delhi has deposed that on 03.09.2014, three persons namely Mukesh Kumar s/o Sh. Ram Vakil, Ram Vakil s/o Sh. Baili Ram and Bimla Devi w/o Ram Vakil were brought to SGM hospital by the police with the alleged history of physical assault and FIR No. 677/2014 PS Ranhola Page 10 of 47 State v. Lal Babu Pandey : 11 : they were examined by Dr. Swati, JR under his supervision and their MLCs were prepared by her. He identified the handwriting and signatures of Dr. Swati as she had worked under him and the MLCs of the above-named injured persons were prepared under his supervision. He has further deposed that no external injury was seen at the time of examination on the person of Mukesh Kumar however, he was complaining pain in his left leg. After examination, Mukesh Kumar was referred to ENT and surgery department for further management. He proved the MLC of Mukesh Kumar Ex.PW-3/A before the Court. Thereafter, he gave opinion in the encircled portion X of the said MLC regarding nature of injuries as 'grievous' on the basis of observation made by ENT department as per X-ray report of Mukesh Kumar, a fracture in the nasal bone was observed. 13.1. He has further deposed that on examination of injured Ram Vakil, tenderness and swelling were observed in his right hip joint, right wrist and forearm. One CLW was also observed on his left eyebrow. Dr. Swati prepared the detailed MLC of injured Ram Vakil Ex.PW-3/B and after examination, injured Ram Vakil was referred to Ortho department for further management.
13.2. He has further deposed that on examination of injured Bimla Devi, no external injury was seen on her person at the time of examination. She was having pain in her left shoulder, so she was referred to Ortho department. Dr. Swati prepared her detailed MLC Ex.PW-3/C. After examination the opinion FIR No. 677/2014 PS Ranhola Page 11 of 47 State v. Lal Babu Pandey : 12 : received from Ortho department on the MLC of injured Bimla Devi, he opined the nature of injury as 'simple' in the encircled portion X on the MLC.
14. PW-4 ASI Hem Lata is duty officer and she has proved the DD no. 18A, Ex.PW-4/A, vide which information was received from SGM hospital regarding death of injured Ram Vakil who was admitted in the hospital on 03.09.2014 vide MLC No. 115843/2014. She has further deposed that ASI Baljeet Singh was informed about the said DD no. 18A.
15. PW-5 retired ASI Hans Raj has also proved the DD no. 33A, Ex.PW-5/A, vide which information was received regarding quarrel at D-154, Vikas Kunj, Vikas Nagar, Delhi received from wireless operator. He also proved the copy of said entry made in DD register as Ex.PW-5/A.1. ASI Baljeet Singh was informed about the said DD no. 33A.
16. PW-6 ASI Parmender Kumar has deposed that on 06.02.2015, he joined the investigation of this case with IO/SI Brahm Prakash and at about 05:00 PM, he and IO were present in the Police Station. A secret informer came and informed the IO that accused wanted in the present case would come to his house to meet his children. IO made a call to the complainant Mukesh Gupta and he was also informed about the above information and was directed to come to the PS. After sometime, complainant came to PS and thereafter, PW-6 alongwith IO and complainant went to the house at B-154, Vikas Kunj, Vikas Nagar, Delhi. There was an office at the ground floor of his FIR No. 677/2014 PS Ranhola Page 12 of 47 State v. Lal Babu Pandey : 13 : premises and tinted glass door of black colour was also installed in the said office. He has further deposed that in the meantime, one person having beard came out from the office after opening the black colour glass door and complainant identified that person as accused Lal Babu Pandey. PW-6 also identified the accused before the Court.
16.1. Thereafter, accused was interrogated by the IO and arrested vide arrest memo Ex.PW-1/E, pursuant to his personal search vide personal search memo Ex.PW-1/F. IO also recorded disclosure statement of accused Ex.PW-6/A. Thereafter, accused got recovered one wooden stick ( Baint) which was lying above the water cooler kept on the ' momty' of the second floor of his house. The lower portion of the wooden stick was covered with iron pipe and the other portion of the stick was in bend condition i.e. 'U' shape. Thereafter, IO took the measurement of the abovesaid stick and found its length as 3 feet. IO prepared a parcel of wooden stick and sealed the same with the seal of BP and seized the same vide seizure memo proved as Ex.PW-1/G. Thereafter, accused pointed out the place of incident, i.e. some distance from the shop of Khan and IO prepared pointing out memo, proved as Ex.PW-6/B. The seal after use was handed over to PW-6. PW-6 had correctly identified the wooden stick as Ex. P.1 before the Court.
17. PW-7 ASI Bijender/MHC(M) has deposed that on 22.09.2014, ASI Baljeet Singh had deposited one sealed parcel, sealed with the seal of SGMH mortuary, Mangolpuri, Delhi containing the FIR No. 677/2014 PS Ranhola Page 13 of 47 State v. Lal Babu Pandey : 14 : blood in gauze of deceased Ram Vakil in the malkhana and he made entry at srl.no. 358, Ex.PW-7/A in register no.19. He has further deposed that on 06.02.2015, SI Brahm Prakash deposited one sealed parcel, sealed with the seal of BP containing one stick (Baint) in the malkhana and he made entry at srl.no. 1001, Ex.PW-7/B in register no. 19. He has further deposed that on 30.07.2015, SI Brahm Prakash obtained the sealed parcel containing stick which was sealed with the seal of BP from the malkhana for depositing the same in the mortuary of SGM hospital. On 06.08.2015, SI Brahm Prakash deposited the sealed parcel containing stick which was sealed with the seal of SGMH mortuary, Mangolpuri, Delhi in the malkhana.
18. PW-8 Ct. Ravinder/Delhi Home Guard has deposed that on 06.09.2014, at about 07:45 am, duty officer handed over copy of FIR of the present case alongwith rukka to him which he took to the spot, i.e. near grocery shop of Mr. Khan, Sai Enclave, Mohan Garden and handed over the same to ASI Baljeet. His statement was recorded by ASI Baljeet and thereafter he returned to PS alongwith IO/ASI Baljeet Singh.
19. PW-9 SI Baljeet Singh/ 1st Investigating Officer of the case has deposed that on 03.09.2014, at about 06:05 PM, on receiving the DD no. 33A regarding quarrel at Vikas Kunj, Vikas Nagar, he alongwith Ct. Dharmender went to the spot, where they came to know that the injured had already been removed to SGM hospital by the PCR. Thereafter, he alongwith Ct. Dharmender went to SGM hospital, where they found three FIR No. 677/2014 PS Ranhola Page 14 of 47 State v. Lal Babu Pandey : 15 : injured persons namely Ram Vakil, Bimla Devi and Mukesh who were brought to the hospital after the incident. He collected three MLCs of above-named injured persons. PW-9 SI Baljeet Singh asked them to make statement but they informed that they were not feeling well, so would give statement later and therefore, DD no. 33A, Ex.PW-5/A was kept pending. He has further deposed that on 06.09.2014, at about 06:00 AM, one of injured namely Mukesh came to PS and made statement, proved as Ex.PW-1/A, before him. He informed that he and his parents, i.e. Ram Vakil and Smt. Bimla were attacked on 03.09.2014 by accused Lal Babu Pandey and his four associates. He made endorsement proved as Ex.PW-9/A on the statement of Mukesh and produced tehrir before the duty officer for registration of the FIR. Thereafter, he alongwith complainant Mukesh went to the spot i.e. place of occurrence and prepared site plan, proved as Ex.PW-1/B at the instance of complainant. He recorded supplementary statement of complainant. In the meantime, DHG Ravinder came to the spot and handed over copy of FIR and original rukka to him. He recorded the statement of DHG Ravinder.
19.1. He has further deposed that on 06.09.2014, DD no.18, proved as Ex.PW-4/A received from SGM hospital whereby it was informed that injured Ram Vakil who was admitted on 03.09.2014 after the incident, died. On 07.09.2014, he went to mortuary of SGM hospital and conducted the inquest proceedings and prepared request letter for performing the FIR No. 677/2014 PS Ranhola Page 15 of 47 State v. Lal Babu Pandey : 16 : postmortem examination on the body of deceased Ram Vakil, proved as Ex.PW-9/B. He also prepared form no. 25.35, proved as Ex.PW-9/C. Thereafter, the dead body of deceased was identified by Mukesh and Ram Gopal. Thereafter, he got conducted the postmortem examination on the dead body of Ram Vakil and after the postmortem, the dead body of the deceased was handed over to his relatives vide receipt proved as Ex.PW-1/D. On 09.09.2014, he deposited the MLCs of Smt. Bimla Devi and Mukesh in the SGM hospital for obtaining opinion regarding nature of injuries. He has further deposed that on 22.09.2014, he again visited SGM hospital and collected the PM report, proved as Ex.PW-9/D. The doctor had handed over one sealed parcel containing the blood in gauze of deceased Ram Vakil, which was sealed with the seal of SGMH mortuary, Mangolpuri, Delhi and seized vide seizure memo proved as Ex.PW-9/E. On 22.09.2014, section 304 IPC was added in the present case and further investigation of this case was assigned to SI Brahm Prakash.
20. PW-10 SI Brahm Prakash/2nd Investigating Officer has deposed that on 06.10.2014, further investigation of this case was assigned to him and on 11.10.2014, he went to the house of complainant Mukesh Kumar situated at Vikas Kunj, Vikas Nagar, Delhi, where complainant and his mother Smt. Bimla met him. He made inquiries from them and recorded their statements u/s 161 Cr.P.C. He deposited the MLCs of complainant Mukesh Kumar and Smt. Bimla Devi in SGM FIR No. 677/2014 PS Ranhola Page 16 of 47 State v. Lal Babu Pandey : 17 : hospital for obtaining result regarding the nature of injuries. The doctor opined the nature of injuries sustained by Smt. Bimla Devi as 'simple' and nature of injuries sustained by complainant Mukesh as 'grievous' on their respective MLCs. He has further deposed that on 06.02.2015, he received secret information that accused would come to his house. Complainant also informed this fact. Thereafter, PW-10 alongwith PW-6 HC Parminder and complainant went to the house of accused situated at B-154, Vikas Kunj, Vikas Nagar, Delhi and at about 05:30 PM, one person having beard came out from the abovesaid house. Complainant identified that person as accused Lal Babu Pandey. Thereafter, he arrested the accused vide arrested memo, proved as Ex.PW-1/E, pursuant to his personal search memo, proved as Ex.PW-1/F. He also recorded the disclosure statement of accused proved as Ex.PW-6/A and pursuant to his disclosure statement, accused let the police party to the roof of first floor of his house and got recovered one wooden stick 'baint' which was kept on the water cooler. The length of said wooden stick was about 3 ft. he prepared parcel of this wooden stick and sealed it with the seal of BP and seized vide memo, proved as Ex.PW-1/G. The complainant identified this wooden stick being same which was used by accused at the time of commission of offence. Thereafter, accused was taken to the place of occurrence where he pointed out the place of incident and pointing out memo was prepared. He recorded the statement of complainant and he was discharged from the investigation.
FIR No. 677/2014 PS Ranhola Page 17 of 47State v. Lal Babu Pandey : 18 : Thereafter, accused was taken to PS and case property was deposited with the MHC(M).
20.1. He has further deposed that he moved an application for obtaining subsequent opinion regarding weapon of offence, proved as Ex.PW-10/A. He produced the sealed parcel containing the weapon of offence and other medical documents before Dr. Manoj Dhingra (since expired). After examining the weapon of offence i.e. wooden stick and the PM report of deceased Ram Vakil, he opined that the injury mentioned in the PM report is possible by the said wooden stick or similar such object. He gave the abovesaid opinion in the encircled portion X on the application, proved as Ex.PW-10/A. The wooden stick was re-sealed with the seal of SGMH and thereafter, he returned to the PS and deposited the sealed parcel containing wooden stick with the MHC(M). PW-10 also identified the wooden stick, Ex.P.1 before the Court.
21. PW-11 Dr. Munish Wadhawan has appeared and deposed on behalf of Dr. Vivek Rawat, (who had left the services of the hospital and his present whereabouts are not available in the hospital record), who conducted the postmortem examination on the dead body of Ram Vakil and on behalf of Dr. Manoj Dhingra (since expired), who gave subsequent opinion regarding weapon of offence. He identified the signatures of Dr. Vivek Rawat at point A on every page of the said report proved as Ex.PW-9/D and as per PM report, Dr. Vivek Rawat observed three external injuries on his left eyebrow, right hip and right FIR No. 677/2014 PS Ranhola Page 18 of 47 State v. Lal Babu Pandey : 19 : forearm. This witness opined that the cause of death is due to shock associated with the damage of lower limb structures in the person with chronic obstructive pulmonary disease. All the injuries were antemortem in nature and caused by blunt force impact by object of surface. He has further deposed that the opinion given in the encircled portion X on the document, proved as Ex.PW-10/A is in the handwriting of Dr. Manoj Dhingra and bears his signatures at point A. After examining the weapon of offence, he opined that the injury mentioned in the PM report is possible by the said weapon i.e. wooden stick or similar such object.
22. PW-12 retired SI Rambir has deposed that on 06.09.2014, at about 06:55 pm, he received rukka, proved as Ex.PW-1/A from ASI Baljeet for getting FIR registered. On the basis of said rukka, he registered the FIR, bearing no. 677/2014, proved as Ex.PW-12/B, PS Ranhola and made his endorsement proved as Ex.PW-12/A. He had also issued certificate u/s 65B of the Indian Evidence Act, proved as Ex.PW-12/C. After registration of the FIR, he handed over the original rukka and copy of FIR to Ct. Ravinder to hand over the same to ASI Baljeet for investigation of the present case.
23. On 11.07.2019, the Ld. Prosecutor had dropped the witness Sh.
Ram Gopal Gupta cited at srl.no.4 in the list of witnesses as his evidence is pertaining to identification of dead body of deceased and in this regard, the son of deceased namely Sh. Mukesh Gupta (PW-1) has already been examined. Further, on FIR No. 677/2014 PS Ranhola Page 19 of 47 State v. Lal Babu Pandey : 20 : 21.09.2023, the Prosecution evidence was closed on the submission of Ld. Addl. P.P. for the State.
24. All the incriminating circumstances were put to the accused while recording his statement U/s 313 Cr.P.C wherein he has denied his involvement in the present case by stating that on 03.09.2014, he had gone to market to bring goods and after return, he found Mukesh, Nizamuddin, Bimla Devi and Ram Vakil were abusing his wife Kamalwati Pandey and on seeing him, they ran towards him and started beating him and his wife due to which he sustained grievous injuries and his wife sustained simple injuries. He was treated in the hospital. His wife filed complaint and FIR bearing no. 09/2015 was registered against them for the offence punishable u/s 323/325/34 IPC and that is why to save themselves, they lodged the present FIR against him. He had called at 100 number immediately after the abovesaid incident. He is innocent and has been falsely implicated in this case.
25. The accused opted to lead evidence in his defence and produced four witnesses in his defence.
Defence Evidence:
26. DW-1 Smt. Kamlawati Pandey/wife of accused has deposed that on 03.09.2014, she was present at her house and at about 05:00 to 05:30 PM, four persons namely Mukesh, Ram Vakil, Bimlawati and Nizamuddin came to her house and started abusing to her and her husband. They were asking for her husband and she told them that her husband had gone to bring FIR No. 677/2014 PS Ranhola Page 20 of 47 State v. Lal Babu Pandey : 21 : some household goods. Within few minutes, her husband came there on motorcycle. Thereafter, Mukesh started hurling abuses to her husband. Mukesh also snatched stick of his father Ram Vakil and started giving beatings to her husband with the said stick. When Mukesh was snatching stick from the hands of his father Ram Vakil, his father fell down on the floor and his head stuck against the wall and received injury on his head. Her husband received injuries on his stomach, wrist and back due to the hitting with the stick by Mukesh. Thereafter, public persons gathered and tried to intervene and separated them. After that, her husband made a call at 100 number to the police . Thereafter, she and her husband were taken to Govt. hospital by the neighbour on bike, where her husband was treated. Thereafter, they made complaint on the same day before the police station . She followed up with the police and the FIR was registered in the present case against the said accused persons on 02.01.2015 on the basis of her statement, which is pending trial before this Court as cross case bearing Session Case No. 350/2017, FIR no. 09/2015, PS Ranhola, u/s 323/325/34 IPC, titled as State v. Mukesh Gupta.
27. DW-2 Sh. Vinod Kumar/neighbour of accused has deposed that his house is situated in front of place of incident. On 03.09.2014, he was standing in front of his house and saw that Lal Babu Pandey was coming to his house on bike. He saw that Mukesh was standing with his parents and was hurling abuses to Lal Babu Pandey and was in an aggressive state. In the FIR No. 677/2014 PS Ranhola Page 21 of 47 State v. Lal Babu Pandey : 22 : meanwhile, Mukesh snatched stick from the hands of his father Ram Vakil and started giving beatings to Lal Babu Pandey due to which he received injuries on his stomach and wrist. When Mukesh was snatching stick from the hands of his father Ram Vakil, he fell down on the floor and his head stuck against the wall and received injury on his head. Thereafter, Lal Babu made a call to the police. Lal Babu Pandey and his wife were taken to the hospital by one neighbour namely Arvind and Mukesh was taken to the hospital by the police . He was called by the IO and he had taken his statement after one day of the incident in the PS. He knows Mukesh Gupta and his father Ram Vakil since long as they were his neighbours earlier. Ram Vakil was suffering from chronic T.B and used to remain very sick.
28. DW-3 Sh. Sant Lal/shopkeeper has deposed that he is residing at the abovesaid place and also running a shop in the said premises, which is situated adjacent to DW-2 Sh. Vinod Kumar Soni. The incident took place on 03.09.2014 at about 05:00 to 05:30 PM in front of his shop. He was present at his shop . He saw Mukesh alongwith his parents was hurling abuses to Lal Babu Pandey and was in anger. He told Mukesh that about one month prior, his son had expired and he should not hurl abuses to Lal Babu Pandey in front of his shop but he did not stop. In the meanwhile, Lal Babu Pandey reached there on his bike and Mukesh snatched stick from the hands of his father Ram Vakil and started giving beatings to Lal Babu Pandey due to which he FIR No. 677/2014 PS Ranhola Page 22 of 47 State v. Lal Babu Pandey : 23 : received injuries on his stomach and wrist . When Mukesh was snatching stick from the hands of his father Ram Vakil and due to jerk, his father's head stuck against the wall and then he fell down on the floor and received injury on his head . He alongwith public persons gather there and separated them. Lal Babu Pandey made a call to the police. Thereafter, one neighbour Arvind took Lal Babu Pandey and his wife to Sanjay Gandhi hospital on his bike. Thereafter, police reached at the spot and took Ram Vakil, Mukesh and Bimlawati to the hospital. Police recorded his statement on the same day. Thereafter, he was called by the police after 10-12 days in the PS, recorded his statement and he signed the same.
29. DW-4 Dr. Arun Madan, Professor and HOD in the Department of Chest Medicines, NDMD Medical College, Hindu Rao hospital, Delhi has deposed that a normal person cannot identify the patient of COPD/Lungs problem on visual examination. He further deposed that it is written in the death certificate of deceased Ram Vakil that the cause of death was acute exacerbation of COPD and fracture femur. The death certificate of deceased Ram Vakil is marked as Mark D1.
29.1. In response to questions put to DW-4 that whether the external injuries mentioned in the postmortem report Ex.PW-9/D were sufficient to cause death of deceased Ram Vakil, this witness had replied that he cannot say whether the external injuries mentioned in the PM report were sufficient to cause death of deceased Ram Vakil as it depends upon the FIR No. 677/2014 PS Ranhola Page 23 of 47 State v. Lal Babu Pandey : 24 : person's body. He further explained COPD i.e. Chronic obstructive pulmonary disease which means a long-standing chest condition wherein there is a lot of constriction on the lung tubes. He further responded to the question that can only COPD cause death of a person as that only advance stage of cases of COPD can result into death. Thereafter, defence evidence was closed.
Final Arguments:
30. The Court heard Sh. Shiv Kumar, Ld.Addl. PP for the State and Shri D.K.Pandey, Ld. Counsel for the accused and have perused the record carefully.
Arguments Advanced by the Ld. Prosecutor:
31.It is submitted by the Ld. Prosecutor that prosecution has proved its case beyond reasonable doubt as the prosecution witnesses i.e. PW-1 and PW-2 who are eye witnesses have deposed specifically about the offence committed by the accused.
Arguments advanced by the Ld. Defence Counsel :
32. Whereas Ld. Defence counsel has argued that prosecution has not been able to prove its case at all since there are lot of contradictions in testimony of PW-1 and PW-2 as both have stated contrary to each other. He has further argued that as per the MLC of PW-1 and PW-2, there are no fresh injuries found upon their person though they stated that they were beaten by accused persons. He further argued that though it is alleged that FIR No. 677/2014 PS Ranhola Page 24 of 47 State v. Lal Babu Pandey : 25 : deceased Ram Vakil sustained fracture in his femur bone however, no X-ray report has been filed on record. Therefore, for want of X-ray report, the same has not been proved by the prosecution. He has further argued that same applies to alleged injury of nasal bone fracture being sustained by the victim Mukesh Kumar as no X-ray report of the same has been filed and accordingly, proved on record. He has further argued that in the medical documents, it has been clearly mentioned that deceased Ram Vakil was suffering from acute/exaggerated COPD which was the cause of his death. The accused has not been shown by the prosecution to have knowledge about the said disease of COPD being suffered by the deceased. Hence, section 299 IPC which defines culpable homicide is not attracted in the present matter as neither the accused had intention nor knowledge to commit culpable homicide of the deceased Ram Vakil. He has further argued that accused was the one who made the PCR Call after PW-1, PW-2 and the deceased assaulted him near his house and DD no. 33A proved the said fact of call made by the accused himself to the police, soon after the incident. He has further submitted that cross case is pending between the parties and no call was ever made by the complainant of the present matter to the police on the day of alleged incident and only when father of complainant Sh. Ram Vakil died due to his disease of COPD, the complainant falsely arraigned the accused in the present matter to settle scores with him.
FIR No. 677/2014 PS Ranhola Page 25 of 47State v. Lal Babu Pandey : 26 :
33.In order to substantiate his arguments, Ld. Counsel has filed following case Laws on record :
(1) Manmohan Singh v. The State (GNCT of Delhi), decided on 26th April, 2012, passed by the Hon'ble Delhi High Court, wherein it is observed that ;
"We summoned the police file to peruse the case diary Section 172(1) Cr.P.C. provides that every police officer making an investigation shall have the duty to maintain a day-to-day diary with the particulars specified in it."
(2) Ashok Kumar v. State (Crl.Appeal No. 407 of 1976), decided on 23rd February 1994 passed by the Hon'ble Delhi High Court, wherein it was observed that :
".....(10) The short question for consideration is as to what offence would stand proved against the appellant from the aforesaid evidence. Admittedly, Dr. D.P.Garg who had given the opinion about the fracture could not be examined and even the X Ray has not been produced. The prosecution did not examine any other Radiologist so as to get the opinion of the Doctor on the basis of the X Rays. KhazanSingh, Record Clerk, has no knowledge about the contents of the report of Dr. D.P.Garg and PW/IO, Dr. Mathur has also not said anything about the basis on whichDr. Garg gave his opinion. Dr. Mathur has given the nature of injury to be grievous only on the basis of the opinion of Dr. D.P. Garg, which, in my opinion, has not been proved on record. I find support for this view from the case Shanti v. State (1991(2) Ccc 27 (HC)). In these circumstances the offence proved against the petitioner would fall only under Section 323, IPC."
(3) Koduru Chintaiah v. Koduru Elia & Anr. 2023 SCC OnLine AP 4408 (Cases of Hon'ble SC FIR No. 677/2014 PS Ranhola Page 26 of 47 State v. Lal Babu Pandey : 27 : has been referred), wherein it was observed that :
"20. No doubt, there cannot be a presumption that the grievous hurt was caused without formal proof of the fact of fracture. The fact of existence of fracture cannot be diagnosed and certified in absence of proof of x-ray plates, unless the fact of fractured bones is perceivable barely of perception of naked eyes and sheerly by clinical examination its being vivid and palpable. Therefore, proof of x- ray plates was necessary particularly, the prosecution must prove the injury within the meaning of Section 320 of IPC and if the injury is a fracture, the prosecution must ordinarily prove the fracture by adducing radiological evidence. Suffice it to refer the observations of Hon'ble Supreme Court reported in Faizan Ahmed Abdul Wahab Shah v. The State of Maharashtra, that "a medical certificate shown fracture by symbol, it was necessary for the prosecution to prove the fracture by bringing evidence of x-ray examination and supporting testimony of radiologist".
21. In another judgment of Hon'ble Supreme Court reported in P. Johnson v. State of Kerala, held that "even regarding the conviction brought under Section 326 there is no legal evidence to fix the criminal liability. Section 320 IPC defines grievous hurt. Fracture comes under this Section. Non production of the X-ray report and non-
examination of the doctor who took the X-ray are sufficient to deduce that the criminal liability either under Section 325 or 326 IPC is not established. This flaw is also a stronger one shaking the case of the prosecution".
22. This Court also referred the same aspect in previous orders that in-order to found the guilt of the accused under Section 326 of IPC to prove the nature of the injuries, the radiologist examination and production of x-ray files is mandatory......"
FIR No. 677/2014 PS Ranhola Page 27 of 47State v. Lal Babu Pandey : 28 : (4) Rattanlal v. State of Jammu & Kashmir (2007) 13 SCC 18 passed by the Hon'ble Supreme Court of India, wherein it was observed that:
"The learned Trial Judge also took serious note of the fact that report of the X-Ray taken by the Radiologist had not been brought on records. Even the sky- gram of the deceased had not been produced. The court, thus, was deprived of an opportunity from considering a part of the medical evidence. An adverse inference was rightly drawn by the learned judge as no explanation was therefor was offered.
(5) Satyawan & Anr. v. State of Haryana, 2016 SCC OnLiine P&H 15257, wherein it was observed that :
"The mere cross-examination in the light submissions of the two sides shows that this Doctor admits that x-ray examination injured Ranbir Singh and Ram Kala were not done by him. Sufficiently illustrates the this Doctor having not conducted the x-ray examination, and without examination a the radiologist who conducted the x-ray to prove the fracture of the skull how the Court came to the conclusion that fracture was there are matters which impinges the Judicial conscience in the absence of any legal evidence as the prosecution has failed to produce radiologist in the Court to prove the x- ray films and report and therefore injury on the head of Ranbir Singh to be a fracture having remained unproved cannot be covered under the definition of Section 326 IPC and the definition assigned 'Grievous hurt' by virtue of Section 320 IPC does not covers this injury as neither thes sany privation, emasculation, permanent disfigurement or permanent fracture of an part of the body nor it is there that he remained under hospitalization which has endangered his life for a period of 20 days or more, Thus, in view of the law laid do in "Baldev Singhv. State of Punjab FIR No. 677/2014 PS Ranhola Page 28 of 47 State v. Lal Babu Pandey : 29 : 1996 (1) RCR (Criminal) P&H 790 the said injury does not stands covered under Section 326 IPC and which arguments of learned counsel for the petitioners could not be controverted by learned State counsel and therefore, this injury stands covered under Section 324 IPC. Learned Courts below have wrongly considered this x-ray report to be legal and legitimate piece of evidence when there had been no such adherence to legitimate process of law in proving such documents Le xray report Thus, in the light of law laid down in 'Sait Tarajee Khimchand v. Yelamarti Satvam (1972) 4 SCC 562 1971 AIR (SC) 1865, Karnal Singh v Kalra Brothers, Sirsa 2009 (2) RCR (Civil) 360: 'LIC of India Ram Pal Singh Bisen (2010) 4 SCC 491, and Muddoru Rajappa Tipanna v. State of Karnataka 2015 (4) RCR (Criminal) 485 mere exhibiting of a document does not dispenses with its proof. In the light of the same, the impugned judgment dated 27.11.2008 which has merged into the findings of judgment dated 04.12.2009 to that effect are set aside holding that in the absence of any legitimate proof the prosecution have certainly failed to prove that this injury on the head of Ranbir Singh falls under Section 326 IPC and rather it falls under Section 324 IPC The finding to this effect of the courts below is modified."
(6) The Hon'ble High Court of Karnataka in case titled as Thimmaiah Vs. State of Karnataka reported in 2011 SCC OnLine Kar 2464 , has observed that :
"There is no evidence that PW-1 was admitted to the hospital much less for 20 days. As far as PW-3 is concerned, Doctor-PW-9 as per Ex.PS has stated that the injuries are simple in nature. As far as PW-4 is concerned, no doubt, he was admitted to the hospital and he was inpatient for about 12 days and the wound certificate shows that there was a fracture of proximal phalange of FIR No. 677/2014 PS Ranhola Page 29 of 47 State v. Lal Babu Pandey : 30 : right little finger. No doubt, Doctor has opined that there is a fracture o the basis of the x-ray, however, prosecution has not produced x-ray to prove the corresponding injury to show that there was a fracture. The entire case is based on the oral evidence of PW-9. PW-9, though has opined so, even considering the same, in the absence of x-ray report, it is not possible to hold that there was a fracture. The injuries on PW-1, PW-3 and PW-4 are not proved to be grievous in nature. The overt act also do not even suggest that the accused attempted to kill PW-1, PW-3 and PW-4."
(7 ) Jayaram @ Jayaramappa & others v. State of Karnataka, 2011 SCC OnLine Kar 3288, wherein it has observed that :
"12. Referring to the evidence of PW2, the learned counsel submitted that, though doctor stated that PW5, 6 and 1 have suffered grievous injuries but they are neither supported by the X- ray nor by radiology report. Prosecution has not established that there was a fracture or a grievous injury and in the absence of such material the injury on the body of PWs. 5, 6 and 1 cannot be held as grievous injury.
Xxxxxx
23. .....Prosecution has not produced X-ray to prove that PW5 had suffered fracture. Hence, in the absence of production of the X-ray, it cannot be held that the injuries sustained by the PW5 is a grievous injury."
(7) Faizan Ahmed Wahab Shah v. State of Maharashtra, 2014 (1) Bom CR (Cri) 643, wherein it has observed that :
"18. The perusal of evidence and further reveals that:-
(a) The weapon does not match with the description given by the witness.FIR No. 677/2014 PS Ranhola Page 30 of 47
State v. Lal Babu Pandey : 31 :
(b) The injuries do not match with version of witness.
(c) Though the medical certificate shown fracture by "symbol" it was necessary for the prosecution to prove the fracture by bringing evidence of X-ray examination and supporting testimony of radiologist.
(d) The application for permission for retracting for admission of documents was submitted before the Court before the trial had commenced, and it was rejected in haste.
(e) In the background that accused had applied for retracting from the admission of documents, he has suffered prejudice.
19. It is seen that the injuries are not proved to be grievous hurt. There cannot be a presumption that the grievous hurt was caused without formal proof of the fact of fracture. The fact of existence of fracture cannot be diagnosed and certified in absence of proof of x-ray plates, unless the fact of fractured bones is perceivable barely of perception by naked eyes and sheerly by clinical examination, its being vivid and palpable. Therefore, proof of x-ray plates was necessary particularly, the appellant had made an attempt to retract the admission of medical certificate/ discharge summary."
(8) Thomas v. State of Kerala, 1991 SCC OnLine Ker 370, wherein it has observed that :
"13. ....... In Ramakrishna Panicker v. State of Kerala (AIR 1959 Ker. 372) it was held by a Division Bench of this Court that where from the circumstances of the case, it is impossible to draw an inference that the accused would have intended to give the deceased anything more than a beating or thrashing to teach him a lesson for using foul language to him. Because of the diseased condition, the spleen of the deceased got ruptured in that case. This court held that in the circumstances, the conviction of FIR No. 677/2014 PS Ranhola Page 31 of 47 State v. Lal Babu Pandey : 32 : the accused under S. 304 1.P.C. cannot stand.
14. A similar situation as in this case, arose before a learned single Judge of the Bombay High Court in Dnyaneshwar Dagdoba.
Hivrekar v. The State of Maharashtra (1982. Crl. L.J. 1870). The accused and the deceased were neighbours and friends and which resulted in the death of the deceased. It was argued that the accused had neither intention nor knowledge that his act would cause the death of the deceased. From the evidence, it was seen that the weapon used was a stick and the accused had neither intention nor knowledge that is act would result in the death of the deceased. The court held that offence would fall only under S. 323 I.P.C. No doubt, in the instant case, the fisting resulted in sub- dural haematoma which led to the death but it cannot be said that the appellant can be attributed with the knowledge that by such act he was likely to cause death of Rappai. Nor are we in a position in the circumstances of this case, to hold that the accused intended to cause that particular injury which he caused. It is true that the appellant and the deceased were inimical. However, the evidence shows that the accused was unarmed, and he happened to see the deceased in a casual way and then some altercation ensued which led to the fisting by the appellant with hand. In the circumstances, his intention could only have been to give some thrashes to the deceased. It follows that the offence committed by him will fall only under S. 323 I.P.C.
15.We, therefore, set aside the conviction of the appellant under S. 302 I.P.C. and instead convict him for an offence punishable under S. 323 I.P.C.
(9) Mujeeb v. State of Kerala, 2017 SCC OnLine Ker 36779, wherein it has observed that :
"9. ....7. Learned counsel Smt.Anjali relies on the decision of this court in Urmese v State of Kerala (AIR 1960 Ker.197) in support of her FIR No. 677/2014 PS Ranhola Page 32 of 47 State v. Lal Babu Pandey : 33 : argument that the offence committed by the appellant falls under Section 323 IPC only. Another decision she has brought to my notice is Thomas v. State of Kerala (1992 Crl.L.J 581). Chakali Sreenu v State of Andhra Pradesh (2005 Crl.L.J.4406) is yet another decision cited by the learned counsel . I have no doubt that the offence committed by the appellant falls under Section 323 IPC only."
Appreciation of relevant Law :
34. Since the accused has been charged under section 304 (Part-I)/323/325/341 IPC hence, it is relevant to mention the aforesaid sections first.
(I) Section 299 IPC reads as under :
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.
(II) Section 304 IPC reads as under :
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
(III) Section 323 IPC reads as under :
Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, FIR No. 677/2014 PS Ranhola Page 33 of 47 State v. Lal Babu Pandey : 34 : or with fine which may extend to one thousand rupees, or with both.
(IV) Section 325 IPC reads as under :
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
(V) Section 341 IPC reads as under :
Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine relwhich may extend to five hundred rupees, or with both.
35. The present case of the prosecution is based upon the direct evidence as prosecution has examined numerous witnesses who are eye witnesses of the present incident along with the medical and scientific evidence in form of medical report respectively.
Therefore, discussing each kind of evidence one by one in succeeding paragraphs.
36. It is well settled Law that ocular evidence is considered as the best form of evidence in a criminal trial, given that it is duly corroborated by other evidences and there is no reason to doubt it.
37. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, in as much as, he FIR No. 677/2014 PS Ranhola Page 34 of 47 State v. Lal Babu Pandey : 35 : sustains injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other person. In the case of Abdul Sayeed v. State of Madhya Pradesh, [(2010) 10 SCC 259] , it was held by the Hon'ble Supreme Court of India as under:
'Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built−in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness."
38. Further, in the case reported as Jarnail Singh & others v. State of Punjab, (2009) 9 SCC 719, also it was held by the Hon'ble Supreme Court of India that testimony of an injured witness will have a special evidentiary status. It was held as under:
".....the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.' Analysis of Evidence:FIR No. 677/2014 PS Ranhola Page 35 of 47
State v. Lal Babu Pandey : 36 :
39. As per the charge-sheet, it has been alleged by the prosecution that on 03.09.2014 at about 06:00 PM, near Khan's shop, Sai Enclave, Mohan Garden, Delhi, the accused in furtherance of common intention with four other accused persons (since unknown) had intentionally caused bodily injury with a danda/stick to Ram Vakil Pandey who was labouring under COPD (Chronic Obstructive Pulmonary Disease) leading to his death on 06.09.2014. It has also been putforth by prosecution that the accused alongwith co-accused persons in furtherance of common intention also voluntary caused 'grievous' injury upon the person of complainant Mukesh Gupta and also voluntary caused 'simple' injury to the mother of complainant Smt. Bimla Devi. It has been also alleged that while committing the aforesaid offence, he also wrongfully restrained the complainant Sh. Mukesh Gupta. The Court finds it appropriate to analyze the evidence under following heads :
(i) Material witnesses being injured themselves:
40.The complainant has been examined as PW-1 who has deposed on oath that on the alleged day and time of incident, he was present at the spot alongwith his parents and in the meanwhile, the accused came to the spot and asked them to give money due to him for striking deal for them regarding purchase of their house. However, when they refused to pay him anything as entire payment has already been made, the accused got angry and started beating him with kicks and fists. His parents intervened to save him but accused called 4-5 others persons FIR No. 677/2014 PS Ranhola Page 36 of 47 State v. Lal Babu Pandey : 37 : from his office which was situated nearby. His father requested the accused to settle the dispute but the accused threatened him to see him first and snatched the stick carried by his father and started beating him with that stick which was iron made and had wooden handle on it. His father sustained injuries on various parts of his body and fell down on the road. His mother tried to intervene in order to save his father but she also sustained injuries. Thereafter, accused alongwith his associates fled away from the spot. Then he gave his mobile phone to someone to make PCR call. Police came to the spot and took them to SGM hospital where during treatment, his father succumbed to his injuries on 06.09.2014. He made statement before the police which is proved as Ex.PW-1/A and site plan as Ex. PW-1/B. 40.1. He further deposed that during investigation, the weapon of offence i.e. stick of his father was recovered from the house of accused which was seized vide seizure memo Ex.PW-1/G. However, when the said stick was produced by MHC(M) and was shown to PW-1, he denied that it is the same stick which was carried by his father at the time of incident and used by the accused as the weapon of offence. He also denied that it was the same stick which was recovered from the house of accused. Hence, the same was marked as Mark P1. Despite cross- examination by the Ld. Prosecutor, PW-1 specifically denied that the said stick was the weapon of offence and stated that stick of his father was fully covered with Iron pipe except its handle whereas the stick produced in the Court was having only FIR No. 677/2014 PS Ranhola Page 37 of 47 State v. Lal Babu Pandey : 38 : half portion of iron pipe and the rest of wood. 40.2. During his cross-examination by the defence, he admitted that there were 3-4 grocery shops near the spot and one grocery shop was there at point B in the site plan proved as Ex.PW-1/B. He also admitted that there was another grocery shop of Vinod Soni also at point B in the site plan proved as Ex.PW-1/B. He also failed to remember the mobile phone he was using at the time of incident from which PCR call was made. He also failed to know if the mobile number mentioned in DD no. 33A is of the accused. He specifically stated that the mobile number mentioned therein is not his mobile number. He deposed that he told the police that several public persons had gathered at the spot at the time of incident. It was specifically put but denied by PW-1 that he can reach his sister's house at Shakurpur within half an hour if he takes left side of the main road from his house whereas it takes 2½ hours to reach her house if he goes towards right side of the main road. PW-1 volunteered that if they take right side of the main road, they can take auto from a short distance which reduces the time to reach at his sister's house.
41.PW-2 has deposed on Oath that on date and time of the offence, she alongwith her husband/deceased Ram Vakil and complainant Mukesh Gupta was going to her daughter's house situated at Shakurpur. They were on foot to take a bus and when they had reached the spot, accused came there on his motorcycle. Accused started demanding money from her son FIR No. 677/2014 PS Ranhola Page 38 of 47 State v. Lal Babu Pandey : 39 : Mukesh and when they refused as nothing was due, accused started beating his son Mukesh. When she and her husband intervened to save Mukesh, accused started beating them also and had also called his associates. Her husband was carrying a stick at that time, which was snatched by the accused and he gave beatings to them with that stick. Due to the said beatings, she became unconscious.
41.1. The weapon of offence i.e. the stick was produced by MHC(M) and was shown to PW-2, however she denied that it is the same stick which was carried by her husband at the time of incident and used by the accused as the weapon of offence. Despite cross-examination by the Ld. Prosecutor, PW-2 specifically denied that the said stick was the weapon of offence and stated that stick of her husband was fully covered with Iron pipe except its handle whereas the stick produced in the Court was having only half portion of iron pipe and the rest of wood. 41.2. During her cross-examination, she deposed that no quarrel on issue of money took place between her son and accused on the day of incident. She, her husband and her son became unconscious after beatings given by the accused. She even stated that she did not tell the doctor as to who had caused injuries to her as she was unconscious.
41.3. Accordingly, PW-1 and PW-2 firstly have different stand as to the reason for taking the route towards the spot since PW-1 stated to have taken an Auto whereas PW-2 stated to have taken a Bus to go to their sister/daughter's house. This FIR No. 677/2014 PS Ranhola Page 39 of 47 State v. Lal Babu Pandey : 40 : contradiction become important since it has been putforth by the defence that the spot is near the house of the accused and there was no occasion for PW-1, PW-2 and the deceased to be present at the spot on the alleged day, time and incident since for going to their sister/daughter's house from their house, another route was supposed to be taken by them and their presence at the spot only point towards the fact as stated in cross FIR that both the injured persons alongwith the deceased themselves came near the house of accused and were the aggressors who committed the offence of hurling abuses to the wife of accused and gave beatings to the accused and his wife. 41.4. Further, both PW-1 and PW-2 have not identified the recovered weapon of offence as the one which was being carried by deceased Ram Vakil at the time of incident and subsequently recovered at the instance of accused. However, PW-7 ASI Bijender proved the entry with respect to deposit the said stick in the malkhana as Ex.PW-7/B. 41.5. PW-6 ASI Parmender Kumar has joined the investigation on 06.09.2015 with the IO and stated that accused got recovered one wooden stick which was lying above the water cooler kept on the 'Momty' of second floor of his house, in presence of the complainant. He identified and proved the said stick produced by MHC(M) as the one recovered from the accused as Ex.P.1. 41.6. PW-10 also proved the recovery of wooden stick at the instance of accused in presence of complainant and proved the wooden stick as Ex.P.1.brought by the MHC(M) as the same FIR No. 677/2014 PS Ranhola Page 40 of 47 State v. Lal Babu Pandey : 41 : which was recovered. He also proved the subsequent opinion taken regarding weapon of offence as Ex.PW-10/A, as per which Dr. Manoj Dhingra opined that the injury mentioned in the PM report is possible with said wooden stick or similar such object.
41.7. Furthermore, PW-2 has stated that after beatings being given to her, her husband/deceased Ram Vakil and her son/PW-1, they all got unconscious. However, neither PW-1 deposed so nor the medical evidence in form of MLC states so as all the three i.e. PW-1, PW-2 and the deceased were stated to be conscious and oriented as per their respective MLCs.
(ii) Medical Evidence :
42.PW-3 Dr. Mahipal Singh has proved the MLC of all three victims i.e. of Mukesh Kumar, Ram Vakil and Bimla Devi. 42.1. MLC of Mukesh Kumar has been proved as Ex.PW-3/A, wherein it is stated that no external injury was seen at the time of examination. However, as per the X-ray report, a fracture in nasal bone was observed and therefore, the nature of injury was opined as grievous but the X-ray report has not been either filed or proved on record by the Prosecution. Ld. Defence Counsel has raised serious objections on to the same and has stated that without the X-ray report, the said injury remains unproved and has relied upon the Judgments in Ashok Kumar (supra) etc. 42.2. The MLC of deceased Ram Vakil has been proved as Ex. PW-3/B and on his examination, tenderness and swelling was FIR No. 677/2014 PS Ranhola Page 41 of 47 State v. Lal Babu Pandey : 42 : observed in his right hip joint, right wrist and forearm. One contused lacerated wound was also observed on his left eyebrow. No fracture has been deposed to have occurred and X-ray report has been proved on record. During cross- examination of PW-3, he deposed that a person can sustain tenderness and swelling due to fall also.
42.3. PW-11 proved the PM report of deceased Ram Vakil as Ex. PW-9/D and opined that the cause of death is due to shock associated with the damage of lower limb structures in person with chronic obstructive pulmonary disease. All the injuries were ante mortem in nature and caused by blunt force impact by object or surface. However, during his cross-examination, he admitted that COPD is a disease of lungs in which lungs are effected and visual appearance of a person cannot tell the status of COPD.
42.4. As per the Judgment in Ashok Kumar (Supra), it has been held that without X-ray report filed and proved on record or the Radiologist being examined, the same cannot be stated to have been proved only on the basis of opinion of the treating doctor. Therefore, the fractures if at all sustained by injured Mukesh Kumar and deceased Ram Vakil have not been proved on record. Hence, the damage to lower limb structure of deceased Ram Vakil has not been proved on record for want of X-ray report and examination of Radiologist.
43.5. Further, it has also not been proved on record that the accused knew about the COPD disease being suffered by FIR No. 677/2014 PS Ranhola Page 42 of 47 State v. Lal Babu Pandey : 43 : deceased Ram Vakil at the time of alleged offence since as per the expert opinion of doctor examined as PW-11 and DW-4, only by visual appearance, COPD disease cannot be ascertained. Therefore, no intention or knowledge of the same can be imputed upon the accused in absence of any proof of the same with regard to offence charge under section 304 (Part-I) IPC.
43.6. MLC of Bimla Devi has been proved as Ex.PW-3/C, wherein it has been mentioned that there was no external injury however there is only pain stated to be in left shoulder and hence, the nature of injury was opined as 'simple'. In the testimony, PW-2 Smt. Bimla Devi stated that she became unconscious after beatings sustained at the hand of accused however, as per her MLC, she was found conscious, oriented and even her vital statistics were reported to be normal.
(iii) Police witnesses:
43.PW-4, PW-5, PW-8 and PW-12 are only formal witnesses being duty officers.
44.PW-9 is the Investigating officer and his testimony in detail has been reproduced in the preceding paragraphs however, importantly, during his cross-examination, he deposed that one Ct. Dharmender also accompanied him to the spot after receiving of the DD. It is rightly pointed out by the defence that said Ct. Dharmender has not been cited and examined as prosecution witness. Further, he stated that the injured persons FIR No. 677/2014 PS Ranhola Page 43 of 47 State v. Lal Babu Pandey : 44 : were found admitted in the hospital and despite making inquiries from them, they did not give any statement stating that they are not feeling well and they will give their statement after they feel well. It is rightly pointed out by the defence that as per the MLC, injured Bimla Devi only sustained simple injury and injured/complainant Mukesh Kumar only minor fracture and he was never admitted in the hospital so there was no occasion for not giving their statements when they both were conscious and stable. It has been further rightly pointed out that the statement was only given after injured Ram Vakil expired and before the same, no PCR call or complaint or statement on their MLCs was given by any of the injured person.
44.1. PW-9 further deposed during his cross-examination that at the spot, there was only one shop as it was a residential area. However, PW-1 complainant had admitted that there were few grocery shops at the spot, hence, visit of IO to the spot for preparation of site plan is highly doubtful. 44.2. Even PW-1 Sh. Mukesh Kumar Gupta deposed during his examination that public had gathered at the spot at the time of incident however, PW-9 admitted during his cross-examination that he did not record the statement of public persons present at the spot by stating that they did not disclose their names and also refused to join the investigation, however admittedly no notice was given to them to join the investigation, which is proved on record. Most importantly, PW-9 denied the suggestion that Mr. Sant Lal and Mr. Vinod Soni visited the FIR No. 677/2014 PS Ranhola Page 44 of 47 State v. Lal Babu Pandey : 45 : police station to record their statements. However, in the police file, statement of both the aforesaid persons have been recorded u/s 161 Cr.P.C. but since they did not support the prosecution case, they were not cited as witness and their statements were withheld.
44.3. PW-9 IO/SI Baljeet Singh also admitted during his cross- examination that FIR no. 09/2015 PS Ranhola was registered on the basis of DD no. 33A. As per the said DD, the call was made by the accused from his mobile number. PW-9 also admitted that he came to know about the MLC of accused as he received the same on the same day and as per opinion on injury, injury was 'grievous' in nature. As per record, cross-examination of PW-9 was deferred on 05.04.2022 however thereafter, he expired as per his death certificate on 04.09.2023.
Defence Witnesses:
45.DW-1 Smt. Kamlawati Pandey (wife of the accused) deposed that on the alleged date, time and incident, the injured persons i.e. Mukesh, Ram Vakil and Bimla Devi alongwith Nizamuddin came to their house and started hurling abuses to her and her husband. Meanwhile, her husband came at the spot on motorcycle and on seeing him complainant Mukesh snatched stick of his father/injured Ram Vakil, while hurling abuses to her husband and started giving beatings to him. When complainant Mukesh snatched stick from hands of his father/deceased Ram Vakil, he fell on the floor and sustained FIR No. 677/2014 PS Ranhola Page 45 of 47 State v. Lal Babu Pandey : 46 : injury on his head as his head got struck against the wall. Her husband sustained injuries on his stomach, wrist and back due to beatings given by complainant Mukesh. Thereafter, her husband made a call at number 100 to the police and she alongwith her husband was taken to Govt. hospital by the neighbour on bike. They made a complaint on the same day before police and followed the same but the cross FIR bearing no. 09/2015, PS Ranhola was registered as lately as 02.01.2015.
46.DW-2 Sh.Vinod Kumar and DW-3 Sh. Sant Lal have corroborated the version of DW-1 while emphatically deposing on Oath that on alleged date of incident, they witnessed the complainant Mukesh Kumar standing alongwith his parents at the spot while hurling abuses to accused in aggressive state. In the meanwhile, complainant Mukesh snatched stick from the hands of his father/deceased Ram Vakil and started beatings to the accused due to which he sustained injuries on his stomach and wrist. When complainant Mukesh was snatching stick from hands of his father/deceased Ram Vakil, his father fell down on the floor and his head got struck against the wall thereby injuring his heard. Thereafter, accused called the police and he alongwith his wife was taken to hospital by one neighbour, whereas Mukesh was taken to hospital by the police. They both stated that they were called at the Police station by the IO and their statements were recorded.
46.1. As already stated, as per record, statement of DW-2 Sh. Vinod Soni and DW-3 Sh. Sant Lal was recorded by the police FIR No. 677/2014 PS Ranhola Page 46 of 47 State v. Lal Babu Pandey : 47 : which is part of the police file. Hence, the credibility of the said witnesses is beyond any doubt and their testimonies casts serious doubt upon the case of the prosecution.
Conclusion/Findings :
47. With this background, the prosecution has not been able to prove the complicity of the accused in the commission of crime beyond shadow of all reasonable doubts and has not been able to prove all the ingredients of the charge u/s 304(Part-I)/323/325/341 IPC for which accused has been charged and has faced trial. Accordingly, accused Lal Babu Pandey is acquitted of the Charge u/s 304(Part-I)/323/325/341 IPC in the present matter.
48.Accused have been directed to furnish bail bonds in view of Section 437A Cr.P.C. which has been furnished and accepted for the period of six months from today.
49. File be consigned to record room. Digitally signed by SHEFALI SHEFALI BARNALA TANDON BARNALA Date:
TANDON 2025.01.18
18:20:28
+0530
ANNOUNCED IN THE OPEN (Shefali Barnala Tandon)
COURT ON: 18.01.2025 ASJ-05 (West), THC, Delhi
It is certified that this Judgment contains 47 pages and Digitally signed each page bears my signatures. by SHEFALI SHEFALI BARNALA BARNALA TANDON TANDON Date:
2025.01.18 18:20:40 +0530 (Shefali Barnala Tandon) Additional Sessions Judge -05, (West) Tis Hazari Courts Delhi FIR No. 677/2014 PS Ranhola Page 47 of 47 State v. Lal Babu Pandey : 48 : FIR No. 677/2014 PS Ranhola Page 48 of 47 State v. Lal Babu Pandey