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State vs . Kunwar Pal @ K.P. S/O Sh. Balram R/O ... on 8 February, 2012

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 IN THE COURT OF SH. J. R. ARYAN: DISTRICT JUDGE-CUM-ADDITIONAL
SESSIONS JUDGE : (INCHARGE) NORTH-EAST DISTRICT : KARKARDOOMA
                          COURTS : DELHI :


S.C. No. 97/10
Unique Case ID No. 02402R0305212010
State         Vs.   Kunwar Pal @ K.P. S/o Sh. Balram R/o First Pusta,
                    New Usmanpur, Delhi.

FIR No.242/10
PS New Usmanpur
U/s 302 IPC.

Date of Institution :-             15.11.2010
Date of reserving the Judgement :- 01.02.2012
Date of Pronouncement :-           08.02.2012

JUDGEMENT :

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1) Accused Kunwar Pal s/o Sh. Balram has been tried on the charge of murder and the charge is that on 01.08.2010 at around 7.00 pm, in gali no.2, Pehla Pusta, New Usmanpur within the jurisdiction of PS New Usmanpur, North-East District, Delhi accused caused death of Wakil by inflicting danda blows on the head of the victim and thereby committed offence u/S 302 IPC. Accused claimed trial by pleading not guilty to charge.

2) Accused was charge sheeted for this offence wherein FIR was recorded on the statement of HC Dharam Singh PW-2 who claimed to be the eye witness of this case. According to witness HC Dharam Singh he along with Ct. Sandeep PW-1 then posted in Police Station Beat No.1 were on a patrolling duty on the date of incident i.e. 01.08.2010. At around 7.00 pm, they SC No. 97/10 Page 1/13 2 were present in gali no.2, Pehla pusta, New Usmanpur and the witness saw accused Kunwar Pal a bad character of the area holding a danda in his hand and was quarreling with another person and uttered to that person that despite residing in the area of accused, he was not obeying accused and accused would kill him. Accused then inflicted 2/3 danda blows on the head of that person. Informant HC Dharam Singh along with Ct. Sandeep ran towards that scene of the crime and apprehended Kunwar Pal and found that other person victim had suffered injury in his head as well on the eyebrow. Someone made 100 number call and PCR vehicle arrived and removed injured/victim to hospital. Injured/victim had disclosed his name Wakil s/o Naresh resident of Pehla pusta, New Usmanpur.

3) This statement by HC Dharam Singh as PW-2/A was recorded by HC Jagpal PW-3, when HC Jagpal receiving DD No.25A recorded in the Police Station at 7.30 pm had proceeded for spot inquiry with Ct. Rajan. By the time HC Jagpal reached the place of occurrence, he found HC Dharam Singh and Ct. Sandeep physically holding accused and victim/injured had been taken to hospital by PCR. HC Jagpal then reached GTB Hospital and collected MLC of victim/injured Wakil but then victim was described unfit for statement. HC Jagpal reached the place of occurrence again and there he recorded statement of HC Dharam Singh. From the nature of injury as found recorded in MLC and from statement of HC Dharam Singh offence u/S 307 IPC was found committed by accused and FIR was got recorded by issuing rukka as Ex.PW3/A by HC Jagpal. Further investigation was taken over by ASI Yashpal. Accused was arrested, weapon danda recovered from accused which was about 2 feet long was seized through memo Ex.PW1/C. SC No. 97/10 Page 2/13 3 Meanwhile, an information was received on 08.08.2010 that victim of this case had died. DD Ex.PW15/B was recorded to that effect. Body of the victim was subjected to postmortem at GTB Hospital. Three injuries were noticed on the person of the victim and finally cause of death was opined as head injury and its complications as result of blunt force impact to the head. Injuries were further described anti-mortem in nature. Other investigating proceedings were carried out and accused finally was charge sheeted for offence of murder.

4) On receiving the charge sheet as committed for sessions trial and holding a prima facie case to try accused on a charge of murder made out that charge was framed and accused pleaded for trial. Accused has been defended by Sh. Mohd. Hasan who was appointed Amicus.

5) In all 15 prosecution witnesses have been examined. PW-1 and PW-2 are police officials who claimed to be eye witness of this case. Both of them supported the charge and deposed that they were on a patrolling duty on the date of incident and were present in gali no.2 at around 7.00/7.15 pm. PW-2 HC Dharam Singh was driving the motorbike and Ct. Sandeep was his pillion rider. They saw a crowd having gathered and they reached at the spot. They saw accused Kunwar Pal holding danda in his hand and was quarreling with the victim and both the witnesses heard accused uttering that victim despite living in the area of accused dared not to obey him and he would kill him. Saying these words, accused inflicted 2/3 danda blows on the head of the victim and both the witnesses apprehended accused and injured was removed to hospital by PCR.

6) Witness further deposed that HC Jagpal and Ct. Rajan arrived on the SC No. 97/10 Page 3/13 4 spot and PW-2 HC Dharam Singh identified and exhibited his statement which was recorded by HC Jagpal.

7) HC Jagpal has been examined as PW-3 and Ct. Rajan who had accompanied him is PW-4. PW-5 and PW-6 are brothers of deceased who identified body of deceased and received it after its postmortem. PW-7 is the duty constable who proved initial DD 25/A as Ex.PW7/A and then also proved the FIR Ex.PW7/B. PW-8 is again a police officer who had prepared site plan on scale showing the scene of the crime.

8) PW-9 is a doctor from Department of Forensic Medicine, GTB Hospital and doctor stated in evidence that on 08.08.2010, he conducted postmortem on the body of the victim wherein MLC of the victim dated 01.08.2010 was signed by him. Doctor proved and exhibited the postmortem report. Doctor further stated in evidence that on 17.09.2010 a danda was produced in unsealed condition for an opinion if it could be a weapon whereby injuries appearing on the body of the victim were possible. Doctor prepared sketch of that danda and finally opined that injuries on the body of the victim could possibly be caused by that danda. He exhibited that report/opinion as Ex.PW9/B. Doctor however, admitted in cross examination that injuries on the body of the victim could be possible if he fell from a height.

9) PW-10 is a public person who owned a tea shop near the place of occurrence and according to prosecution he was eye witness of this case. This witness however, did not support the prosecution charge.

10) PW-11 is the Investigating Officer Insp. R.K. Khatana who had taken over investigation after the death of the victim. PW-12 is doctor who had examined victim and prepared his MLC when soon after the incident victim SC No. 97/10 Page 4/13 5 had been brought to GTB Hospital. PW-13 is the malkhana mohrar and PW-14 had taken up opinion proceedings with the doctor by producing before doctor the weapon danda and finally PW-15 is the initial Investigating Officer.

11) Accused when examined u/S 313 CrPC to explain incriminating evidence against him, to the question that PW-1 and PW-2 had seen accused causing danda blow injuries on the head of the victim and accused was apprehended by them and weapon danda was recovered from his possession, accused came out with an answer that he had given only one danda blow on the head of the victim and victim died. He denied to have given 2/3 danda blows. He also admitted he had been apprehended by the police from the place of incident. Evidence examined in his defence by ld. counsel was a doctor from IHBAS. From a past medical history of accused whereby accused had been getting treatment from IHBAS, doctor stated that patient Kunwar Pal had been treated from this hospital in the year 2004. Again he was brought to the Psychiatry OPD IHBAS by his family people on 13.05.2008. Doctor exhibited report as Ex.DW1/A which had been prepared and issued by a psychiatric Dr. Deepak. Another defence witness a police official from PS New Usmanpur and witness deposed from record that in the year 2008 and 2010 complaints were received in the Police Station from brother of accused that accused being mentally disturbed used to give beatings and abuse public persons. From this defence evidence, ld. counsel tried to make out an argument that accused was suffering from mental disorder and thus could be said to be an insane on the date of the incident and was entitled to a protection u/S 84 IPC. With this evidence from both sides trial concluded.

12) Arguments have been heard from both sides. Defence counsel argued that presence of PW-1 and PW-2 on the place of occurrence is highly doubtful and their testimony claiming to be eye witness of the incident is not acceptable and believable. Counsel argued that there are serious contradictions in these two witnesses and rather PW-1 has himself admitted in cross examination that he had not seen accused assaulting deceased. Counsel further submitted that earliest DD 25-A recorded in police station is to the effect that a mad person had assaulted another person and that mad person had been taken away by the police. Counsel submitted that this information conveyed to police control room by some public person if taken to be a version of the incident then incident when occurred certainly PW-1 and PW-2 were not present. It is none of the prosecution case that PW-1 and PW-2 having apprehended accused on the spot in this incident had removed him or brought him to the police station. Counsel argued that accused being a bad character of the area which fact has been admitted by all police official witnesses, he was involved and implicated only as suspected to have committed this offence. Counsel argued that incident has occurred at 7.00 pm and number of public persons were present but then no public person has been examined as a witness of the incident. PW-10 who had given 100 number call to the police and whose tea shop was situated close to the place of occurrence, he has denied to have seen accused causing assault and injury to the victim.

13) Finally counsel argued that medical evidence does not coincide the deposition of PW-1 and PW-2. Even the postmortem report contradicts and conflicts with MLC Ex.PW12/A. Counsel also submitted that if accused SC No. 97/10 Page 6/13 7 explained and stated during his examination u/S 313 CrPC that he had caused one danda blow on the head of the victim then it could be on account of insanity with which accused was suffering and that by itself is not to be taken to hold charge proved against accused.

14) Ld. APP on the other hand argued that there was no reason to not to believe PW-1 and PW-2 as nothing came in their cross examination to suspect or doubt their presence. Both these witnesses categorically deposed that they saw accused inflicting 2/3 danda blows on the head of the victim and they had apprehended accused on the spot. Accused has admitted some of these facts, at least the effect of his apprehension from the spot while he was holding danda and he further submitted that where accused has admitted to have given one danda blow on the head of the victim and doctor has given an opinion Ex.PW9/B that weapon danda could have caused the head injury found suffered by the victim then there was no reason to not to accept the prosecution case that it was accused who assaulted deceased and then only question could be as to the nature of offence committed by accused, whether it could fall in the definition of murder or would fall in the category of culpable homicide not amounting to murder. Ld. APP argued that medical evidence corroborated the testimony of PW-1 and PW-2 and could not be described to be inconsistent or contrary to ocular evidence and thus accused was liable to be convicted in this case. I have considered and appreciated all these contentions and arguments.

15) Point for consideration arose if PW-1 and PW-2 were to be believed and accepted who claimed to be eye witness of the incident. Ld. defence counsel argued that if incident had occurred in a well habited public place at SC No. 97/10 Page 7/13 8 7.00 pm then there ought to be some independent public witnesses and non- examination of any such public witness must be seen to create a doubt in the prosecution case and a doubt in the testimony of these two witnesses. Having given due consideration to this content of ld. counsel, I find that it is not a proposition of law that in the absence of any independent witness to corroborate and support the testimony of police official witnesses, testimony of such official witness be not accepted. Such a witness stand at par with any other witness in law. Court has to however, take a close scrutiny of such evidence and to examine and find out that presence of witnesses was probable, acceptable and his testimony suffered no serious criticism and was believable. In that light of legal proposition we have to examine evidence of these two witnesses. Examination further needs to be scrutinized in the background of prosecution's own daily dairy entry 25A Ex.PW7/A which had been recorded at 7.30 pm and its contents are that a mad person had assaulted another person and mad person had been taken away by the police. PW-1 deposed that he saw accused Kunwar Pal who was BC of the area having danda in his hand and was quarreling with a person. He further says that there was a crowd and he saw the quarrel from a distance of 100/150 Meter. He further says that being pillion rider on the motorbike, he himself could not see other things. Someone called police on 100 number and PCR arrived and removed injured to the hospital whose name was revealed as Wakil.

16) PW-1 did not depose if he himself saw accused assaulting victim and on that point ld. public prosecutor put leading question to witness with the permission of the court. Witness answering question as correct deposed that SC No. 97/10 Page 8/13 9 accused had given 2/3 danda blows on the head of victim Wakil. In cross examination by defence counsel on behalf of accused, witness categorically deposed that he had not seen accused Kunwar Pal from a distance of around 100 Meter, he saw the crowd. He deposed further that till the time they stopped their motorbike, he had not seen anything but was hearing the voice of accused, he had not seen accused giving danda blows on the person of victim Wakil. Witness deposed further that he saw blood coming out of injuries of the victim but it did not fell on the ground.

17) Ld. APP when found witness to have deposed in cross examination that he did not see accused causing danda blows to the victim, with the court's permission he re-examined the witness wherein witness admitted as correct that he had seen accused giving danda blows on the head of victim.

18) From this testimony of witness it is difficult to accept his statement if infact he himself saw accused hitting the deceased. Witness when says that from a distance of around 100 to 150 Meter saw a crowd and by the time they reached, he saw only accused uttering some words and he himself did not see accused causing danda blows to victim, witness stating prosecution case in re-examination is a doubtful version of the witness. Another aspect as to what extent even testimony of this witness that accused gave 2/3 danda blows to the victim was to be believed when medical evidence was not very strictly in consonance with version given by the witness.

19) PW-2 says that he saw public having gathered. He stopped his motorbike and entered into the crowd and then he saw accused holding a danda in his hand quarreling with the victim and having uttered words inflicted 2/3 danda blows on the head of the injured. According to this SC No. 97/10 Page 9/13 10 witness, danda blows were given by accused after this witness and PW-1 had arrived where the crowd had collected. It is contrary to what PW-1 has deposed as according to PW-1 they saw a crowd from a distance of 100/150 Meter and by the time they reached, they saw only accused holding danda and infact PW-1 did not see accused causing danda blows to the victim.

20) Whether medical evidence provides any support and corroboration to these witnesses. MLC Ex.PW12/A describes victim, brought by PCR official ASI Satvir, was stated to be a case of assault at New Usmanpur at 7.00 pm. He saw a case of no history of loss of consciousness, patient was conscious. Injuries on his person found were 1) laceration 2 cm over left eyebrow upper end, 2) localized oedema left temple. Finally victim when died after a week of the incident, his body when subjected to postmortem following three injuries were notice which are re-produced as below:

i) After removal of antiseptic surgical dressings from the scalp a 'C' shaped surgically stitched craniotomy wound was present on the right side of the scalp. It was measuring 22 cm in length extending from the upper border of the right ear and terminating in the middle of the frontal region at the hair line 10 cm above the glabella. On removal of the stitches the dimensions of the wound was 22 cm x 1 cm x 1.5 cm with evidence of healing noted.

ii) Brownish colour abrasion measuring 2 cm x 1 cm was present on the outer margins of the left eye brow.

iii) Surgically stitched incised wound measuring 6.3 cm x 0.5 cm x 2.5 cm was present on the right side of the abdomen 3 cm from the mid line and 3 cm below the right costal margins. Craniotomy flap was present in this region in the peritoneal cavity. Finally cause of death was opined as head injury and SC No. 97/10 Page 10/13 11 its complications as a result of blunt force impact to the head. Injury no.1 as per this postmortem report is a 'C' shaped measuring 22 cm extending from the upper border of right ear and terminating in mid line of the frontal region at the hair line 10 cm from the glabella. A 'C' shaped injury 22 cm long is irreconcilable with danda blow injuries given by accused to the victim as per PW-1 and PW-2. Like wise injury no.3 is a incised wound measuring 6.3 cm x 0.5 cm x 2.5 cm in the right side of the abdomen. This injury remains unexplained. Defence counsel pointed to evidence of PW-9 Dr. Thejaswi H.T. who had conducted postmortem whereby doctor admitted that such a bodily injury was possible by a fall from a height. Defence suggested to Investigating Officer was that infact victim had suffered these injuries somewhere else and accused was implicated only he being considered to be a bad character of the area. In light of these facts and circumstances when testimony of PW-1 and PW-2 is examined, a reasonable doubt stands created in the veracity of these two witnesses and it requires as a measure of prudence that some independent public witness ought to be there to depose on the incident.

21) PW-3 HC Jagpal who initially reached the place of occurrence and found PW-1 and PW-2 on the spot and found that injured/victim had been taken to hospital, he reached hospital, collected MLC of the injured and returned to the spot and observed in rukka that injured had been declared unfit for statement. This appears to be his own creation that injured was unfit for statement. No such observation has been recorded by the doctor in MLC, on the contrary doctor noted that patient was conscious and he was not a case of history of loss of consciousness. It is only on 4th of August 2010 that SC No. 97/10 Page 11/13 12 some endorsement " unfit for statement" appears recorded in this MLC. We have statement of HC Dharam Singh PW-2 on the basis of which FIR of this case was recorded showing that as soon witness reached, the injured/victim disclosed his name as Wakil son of Naresh, resident of Pehla pusta, New Usmanpur, Delhi. These particulars of the injured came to be recorded in the MLC. PW-12 Dr. Lalit who had examined the injured/victim and had prepared MLC has nowhere deposed if injured was not in a position to speak or was unfit for statement. Not examining injured/victim on that occasion is again a serious lapse and prosecution must see to whom it can be attributed. Person from whose land-line phone 100 number call was made in this incident when examined as PW-10 has not supported the prosecution case if it was accused who assaulted deceased. That incident had occurred just in front of tea shop of this witness.

22) Prosecution heavily relied upon the statement of accused recorded during his 313 CrPC examination wherein accused has admitted to have given one danda blow on the head of the victim. To my considered view, before prosecution seeks to rely upon the statement of accused, it's primary onus to prove the guilt of accused would not stand diluted for any reason.

Even otherwise he inflicted only one danda blow and the victim fell dead as accused explained. This is somewhat irrelevant and vague statement by the accused as admittedly the victim died after a week in the hospital. Injury 'C' shaped 22 cm in the left parietal region creates enough doubt as to how it came to be caused and prosecution has failed to prove it. Ld. APP argued that weapon danda recovered from accused in this case had been produced before doctor who had conducted postmortem and doctor opined that injury SC No. 97/10 Page 12/13 13 on the head of the victim was possible by that danda. Injury no.2 on the person of victim/deceased was a brownish colour abrasion measuring 2 cm x 1 cm over the outer margin of left eyebrow. It has not been got specified in that opinion Ex.PW9/B that even 'C' shaped injury described above was also possible by that danda blow. Accordingly, prosecution cannot draw any help from the statement of accused in his 313 CrPC examination.

23) Prosecution charge cannot be held to have been proved. Testimony of PW-1 and PW-2 who have claimed to be eye witnesses is in serious doubt. There is no other evidence to connect accused with this crime, accused is entitled to be acquitted of the charge.

Announced in the Open Court (J.R. Aryan) On this 8th day of February, 2012. District Judge/Addl. Session Judge, (In-charge) North-East District, Karkardooma Courts, Delhi.