Delhi District Court
State vs . Raj Kumar @ Rajesh Pandit on 6 September, 2010
1
IN THE COURT OF SHRI S.P.GARG, DISTRICT JUDGE IV
NEW DELHI
ID No.02403R017632009
S.C.No. 40/10
State vs. Raj Kumar @ Rajesh Pandit
S/o Sh Laxman Mahadev Bhalerao
R/o 63, Rama Apartment, Jari Patka No.1
PhalkeBazar,Lasker Gwalior,MP
(Presently lodged in J.C)
FIR No.52/2009
P.S. Parliament Street
U/s 302 IPC
Date of institution of the case : 20.06.2009
Date when received on committal : 09.04.2010
Date when case reserved for orders : 17.08.2010
Date of announcement of judgment : 06.09.2010
(Decided within FIVE MONTHS)
J U D G E M E N T:
Accused Raj Kumar @ Rajesh Pandit was arrested by State Vs Raj Kumar Page No. 1 of 41 2 the police of Police Station Parliament Street vide FIR No.52/09 and was challaned to the court for trial for the commission of offence punishable u/s 302 IPC.
2 In nutshell, case of the prosecution is as under:
(A) FACTS
3 Present case was registered on the statement of ASI Kapoor
Singh on the intervening night of 22/23.3.09. In his statement made to the police, ASI Kapoor Singh disclosed that he was posted as ASI at PP North Avenue, PS Parliament Street. On the intervening night of 22/2332009, at about 1.45 am, he alongwith Ct Sanjay was present near Gurudwara Rakab Ganj regarding inquiry of DD no. 24A. He received information from duty officer, PS Parliament Street through wireless that voices of ''bachaobachao'' were coming from near Kothi no. 18, near Church, Rakab Ganj Road, New Delhi and people were running here and there. On that he alongwith Ct Sanjay reached in front of Kothi no. 18 near park on govt. motorcycle. He saw that one lady was weeping. He also saw that at some distance one ''fat'' person whose name was ascertained as Raj Kumar @ Rajesh Kumar Pandit was giving blows with brick to a ''thin'' person State Vs Raj Kumar Page No. 2 of 41 3 lying on the ground. Accused Raj Kumar was apprehended. On checking, the person lying on ground, was found to have expired. The accused had murdered AN unknown person by inflicting injuries on his person with a brick.
4 On the intervening night of 22/2332009, SI Subhash from PP North Avenue also reached the spot at about 1.45 AM, near wall of Kothi No. 18, Gurdwara Rakabganj Road, on receipt of DD No. 28A. He found dead body of a male lying there and his head was in East direction and legs were towards West direction and face was towards sky. One ''brick'' and one ''danda'' were lying near the dead body. ASI Kapoor Singh and Ct. Sanjay had apprehended the accused.
5 SI Subhash Chand recorded above said statement of ASI Kapoor Singh and got the present case registered. He summoned the crime team at the spot. After registration of the FIR, further investigation was assigned to Insp. Suraj Bhan. 6 Further case of the prosecution is that on getting investigation, Insp.Suraj Bhan, alongwith Ct. Sanjay reached at the spot inside the park behind Gurdwara Rakabganj, in front of Kothi no. 18. He State Vs Raj Kumar Page No. 3 of 41 4 inspected the dead body lying inside the park near the wall of the church and prepared death report. He got the dead body sent to mortuary of RML Hospital. He inspected the place of occurrence and prepared site plan. Insp. Suraj Bhan recorded statements of SI Subhash Chand and ASI Kapoor Singh u/s 161 CrPC. Accused was arrested and necessary memos regarding his arrest were prepared. The accused was interrogated and his disclosure statement was recorded. Pursuant of his disclosure statement, accused got recovered the weapons of offence, i.e. Stone/brick and one bamboo stick. IO prepared necessary sketches and seizure memos. He also seized blood control soil, earth control , blood control stone from the church wall and earth control of chruch and prepared necessary seizure memos. IO also seized blood stained clothes of the accused which he was wearing at the time of incident. He also interrogated wife of the accused Smt. Kiran, who was present at the spot. Kiran, wife of accused was got medically examined. Subsequently, accused was produced before the court from where he was sent to JC. 7 During further investigation efforts were made to identify the deceased with the help of a telephone number of Bihar and it was State Vs Raj Kumar Page No. 4 of 41 5 revealed that deceased was Karan Kumar s/o Sh Khenar Rai, VPO Kailash Nagar,West Champaran, Bihar. On 24.3.2009, IO made inquries from the guards on duty at Kothi No. 18, Gurdwara Rakabganj Road and recorded their statements u/s 161 CrPC. He also examined Depot Supervisor of Cream Bell, Ice Cream Depot, u/s 161 CrPC from where the accused used to take push cart of ice cream. IO got conducted postmortem on the body of deceased and subsequently collected postmortem report. After postmortem, dead body was handed over to the father of deceased.
8 During further investigation IO got sent the weapons of offence to the doctor who had conducted postmortem on the dead body of deceased to seek his opinion. With the permission of the court, IO also obtained sample scalp hair of the accused and prepared necessary seizure memo. He got sent the exhibits to FSL and subsequently collected FSL reports. IO got the scaled site plan prepared. He recorded statements of concerned witnesses at different stages of investigation and after completion of investigation filed challan against the accused on in the court of learned M.M for the commission of aforesaid offence.
State Vs Raj Kumar Page No. 5 of 41 6
(B) COMMITTAL OF CASE 9 After compliance of the provisions of sections 207 and 208
Cr.P.C the Ld. M.M committed the case to the Court of Sessions for 9/4/2010.
(C) CHARGE 10 After hearing the learned Addl. P P for the State and
learned counsel for the accused, charge for the commission of offence punishable u/s 302 IPC was ordered to be framed against the accused vide order dated 9.4.2010. The accused pleaded not guilty to the charge and claimed trial.
(D) PROSECUTION EVIDENCE 11 To prove its case, the prosecution examined 21 witnesses in all. The witnesses examined by the prosecution are PW 1 SI
Subhash Chand, PW 2 Dr Vineet Pathak, PW3 Dr S K Nair, PW4 Ct. Arun Kumar, PW5 Ct. Umedi Lal, PW6 HC Manjeet Kumar, PW7 Ct Harkesh, PW8 Ct. Pardeep Kumar, PW9 ASI Kapoor Singh, PW10 HC Rajinder Singh, PW11Ct Ram Niwas, PW12 Const. Sanjay, PW13 S.I Munish Kumar, PW14 SI Vishram Meena, PW15 Ct. Girdhari, PW16 ASI Ram Avtar, PW17HC Raj Singh, State Vs Raj Kumar Page No. 6 of 41 7 PW18 T R Femandey, PW19 N K Tanwar, PW20 Ms Deepti Bhalero and PW21 Insp.Suraj Bhan.
(E) SATEMENT OF ACCUSED
AND DEFENCE EVIDENCE
12 Statement of the accused was recorded u/s 313 Cr.P.C.
Accused denied his involvement in the commission of the offence. Plea of the accused is that he has been falsely implicated in this case. He had come to Delhi on 21.3.09 in the morning hours alongwith his wife and two children to perform "puja" as he had "Mannat" for a son. He performed "Puja" there and next day was Sunday. On that day, there was a "Kirtan" in the Gurdwara and he remained there for the night to join in the "Kirtan. On the same day, at night when they were performing "Kirtan", his son could not sleep due to the sound of "Kirtan" For making him silent, he came outside the gate of Gurdwara with him. He saw four/five persons consuming alcohol near the gate of Gurdwara. He informed "Sewadar" regarding that fact and the "Sewadar" made them flee. He was standing near the gate of Gurdwara and after sometime, he saw some quarrel taking place among the said persons near the park. He informed about that State Vs Raj Kumar Page No. 7 of 41 8 incident to some persons. After that, he came back inside the Gurdwara. Next day morning, when they were preparing to go to Haridwar, some police persons came to him and told him to accompany them to police chowki North Avenue. Police officer told him that the above said persons had seen him while they were quarrelling with each other and that they would kill him. Thereafter he was falsely implicated in this case.
13 Accused however, did not prefer to lead any evidence in his defence.
14 I have heard learned Addl. P P for the State, and Sh A K Sahu, learned defence counsel for the accused and have gone through the file.
(F) ARGUMENTS OF LD. ADDL. PP FOR STATE 15 Contention of learned Addl. P P for the State is that the
prosecution has proved its case against the accused beyond reasonable doubt. The material prosecution witnesses who had witnessed the accused inflicting injuries with a stone on the person of the deceased have fully supported the case of the prosecution and there is nothing to disbelieve their positive testimonies. State Vs Raj Kumar Page No. 8 of 41 9
(F) ARGUMENTS OF LD. DEFENCE COUNSEL
FOR THE ACCUSED
16 On the other hand learned defence counsel has vehemently
argued that there are various discrepancies in the case of
prosecution which make it unsafe to convict the accused. The accused did not try to run away on seeing the police party. The accused alone was not imagined to inflict fourteen injuries on the person of the deceased with two weapons allegedly recovered in this case. There are inherent defects in the story of the prosecution. Just to solve a blind case, the accused has been made a scape goat. No incriminating material was recovered from the possession of the accused. No evidence was collected by the prosecution to show if accused used to sell ice cream. The deceased was not removed to hospital for long duration. No independent public witness was joined in the investigation at any stage. The accused had no motive to commit murder of the deceased. Security Guards posted at Kothi No. 18 did not reach at the spot. They were unable to witness the incident during night from a long distance particularly when there was darkness in the park. There is no worthwhile evidence on record to connect the State Vs Raj Kumar Page No. 9 of 41 10 accused with the commission of the crime.
(H) FINDINGS 17 I have considered the arguments of the learned Addl. P.P
for the State and the learned defence counsel for the accused and have scanned the testimonies of the prosecution witnesses minutely. Case of the prosecution is being discussed as under:
(1) Homicidal Death 18 At the out set, it may be mentioned that the Ld. Defence Counsel for the accused has not disputed homicidal death of
deceased. His only plea is that homicidal death of the deceased was not caused by the accused and that he has been falsely implicated in this case.
19 On scanning the testimonies of the prosecution witnesses, I am of the considered view that deceased Karan Kumar Ajay had met with homicidal death in this case. Material testimony on this aspect is that of PW3 Dr S K Naik who had conducted postmortem on the dead body of deceased on 25.3.2009. The detailed postmortem report Ex. PW3/A containing 14 injuries on various body parts of the deceased has been proved by this witness. He further testified that in his opinion State Vs Raj Kumar Page No. 10 of 41 11 cause of death was "cranio cerebral injuries as a result of hard and blunt force trauma to the head". All the injuries mentioned in the postmortem report were opined to be ante mortem in nature, fresh in duration and could have been caused by the alleged weapons of offence. All the injuries together and all the head injuries together were opined to be fatal in the ordinary course of nature. This witness haD also examined the alleged weapons of offences and had opined that injuries mentioned in the postmortem report were possible with the weapons Ex. P1 (bamboo stick) and Ex. P2 (brick). 20 In the crossexamination, this witness stated that it was difficult to say as to which injury in the postmortem report was caused by what weapon of offence as both the weapons used in the incident were hard and blunt weapons. There was foreign material on the injury on the head. He did not collect the finger nails of the deceased. There was no foreign material like mud, grass and soil in the nails of the deceased. There might be blood loss due to injuries to the tune of not more than 1.5 liters. Death was possible due to loss of 1.5 liters of blood with other factors mentioned in the postmortem report. 21 Entire testimony of this witness reveals that ld. Defence State Vs Raj Kumar Page No. 11 of 41 12 Counsel for the accused has not challenged the cause of death opined by the witness. Nothing was suggested to the witness in the crossexamination that death of deceased was natural or accidental in this case. Other prosecution witnesses have also testified about the injuries inflicted to the deceased with brick. Deceased was found smeared in blood and had met with an instant death. Hence, it is a case of culpable homicide.
(2) Direct ocular Evidence 22 To infer the guilt of the accused, testimony of PW15 Ct. Girdhari Lal is very relevant and material. He had witnessed some sensation in the park while on duty in the intervening night of 22/23.3.2009. He deposed that n the said night, he was posted as Constable in RAC 8th Battalion, E Company and was on duty at Kothi No. 18, Gurdwara Rakabganj Road allotted to Sh Sita Ram Singh, MP, Lok Sabha from JD(U). There was a park of NDMC in front of the said Kothi and the accused present before the court alongwith his wife and two children used to sleep there at night. Accused used to sell ice cream on a push cart near the park. The witness further testified that on that night at around 12.45 a.m., there was some sensation State Vs Raj Kumar Page No. 12 of 41 13 seen in the park and he saw some quarrel taking place there. He informed Guard Commander Raj Singh about the same. He, ( Raj Singh) came there near to him. There was darkness in the corner from where sensation was heard. One lady came out from the darkness and they identified her to be the wife of the accused. She was crying. The Guard Commander Raj Singh thought that accused might be killing some snake in the park. Thereafter, he felt that there was some quarrel. They saw one boy behind the trees in the park and thereafter Raj Singh made telephone call to PCR on 100. Police officials of PCR reached there. They saw accused and another boy who were quarrelling and he did not see anything else.
23 This witness was got declared hostile by the Ld. Addl. PP for the State and was crossexamined. In the crossexamination by the Ld. Addl. PP for the State, the witness admitted that the boy seen by them was crying with pain and the accused was giving blows with stone like object to the said person. The witness further admitted that accused was apprehended by two police officials who came there on motorcycle. He further admitted that on inquiry by police, he came to know that the said boy was killed by the accused. This witness further State Vs Raj Kumar Page No. 13 of 41 14 stated that he could identify stone by which the deceased was killed by the accused. This witness thereafter identified brick Ex. P2 to be the same which was used by the accused in inflicting injuries on the deceased.
24 In crossexamination by the Ld. Defence Counsel for the accused, this witness claimed that he was on duty in the month of February and March 2009 in the said Kothi No. 18. His duty hours were from 12 mid night to 3.00 a.m. (night). Guard Commander Raj Singh was residing in the Guard Room in Kothi No. 18 itself. There were two gates in the park and one was towards Kothi No. 18 There were 10 to 15 big trees in the park. This witness fairly admitted that there was darkness at the place of occurrence. The accused had not constructed any ''jhuggi'' or ''jhopri'' inside the park to stay therein. The accused was having small beddings with him. He never had any conversation with the accused or his wife during his duty for about two months at Kothi No. 18. They used to see the accused inside the park almost daily. The witness denied the suggestion that accused never resided inside the park or that he never sold icecream there. Witness further stated that he did not go inside the park at the time of State Vs Raj Kumar Page No. 14 of 41 15 occurrence. The quarrel had taken place at the spot between two persons. PCR had reached at the spot at about 12.45 a.m. (night). Guard Commander Raj Singh had made telephone call from telephone installed at the security room. He had informed on phone that some sensation was going on inside the park. He could not see due to darkness as to what had happened at the spot. 25 Overall testimony of this witness reveals that accused alongwith his wife and children used to stay inside the park, i.e. at the place of occurrence prior to the incident. There is nothing on record to disbelieve the version of the witness on this aspect. No ulterior motive was assigned to this witness for claiming the accused to be residing with his family inside the park. Presence of this witness at the spot being on duty in the high security area at Kothi No. 18 is quite natural. This independent witness is not imagined to concoct a false story. Since the park in question was at a short distance from the place of duty of this witness, there was every possibility of the witness to have seen the accused residing inside the park alongwith his wife and two children.
26 This witness was the first person to notice sensation State Vs Raj Kumar Page No. 15 of 41 16 inside the park while on duty in front of Kothi No. 18. Conduct of this witness to inform his Guard Commander Raj Singh about the sensation inside the park makes his testimony trustworthy. Since this witness was on official duty in high security area, it was not expected from him to leave his place of duty and to reach inside the park to intervene in any quarrel. This witness categorically identified the accused to be the person who was residing inside the park alongwith his family. He also identified the accused to be person who was seen by him inflicting blows with a stone like object on the deceased. This witness testified about the presence of the deceased and the accused only at the time of occurrence at the spot. No suggestion was put to this witness in the cross examination by the Ld. Counsel for the accused that the accused was not present at the spot at the time of incident. No suggestion was put to this witness, if the accused or his wife and children were present at any other specific place at that time. The testimony of this witness is in consonance with the case of the prosecution. 27 Then comes the material testimony of PW17 HC Raj Singh who was also posted as Head Constable in E Company State Vs Raj Kumar Page No. 16 of 41 17 situated at Gazipur Delhi and was performing his duties as Incharge Guard in Kothi No. 18 Gurdwara Rakabanj Road, allotted to Sh Sita Ram Singh, M P, (Lok Sabha), JD(U), on the intervening night of 22 and 23 March, 2009. He testified before the court that at about 1.00A.M. he was sleeping in the guard room and Santri Girdhari Lal (PW15) came to him and awakened him. He informed him that he had heard some noise and quarrel in the park in front of Kothi No. 18 while performing his duties. The witness further stated that in the said park, one icecream seller used to reside with his family members including his wife and children. The Santri saw the wife of the icecream seller running here and there. He himself reached on the gate of the Kothi No. 18 and saw that icecream seller was giving beatings to someone. This witness further stated that the ice cream seller, who is the accused present before the court, was inflicting blows with a brick on one person near the wall of the church and park. He informed PCR at 100. Two police officials came on motorcycle and apprehended the accused. Police made inquiries from him and recorded his statement on 24.3.2009. The witness identified brick as Ex. P2 to be the same used in the State Vs Raj Kumar Page No. 17 of 41 18 commission of the offence.
28 In the crossexamination by the Ld. Defence Counsel for the accused, this witness stated that he was in service in Delhi since 1997. He remained on duty at Kothi No. 18 for about one month. During his duty there, he was staying in the guard room throughout day and night. Four constables including Santri Girdhari Lal (PW15) were under him. One guard USED TO remain on duty at a time. Ct. Girdhari Lal (PW15) was on duty from 11.00 P.M. TO 2.00A.M. The witness further stated that he had come to know about the presence of the accused in the park about 2 or 3 days prior to the incident. He fairly admitted that he had no conversation with the accused or his wife at any time. He never restrained the accused from staying inside the park. He denied the suggestion that accused or his wife never stayed inside the park. The witness further clarified that there were 30 to 40 big trees inside the park. There was on E electricity pole inside the park. Place of incident was at a distance of about 50 to 60 meters from the gate of the park. The witness denied the suggestion that there was darkness inside the park due to trees. He made telephone call to State Vs Raj Kumar Page No. 18 of 41 19 PCR at 100 at about 1.00 a.m. He had not entered inside the park prior to making telephone call to PCR. He had informed the PCR that a quarrel was going on inside the park and someone was giving beatings to some one. PCR reached at the spot within 2 or 4 minutes after the making of the call. No public witness had gathered at the spot at the time of occurrence. The witness further reasserted the icecream seller was giving beatings to the other person while standing just near him. The witness denied the suggestion that he did not see the occurrence due to darkness. 29 Entire testimony of this witness reveals that no material contradictions have been elicited in the crossexamination of this witness on material aspects. Presence of this witness at the place of duty has not been challenged in the crossexamination. No illwill was at attributed to this witness for falsely alleging presence of the accused alongwith his family members inside the park at the time of incident. This witness was not attached with Delhi Police and had no ulterior purpose to falsely support the IO of this case. This witness was attached with E. Company, RAC, which was deputed for security arrangement of Sh Sita Ram Singh, Member State Vs Raj Kumar Page No. 19 of 41 20 Parliament, Lok Sabha, JD (U). This witness has corroborated the version given by PW15 Ct Girdhari Lal regarding stay of the accused and his family members prior to the incident inside the park. The witness has further corroborated the statement of PW15 Ct. Girdhari Lal that the accused used to sell icecream. This witness categorically claimed to have seen the accused inflicting injuries with brick Ex. P2 on the person of the deceased. Earlier this witness had thought that the accused was killing a snake and had reached at gate of Kothi No. 18. He saw that accused, icecream seller was giving beatings to someone. He further saw that the accused was inflicting blows with a brick on one person near the wall of church and park. Conduct of this witness after seeing the incident was quite natural as he informed PCR at 100. This witness also corroborated the version given by PW15 Ct. Girdhari Lal that after the information was given to the PCR at 100, two police officials on motorcycle reached at the spot and apprehended the accused. No suggestion was put to this witness in the cross examination as to from whereelse the accused was arrested. Nothing was suggested to him as to what happened to the wife and State Vs Raj Kumar Page No. 20 of 41 21 children of the accused. No suggestion was put to this witness in the crossexamination if there were some other vagabonds inside the park or that they had given beatings to the deceased as a result of which deceased had died. In the absence of any discrepancies, there is nothing on record to discard the positive testimony of this witness.
30 Now comes the testimony of PW9 ASI Kapoor Singh, who had reached at the spot on getting information about the incident. He also testified that he was present near Gurdwara Rakabganj regarding inquiry of DD No. 24A with Ct. Sanjay. At the same time, Duty Officer of PS Parliament Street had given him information through wireless that voice of "bachaobachao" was coming from near Kothis No. 18 near Church, Rakabganj Road, New Delhi and people were running here and there. He alongwith Ct. Sanjay reached in front of Kothi No. 18 on official motorcycle No. DL1SN3775. He saw that in the park one lady was weeping and one fatty person holding brick in his hand was beating a thin person. He captured that fatty person, whose name was ascertained as Raj Kumar @ Rajesh Kumar Pandit, the accused present before the State Vs Raj Kumar Page No. 21 of 41 22 court who was giving beatings to the thin person and who had expired due to the injuries inflicted by him. In the meanwhile, SI Subash from PP North Avenue also reached there and he handed over the custody of the accused to him.
31 In the crossexamination, the witness explained that he received DD No. 24A at about 10.45 PM. In that regard, he had gone to RML hospital alongwith Ct. Sanjay on official motorcycle and remained there for about half an hour. It took about five minutes on motorcycle to reach at Kothi No. 18 from the place where he received the wireless message. He had seen the lady weeping from a distance of about 1015 ft. after entering inside the park. Only the lady, the accused and two children of the said lady were present inside the park. Articles belonging to the accused and his family members were also there in the park. These were the clothes of the accused which wee used for wearing and sleeping. There were no household articles at the spot. The accused had tried to flee away from the spot. The witness volunteered to add that the wife of the accused was asking him to run away immediately as no offence was committed by them. The accused was wearing half "T" shirt of State Vs Raj Kumar Page No. 22 of 41 23 cocacola colour, one burmoda nicker and a woolen cap. When they reached the deceased, he was motionless and was not uttering anything. There was lot of blood flowing near the dead body. The witness further asserted in the crossexamination that accused was seen by him giving beatings to the deceased by standing and bending.
32 Scrutinizing the entire testimony of this witness, it reveals that this witness has supported the prosecution and has corroborated the version given by two independent witnesses PW15 Ct. Girdhari and PW17 HC Raj Singh. This witness also testified about the presence of the accused alongwith his family members inside the park at the time of incident. Since this witness had received information regarding the incident from duty officer PS Parliament Street, presence of the witness at the spot alongwith Ct. Sanjay was quite possible. Again, no motive was assigned to this witness for falsely implicating the accused. Nothing was suggested to this witness in the crossexamination if there was anybody else in the park besides the accused and his family members to point an accusing finger against those strangers to have inflicted injuries on State Vs Raj Kumar Page No. 23 of 41 24 the person of the deceased. No suggestion was put to the witness in the crossexamination if the accused had come on pilgrimage and had stayed at Gurdwara Rakabganj. This official witness is not imagined to falsely concoct a story of his witnessing the accused inflicting injuries on the person of the deceased. 33 PW12 Ct. Sanjay has supplemented the version given by PW9 ASI Kapoor Singh as this witness had accompanied him at the spot. He also testified that when they reached in front of Kothi No. 18, they saw a man hitting another man with a brick. ASI Kapoor Singh apprehended the person who was hitting with the brick with his help. The injured was dead. After sometime, SI Subhash Chand reached there and recorded statement of ASI Kapoor Singh. In the crossexamination, he stated that prior to this case, he had accompanied ASI Kapoor Singh to RML hospital in some other case and had stayed there for about half an hour. He did not notice any other person in the park except as stated in his statement. ASI Kapoor Singh entered the park first and he was 3 or 4 ft. ahead of him. They first saw the accused hitting deceased from a distance of 20 to 25 meters. The accused was hitting the State Vs Raj Kumar Page No. 24 of 41 25 deceased after bending down over the deceased. The accused was wearing blue and red "T" shirt and read colour long nicker and a cap.
34 Again, the version given by this witness inspires confidence as he has corroborated statement of PW9 ASI Kapoor Singh without any material inconsistency. This witness had taken rukka to the police station. Presence of this witness at the spot has not been challenged in the crossexamination. 35 From the testimonies of these witnesses referred above, it stands established that accused alongwith his family members used to stay inside the park prior to the incident. All these witnesses have testified on this aspect without any discrepancies. Photographs Ex. PW11/116 proved on record by PW11 Ct Ram Niwas also lend credence to the statements given by these witnesses. Sundry articles lying inside the park have been depicted in the photographs taken at the spot by PW11 Ct Ram Niwas. In the crossexamination, this witness stated that when they reached at the spot, one lady with one child was also present at the spot. In the crossexamination nothing was suggested to this witness if these State Vs Raj Kumar Page No. 25 of 41 26 photographs were fabricated.
36 Suggestion was put by the ld. Defence Counsel for the accused to PW1 SI Subhash Chand that accused was on pilgrimage with his wife on 20.3.2009 or that he was residing in Rakabganj Gurdwara or that at about 11.30 pm he heard some noise of quarrel or that he informed the security guard of Kothi No. 18 regarding the quarrel and beatings given to the deceased by some unknown persons. This suggestion was denied by PW1 SI Subhash Chand. This suggestion rather shows that version given by the prosecution witnesses has been accepted by the accused. He admitted his presence near the place of occurrence though he suggested that he was residing in Rakabganj Gurdwara. No evidence on this aspect was adduced by the accused if he was residing in Gurdwara Rakabganj. He also admitted by putting the suggestion that at about 11.30 PM when the incident took place, he had informed security guard of Kothi No. 18. However, when security guards of Kothi No. 18, i.e. PW15 Ct Girdhari Lal and PW17 HC Raj Singh appeared before the court, nothing was suggested to them if the accused had met them at 11.30 PM or had State Vs Raj Kumar Page No. 26 of 41 27 informed them about the quarrel or beating given to the deceased by some unknown persons. The accused himself did not intervene when allegedly the deceased was being given beatings by some unknown persons. The accused did not suggest as to how many persons were there inside the park and how they had given beatings. This version of the accused does not inspire confidence. The accused did not inform the police about the alleged beatings given to the deceased by someone else.
37 Crucial witness to support the accused on this defence put to PW1 SI Subhash Chand was wife and children of the accused. However, for the reasons best known to the accused, none of them came forward to support the accused. Accused failed to explain as to why and for what reasons his wife and children did not come forward to substantiate the story put by him in the cross examination of PW1 SI Subhash Chand. Rather during the course of final arguments, the accused was specifically inquired about the whereabouts of his wife and children after the incident. The accused fairly stated that none had contacted him since the incident despite his writing number of letters. Adverse inference is to be drawn State Vs Raj Kumar Page No. 27 of 41 28 against the accused for withholding material defence witnesses who could have thrown light on the defence set up by him. 38 During investigation the police rather cited PW20 Ms Deepti Bhalero from Gwalior as a witness to whom the accused was purportedly related. However, this witness did not support the prosecution and categorically denied to have any acquaintance with the accused. She rather did not identify the accused present before the court and stated that she had no relation whatsoever with him. She did not know anything about him. This witness was got declared hostile by the Ld. Addl. PP for the State and was cross examined. In the crossexamination by the Ld. Addl. PP for the State, she expressed her ignorance if name of grand father of her husband was Mahadev Bhalerao or that he was a lawyer. She also expressed her ignorance if house No. 16, Mulla Ji Ki Sarai, Jeewaji Ganj, Lashkar, Gwalior, MP was in the name of Mahadev Bhalerao. She further expressed her ignorance if her grand fatherinlaw had two sons or that Laxman Mahadev Bhalerao was a teacher in a school or that he was having three children out of whom one was accused Raj Kumar, present before the court. She further denied if State Vs Raj Kumar Page No. 28 of 41 29 accused had two sisters namely Meena, who got married in the year 1988 and younger one was Kiran with whom the accused had married. She denied the contents of the statement mark PW20/A to have been made to the police.
39 All these details put to the witness in the statement mark Ex. PW20/A are not expected to be fabricated by the IO. It seems that this witness is deliberately concealing material information and expressing her ignorance to identify the accused. The accused on the other hand did not bother to examine any witness from his native place or from the place of his job to establish that he was on pilgrimage on 20.3.2009 or that prior to taking pilgrimage, he was residing at a particular address or that he was doing a particular job at a particular place. All these facts were in the special knowledge of the accused which he has failed to explain or prove. At the time of his apprehension, no documentary evidence like tickets etc were found to show that the accused was on pilgrimage tour prior to his apprehension in this case. Only a meager amount of Rs. 75/ was recovered in his personal search. No substantial article showing the accused on journey has been recovered from the possession of the State Vs Raj Kumar Page No. 29 of 41 30 accused. The plea taken by the accused, thus, inspires no confidence. Nothing has been brought on record by the accused as to how and under what circumstances he happened to stay inside the park. The positive testimonies of the prosecution witnesses that he alongwith his wife and children used to stay inside the park or that he used to sell icecream can't be discarded in the absence of any evidence to the contrary.
(3) Other circumstantial evidence 40 Oral testimony of the prosecution witnesses is in
consonance with the medical evidence on record. There is no major deviation between the oral testimony of the prosecution witnesses and the medical evidence produced on record pertaining to the deceased where number of injuries with weapons of offence recovered in this case were found on the person of the deceased. 41 Kiran wife of the accused was got medically examined. PW2 Dr. Vinit Pathak, prepared her MLC which is Ex. PW2/C. Kiran was taken to RML hospital at about 3.15 P.M. It shows that Kiran used to remain with the accused at the time of incident. She did not appear at any time before the court to support the accused and to State Vs Raj Kumar Page No. 30 of 41 31 falsify the case of the prosecution. Allegations were leveled by the prosecution as reflected in the disclosure statement Ex. PW1/F purportedly made by the accused wherein Kiran was stated to be the ''sister'' of the accused with whom accused had married. There is, however, no evidence on record to substantiate this fact recorded in the disclosure statement and can't be believed. Accused also remained mum during his examination u/s 313 CrPC to reveal as to who Kiran was and who were her parents and where she used to reside prior to her marriage.
42 FSL reports also corroborate the version given by the prosecution. Number of exhibits were collected during investigation by the police and were sent to FSL. IO collected FSL reports Ex. PW21/C,PW21/D and Ex. PW21/E. On perusal of FSL report Ex. PW21/C and Ex. PW21/D, it reveals that blood of human origin was detected on the "T" shirt Ex. P4 of the accused which he was wearing at the time of occurrence. The accused did not deny that he was not wearing "T" shirt Ex.P4 at the time of incident. Accused failed to explain as to how and under what circumstances human blood happened to be there on his "T" shirt.
State Vs Raj Kumar Page No. 31 of 41 32 43 PW18 T R Fernandey, Executive Engineer testified before the court that he had given reply in response to the letter of the IO Ex. PW18/A regarding availability of the light on Gurdwara Rakabganj Road and in the immediate vicinity of the park, i.e. Church Lane and near Mazar. All the lights were properly working on the intervening night of 22 and 23 March, 2009 between 11.00PM to 5.00 AM. PW 19 N K Tanwar, also testified that there was no electricity complaint lodged in the complaint register during the given period between 11.00 PM to 5.00AM on the intervening night of 22 and 23 March, 2009. His detailed report on this aspect is Ex. PW19/A. The testimonies of these official witnesses reveal that prosecution witnesses had an opportunity to see the accused inflicting injuries with brick on the person of deceased as testified by them.
44 Circumstance of last seen is very crucial in this case. At the place of occurrence, where dead body of deceased was found, only the accused along with his wife was found present. There is nothing on record to show if at that time any other outsider/stranger was also present at or near the place of occurrence. Accused was State Vs Raj Kumar Page No. 32 of 41 33 apprehended at the spot near the dead body of deceased. The defence taken by the accused in his statement recorded u/s 313 CrPC, was never put to the material prosecution witnesses who had seen him inflicting injuries with brick on the person of deceased. Nothing was suggested to these prosecution witnesses if any stranger was present at the spot or that he (stranger) had run away from the place of incident after the occurrence. 45 It is true that prosecution has failed to prove motive of the accused to commit murder of the deceased but that aspect is not fatal to the case of the prosecution. Motive for doing a criminal act is generally a difficult area for prosecution. One can not normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Sometimes, motive is surrounded in the mystery and it is very difficult to prove. If, however, the evidence of the eye witness is credit worthy and can be believed, the question whether there is any motive or not becomes wholly irrelevant. Only in the disclosure statement of the accused, there is mention that deceased had tried to outrage modesty of his wife. Though there is no independent evidence on this aspect, possibility of the deceased State Vs Raj Kumar Page No. 33 of 41 34 to outrage modesty of the wife of the accused can't be ruled out, as there was no occasion for the deceased to remain present inside the park at odd hours alone particularly when he was found to have consumed liquor. Motive assumes greater significance only in circumstantial evidence.
(4) CONCLUSION 46 In the light of the above discussion, I am of the
considered view that the prosecution has established beyond doubt that accused inflicted fatal injuries on the person of the deceased. It has further been established that the accused intended to commit murder of the deceased as he repeatedly inflicted injuries on various body organs of the deceased. The deceased had an instant death as the injuries inflicted to him were on his vital organs. In his statement recorded u/s 313 CrPC, the accused did not give plausible explanation to the incriminating circumstances appearing against him. He failed to produce any evidence in defence to show his innocence and to falsify the positive testimonies of the prosecution witnesses. He failed to explain if he was leading a normal life at Gwalior prior to his visit alongwith his wife and State Vs Raj Kumar Page No. 34 of 41 35 children to Delhi. Accused also failed to state if he was doing any job or business to maintain his family at any particular place. Nothing has come on record to show if the children of the accused used to study at any particular school prior to the incident. All these circumstances lend credence to the story presented by the prosecution that the accused was not leading a normal life and was staying alongwith his wife and children inside the park prior to the incident. No family member of the accused including his wife and children came forward to support him or even to meet him after his apprehension in this case.
47 Minor contradictions and discrepancies in the testimonies of the prosecution witnesses are not fatal to the case of the prosecution as they do not go to the root of the case. 48 In view of the above discussion, accused Raj Kumar @ Rajesh Pandit is held guilty and convicted for commission of offence punishable u/s 302 IPC.
Announced in open court dated 06/09/2010 State Vs Raj Kumar Page No. 35 of 41 36 ( S.P.GARG ) DJIV / ND State Vs Raj Kumar Page No. 36 of 41 37 IN THE COURT OF SHRI S.P.GARG, DISTRICT JUDGE IV NEW DELHI ID No.02403R017632009 S.C.No. 40/10 State vs. Raj Kumar @ Rajesh Pandit S/o Sh Laxman Mahadev Bhalerao R/o 63, Rama Apartment, Jari Patka No.1 PhalkeBazar,Lasker Gwalior,MP (Presently lodged in J.C) FIR No.52/2009 P.S. Parliament Street U/s 302 IPC ORDER ON SENTENCE 1 I have heard the convict Raj Kumar @ Rajesh Pandit on the point of sentence.
2 Convict has prayed to take lenient view as he is not a previous convict. He is in J.C from the very inception. He is the only State Vs Raj Kumar Page No. 37 of 41 38 bread earner of his family.
3 I have considered the prayer of the convict and have gone through the file.
4 On perusal of the file, it reveals that the offence committed by the convict is very serious whereby he committed murder of a young boy without any apparent provocation by inflicting repeated injuries on his person with stone.
5 At the same time, I am of the view that it is not one of the rarest of rare cases where extreme penalty of death is to be awarded to the convict. He is not a previous convict. He is not involved in any criminal activity. He is the only bread earner of his family. He had not enmity with the deceased prior to the incident. He did not commit his murder for any monetary gain. 6 Considering all the facts and circumstances of the case, the convict Raj Kumar @ Rajesh Pandit is sentenced to undergo imprisonment for life with fine of Rs. 1,000/ and in default of payment of fine to undergo RI for one month for the commission of offence u/s 302 IPC.
7 Copy of the judgment be given free of cost to the convict. State Vs Raj Kumar Page No. 38 of 41 39 Ahlmad is directed to supply copies of the charge, statements of the witnesses etc., to the convict to enable him to file appeal before Hon'ble High Court.
8. File be consigned to the record room.
Announced in open court
on dated 10.09.2010 (S.P.GARG)
DJIV/ND
State Vs Raj Kumar Page No. 39 of 41
40
IN THE COURT OF SHRI S.P.GARG, DISTRICT JUDGE IV NEW DELHI ID No.02403R017632009 S.C.No. 40/10 State vs. Raj Kumar @ Rajesh Pandit S/o Sh Laxman Mahadev Bhalerao R/o 63, Rama Apartment, Jari Patka No.1 PhalkeBazar,Lasker Gwalior,MP (Presently lodged in J.C) FIR No.52/2009 P.S. Parliament Street U/s 302 IPC 10.9.2010 Present: Addl PP for the State Convict Raj Kumar @ Rajesh Pandit produced from J.C Ld. Counsel for the convict Arguments on the point of sentence heard.
Case decided vide separate order.
State Vs Raj Kumar Page No. 40 of 41 41 Copy of the judgment be given free of cost to the convict. Ahlmad is directed to supply the copies of the charge, statements of the witnesses etc., to the convict. File be consigned to the record room.
(S.P.GARG) DJIV/ND/10.9.2010 State Vs Raj Kumar Page No. 41 of 41