Delhi District Court
State vs . Rajbir @ Raju Khurana 2018.08.30 on 28 August, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
Digitally signed
FIR No. 564/06 by MANISH
PS : Okhla Industrial Area (Crime Branch) KHURANA
U/s : 304A IPC
MANISH
Date:
State Vs. Rajbir @ Raju KHURANA 2018.08.30
Unique ID No. 93629/2016 14:21:51
+0530
Date of institution of case : 14.09.2015
Date of reserving the judgment : 18.07.2018
Date of pronouncement of judgment : 28.08.2018
J U D G M E N T
1. S. No. of the Case : 79/05/15
2. Date of Commission of Offence : Between 30.06.2006 to
02.07.2006
3. Name of the complainant : SI Manish Joshi
No. D992, I/C PPOIA,
PhaseII, New Delhi
4. Name, parentage & address of accused : Rajbir @ Raju
S/o Sh. Har Prasad
R/o Jhuggi No. D279/1,
Sanjay Colony,
Okhla PhaseII, Delhi
5. Offence complained of : u/s 304A IPC
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that between 30.06.2006 to 02.07.2006 at the pavement situated between Y13, OIA PhaseII, New Delhi and A121, FIR No. 564/06 State Vs. Rajbir @ Raju Page 1 of 15 OIA PhaseII, New Delhi within the jurisdiction of PS OIA Crime Branch, the accused acted negligently while keeping gunny bags/sacks of cloth pieces outside his godown and he failed to take due precautions to prevent any accident or injury to any person coming to his godown where the heap of gunny bags were kept by him under his control and due to which Master Pankaj @ Rahul, aged about 2 ½ years s/o Sh. Ram Kishan came under heap of the gunny bags and died and thus the accused caused death of Master Pankaj @ Rahul not amounting to culpable homicide by the said negligent act and thereby accused committed an offence punishable u/s 304A IPC. FIR was registered and after investigation, chargesheet was filed against the accused Rajbir @ Raju for the offence u/s 304A IPC.
2. Cognizance of the offence was taken and the accused was summoned, copies of chargesheet were supplied and thereafter, charge was framed against the accused for the offence punishable u/s 304A IPC vide order dated 14.09.2016 to which the accused pleaded not guilty and claimed trial.
3. During admission/denial of the documents, accused admitted the factum of registration of present FIR Ex. A1, DD no. 12 dated 02.07.2006, PP OIA, PHII, PSOIA, as Ex. A2; DD no.26 dated 30.06.2006, PPOIA, PH II, PSOIA, as Ex. A3; DD no. 25 dated 01.07.2006, PPOIA, PHII, PS OIA, as Ex. A4; DD no. 24A dated 26.02.2005, PPOIA, PHII, PSOIA, as Ex. A5;PCR Form1 dated 02.07.2006 as Ex. A6 (running into 3 pages); missing person form along with WT message as Ex. A7 (2 pages); report of mobile crime team having serial no.541/2006 as Ex. A8; the death report dated 02.07.2006 as Ex.A9; the dead body identification memo by Har Kishan as Ex.A10; the request for conduction of postmortem as Ex. A11; the PM report Ex. PW6/A;subsequent opinion of FIR No. 564/06 State Vs. Rajbir @ Raju Page 2 of 15 Dr. R.K. Sharma Ex. PW6/B; the FSL report bearing no. FSL2006/B 2502 dated 27.02.2007 and FSL report bearing no. FSL2006/B2725 dated 27.02.2007 in the present case as Ex. A12 (colly); the lie detection report dated 03.01.2007 as Ex. A13; the subsequent opinion of Dr. Chitranjan Behra dated 18.04.2013 as Ex.A14; the subsequent opinion report of Maulana Azad Medical College and Lok Nayak Hospital New Delhi dated 01.08.2013 as Ex. A15 and its further subsequent opinion dated 11.02.2014 as Ex. A16; seizure proceedings by ct. Beer Singh from AIIMS Mortuary as Ex.A17, seizure of viscera by ct. Beer Singh as Ex A 18, factum of registration of DD no. 23 dated 30.06.2006 PP Okhla Phase II, PS Okhla as Ex.A19, photographs of the spot as A20 and complaint titled as Raju Vs. Ram Kishan and Ors dated 15.01.2007 as Ex.A21 vide his statement recorded u/s 294 Cr.PC.
4. In order to prove its case, prosecution examined 16 witnesses.
5. PW1 Sh. Ram Krishan deposed that he had been residing at H. No. Y 13, Okhla PhaseII, New Delhi with his family for last 22 years and he used to run a transportation business. He further stated that on 30.06.2006 his son Pankaj (since deceased) (then aged about 2 ½ years) went missing from his house at around 5.00/5.30 pm. He further deposed that he alongwith his family members searched Pankaj in the nearby areas but they could not find him. He further deposed that thereafter he lodged the missing report of his son in the police post Okhla, PhaseIII at around 9.30 pm on the same day. He further stated that accused Rajbir @ Raju also joined his neighbourers in the search of his son. He further stated that a scuffle had occurred 23 months prior to the abovesaid incident between accused Rajbir @ Raju and his (complainant's) nephew Niranjan in which he (complainant) intervened upon which accused threatened to teach him a lesson in future and accused used the words FIR No. 564/06 State Vs. Rajbir @ Raju Page 3 of 15 "teri zindagi tabah kar dunga". He further stated that therefore, he became suspicious that accused might be involved in the missing of his son. He further stated that on the next day i.e 01.07.2006, he again went to police chowki Okhla PhaseII and told the Incharge of the said police post about his suspicion regarding the involvement of accused Rajbir @ Raju but police did not take any action against accused Rajbir @ Raju. He further stated that after his insistence police called Rajbir @ Raju in the Police Post and in the Police Post he requested accused Rajbir @ Raju to return his son Rahul. He further stated that upon this accused Rajbir @ Raju told him that he should not have raised suspicion on him (accused). He further stated that accused also told him that after his abovesaid complaint against him (accused), he (complainant) would only get dead body of his son. He further stated that on the next day i.e 02.07.2006 in the afternoon, he came to know that dead body of his son was found lying in the rented piece of land of accused Rajbir @ Raju where accused used to keep bundles of waste pieces of cloths. He further stated that he identified dead body of his son at the spot and at the mortuary of AIIMS Hospital. He stated that IO prepared identification memo of dead body of his son Ex.PW1/A and later on IO recovered slipper of his son, wooden carat and pieces of black tirpal (covering carpet) from the spot where dead body of his son was found which were seized vide seizure memos Ex.PW1/B and Ex.PW1/C and Ex.PW1/D respectively after duly sealing with the seal of "MKT". This witness was not cross examined by Ld defence counsel.
6. PW2 Mahipal Singh deposed that he was working as junk dealer of cloth pieces and on 30.06.2005 (as deposed by the witness) at about 5.30 pm his neighbour Ram Kishan informed him that his son Pankaj had been missing and he helped Ram Kishan to search his son but his son FIR No. 564/06 State Vs. Rajbir @ Raju Page 4 of 15 could not be found. He further deposed that on 02.07.2006 he came to know that the dead body of Pankaj was lying under the sacks of cloth pieces near his plot no. Y13, Sanjay Colony and he reached there and police had also reached there and from the said place police seized one black coloured plastic panni, one black colour cloth sheet lying on the dead body of Pankaj having some stains, two plastic sacks and the said articles were seized after sealing the same in plastic bag vide seizure memo Ex.PW2/A. During his cross examination by Ld defence counsel this witness stated that complainant Ram Kishan was his brother in distant relation and that the place where the accused Rajbir @ Raju was working was rented one and it was owned by Kamlesh. He was not aware as to whether any quarrel took place between the complainant and the accused prior to the incident. He stated that plot no. Y13 measured about 200 sq. yards and it was occupied by him and 56 other tenants who all worked there as junk dealer. He stated that they all including accused Raju used to keep their sacks of junk cloth pieces in the same manner. He admitted that accused Raju had filed a complaint against him and Ram Kishan regarding theft of his articles.
7. PW3 Bhagwat Prasad deposed that he used to deal in the business of scrap dealer of cloth pieces and complainant Ram Kishan was his neighbour. He stated that on 30.06.2006 at about 5.00 pm son of his neighbour Ram Kishan namely Master Pankaj went missing and he alongwith other persons from the locality searched Pankaj but he could not be traced. He stated that on 02.07.2016 he came to know that dead body of Pankaj was lying under the sacks of cotton pieces where many persons of their locality used to keep their sacks. He stated that he informed about the said fact to Ram Kishan and also made the PCR call upon which Ram Kishan showed his suspicion on accused Rajbir @ Raju FIR No. 564/06 State Vs. Rajbir @ Raju Page 5 of 15 in the murder of his son. This witness was cross examined by Ld defence counsel.
8. PW4 Vaijyanti Devi deposed that in the year 2005 she used to run a small shop near Y13 and on 30.06.2006 two children of his neighbour Ram Kishan namely Geeta and Pankaj came to his shop for buying petties and thereafter they left her shop and remained playing nearby till 5/5.30 pm and after some time Ram Kishan and his wife came to his shop while searching Pankaj. She stated that she had not seen any person taking Pankaj with him and that she had not seen Pankaj going with anybody. This witness was not cross examined by Ld defence counsel.
9. PW5 Sonu deposed that he used to run a tea stall in front of A120, Okhla PhaseII, Delhi and on the opposite side of the road jhuggies of Y 13, Okhla PhaseII were situated. He stated that on 30.06.2006 at about 5.00 pm he saw son of Ram Kishan namely Pankaj playing near rehdi of Vaijyanti and thereafter he went to godown of accused Raju to ask for the balance money of tea sold to him upon which he told that he would pay him tomorrow. He stated that after 12 hours he came to know that Master Pankaj went missing and after about two days dead body of Master Pankaj was found under the sacks of cloth pieces kept by accused Raju, complainant Ram Kishan, Mahipal and one or two more persons. During his cross examination he deposed that in Y13, Okhla PhaseII 57 various persons were working as junk dealers.
10. PW6 Dr. R K Sharma, ExAdditional Professor, Department of Forensic Medicine, AIIMS deposed that on 30.07.2006 he conducted the postmortem on the dead body of Pankaj @ Rahul aged about 2 ½ years and prepared his detailed PM Report no. 900/2006 Ex.PW6/A. He stated that on 20.03.2007 on request of the IO he gave the subsequent opinion on the PM Report which is Ex.PW6/B in which he opined the FIR No. 564/06 State Vs. Rajbir @ Raju Page 6 of 15 cause of death of master Pankaj as Traumatic Asphyxia caused due to pressure on chest, mouth and nostril which was antemortem in nature.
11. PW7 Vimilesh deposed that he gave her godown on rent to Raju in the year 2005 who used to keep bundle of cloths outside the godown when there was no place left in the godown. She stated that she asked him not to keep the bundles outside the godown but he did not pay any attention. She stated that he kept bundle of cloths in such a manner that it could fell down at any time. She stated that on 02.07.2006 dead body of child Pankaj was found beneath the bundle of cloths. During her cross examination she stated that 23 godowns were existing at the place of incident and she admitted that at the time of incident goods/bundles of complainant Ram Kishan were also lying at the spot. She could not tell as to how the death of deceased child Pankaj took place.
12. PW8 Keshav Dev deposed that in the year 2006 he used to work as junk dealer of cloth pieces in Sanjay Colony, Okhla PhaseII, Delhi and at that time complainant Ram Kishan also used to work as junk dealer adjacent to his godown. He stated that at the night time on 30.06.2006 he received the phone call from the brother of Ram Kishan informing him that son of Ram Kishan namely Master Pankaj had been missing. He stated that on the next day he alongwith Ram Kishan and several other person searched for Pankaj but he could not be found and on 02.07.2006 while he and Babu Lal were walking near the house of Ram Kishan he noticed that on the heap of sacks of cloth pieces some bees were buzzing and he removed tirpal covered over it and he found dead body of a child under sacks of cloth pieces and thereafter he called Ram Kishan and his family. He stated that the said sacks of cloth pieces under which the body of Pankaj was found belonged to accused Rajbir @ Raju. He stated that accused Rajbir @ Raju had kept heap of sacks of cloth pieces till the considerable FIR No. 564/06 State Vs. Rajbir @ Raju Page 7 of 15 height which was dangerous and he had earlier objected him but he did not pay any attention. During his cross examination he deposed that he had not seen accused Raju while keeping the sacks of cloth pieces. He stated that complainant Ram Kishan is a native of his village and he had good relations with him. He also admitted that the Crime Branch officials recorded his statement on 27.07.2015 i.e about 9 years after the incident.
13. PW9 Inspector Prakash Chand deposed that on 02.07.2006 he was handed over the investigation of the present case and he reached at the spot and prepared the site plan Ex.PW9/A and got the postmortem of the dead body of Master Pankaj conducted. He stated that the mobile crime team had already reached at the spot on 02.07.2006 before he reached there. He stated that he prepared inquest report Ex.A9 and the request letter for postmortem Ex.A11. He stated that he seized cloth, blood, swab, visra of deceased Ex.A17 and Ex.A18. He stated that on 07.07.2006 he again visited the spot and seized one black plastic sheet, two empty white sacks which were seized vide seizure memo Ex.PW2/A and thereafter the investigation was transferred to Crime Branch, Delhi Police. This witness was cross examined by Ld defence counsel during which he stated that the dead body of deceased was recovered from the pile of cloths of complainant Ram Kishan. Ld APP for the State sought permission to cross examine this witness as he was resiling from the prosecution case. During his cross examination by Ld APP for the State he stated that he inquired at the spot and came to know that said heap of jute bags under which the dead body of deceased boy was found belonged to complainant Ram Kishan. He denied that the heap of jute bags containing old cloths under which the dead body of deceased Pankaj was found did not belong to the complainant and he denied that the said heap of jute bags belonged to accused Rajbir @ Raju. He denied that he was deposing falsely.
FIR No. 564/06 State Vs. Rajbir @ Raju Page 8 of 1514. PW10 Inspector Akshay Kumar deposed that he was handed over the further investigation of this case and he inquired PW Sonu, Vaijyanti, Bhagwat Prasad, ASI Shriram and recorded their statement u/s 161 Cr.PC. He stated that he also obtained subsequent opinion dated 18.04.2013 Ex.A14 regarding death of deceased Pankaj and the opinions of Medical Board dated 01.08.2013 and 11.02.2014 Ex.A15 and Ex.A16 and thereafter he was transferred from Crime Branch. This witness was not cross examined by Ld defence counsel.
15. PW11 ACP Mahesh Tholia deposed that on 02.08.2006 he was handed over investigation of this case and on 07.08.2006 he visited the spot from where under the wooden carat one pair of pink coloured slippers were seized vide seizure memo Ex.PW1/B which were identified by the complainant Ram Kishan. He stated that he got the videography and photography of the stop conducted and seized the wooden carat and pieces of black colour tirpal vide seizure memos Ex.PW1/C and Ex.PW1/D and sent the exhibits to FSL Rohini. He stated that thereafter the further investigation was handed over to Inspector Ajay Sharma. This witness was cross examined by Ld defence counsel during which he denied that he never joined the investigation or that he never seized anything.
16. PW12 ASI Surender deposed that on 27.07.2006 at the instruction of IO he took one sealed pullanda of visra, one sealed envelop and sample seal of Department of Forensic Medicines AIIMS alongwith two sealed pullandas sealed with the seal of PC vide RC No. 193/21 dated 27.07.2006 and got the same deposited in FSL Rohini. This witness was not cross examined by Ld defence counsel.
17. PW13 ASI Hashim Khan deposed that on 01.07.2006 he was marked with investigation of DD No. 23 and DD No. 26 both dated 30.06.2006 regarding the missing of Master Pankaj and he searched him and took FIR No. 564/06 State Vs. Rajbir @ Raju Page 9 of 15 appropriate steps but could not find any clue of him and thereafter, he recorded DD No. 25 dated 01.07.2006. This witness was not cross examined by Ld defence counsel.
18. PW14 Inspector Manish Joshi deposed that on 02.07.2006 he was posted as SI/Incharge, PP Okhla PhaseII, PS Okhla Industrial Area and a DD No. 23 dated 30.06.2006 regarding missing of Master Pankaj was recorded in his police post which was being investigated by HC Pradeep and thereafter by HC Hashim Khan. He stated that on 02.07.2006 an information was received vide DD No. 12 regarding the recovery of one dead body between Y13 and A121, Okhla PhaseII, Delhi upon which he alongwith staff reached at the spot where father of the deceased namely Ram Kishan was met who identified the dead body of his son Pankaj aged about 2 ½ years which was found lying between sacks of junk/old cloths at the abovementioned place. He stated that he prepared the rukka u/s 302 IPC Ex.PW14/A and sent for registration of the FIR and after registration of FIR the investigation was handed over to Inspector Prakash Chand, the then Addl. SHO. During his cross examination by Ld defence counsel he could not tell as to whose goods/scrap was lying outside the godown from where the dead body of the child was recovered. He stated that the complainant was also doing the business as a scrap dealer. He admitted that the dead body of the child was found on the side of the road which was a government land.
19. PW15 Inspector Baljeet Singh deposed that on 25.11.2014 he was handed over further investigation of this case and during the course of investigation he studied the case file, evaluated all the evidence available on file, inspected the spot, examined the witness namely Sonu, Keshav Dass and Bimla and recorded their statements u/s 161 Cr.PC. He stated that he also examined complainant Ram Kishan and the accused Raju in FIR No. 564/06 State Vs. Rajbir @ Raju Page 10 of 15 this case and thereafter, he was transferred from PS Crime Branch to PS Vikaspuri. This witness was not cross examined by Ld defence counsel.
20. PW16 Surender Singh Dalal deposed that on 08.08.2015 he was posted as Inspector at Northern Range Crime Branch, Sector18, Rohini and he was handed over further investigation of this case and he went through the case file. He stated that the investigation was already completed by the previous IOs, therefore, he prepared the chargesheet against accused Rajbir @ Raju and filed in the Court. This witness was not cross examined by Ld defence counsel.
21. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused to which he denied in its entirety and claimed innocence. He further stated that he was falsely implicated and that PWs are interested witnesses. No evidence was led by the accused in his defence.
22. I have heard the Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
23. Allegations against the accused are that between 30.06.2006 to 02.07.2006 at the pavement situated between Y13, OIA PhaseII, New Delhi and A121, OIA PhaseII, New Delhi, the accused acted negligently while keeping gunny bags/sacks of cloth pieces outside his godown and he failed to take due precautions to prevent any accident or injury to any person coming to his godown where the heap of gunny bags were kept by him under his control and due to which Master Pankaj @ Rahul, aged about 2 ½ years s/o Sh. Ram Kishan came under heap of the gunny bags and died and thus the accused caused death of Master Pankaj @ Rahul not amounting to culpable homicide by the said negligent act and thereby accused committed an offence punishable u/s 304A IPC.
FIR No. 564/06 State Vs. Rajbir @ Raju Page 11 of 1524. In the case in hand, the prosecution has alleged that the accused Rajbir @ Raju who was engaged in the business of junk dealer of cloth pieces kept the gunny bags belonging to him outside his godown at Y13, Okhla Industrial Area PhaseII, Delhi in a rash and negligent manner and that the boy Master Pankaj came under the heap of said gunny bag and died.
25. Section 304A IPC provides the punishment for causing death by negligence and it provides that whoever causes 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.
26. Therefore, for securing conviction u/s 304A IPC, the prosecution is required to prove that the death of a person was "caused" by doing any rash and negligent act by the accused. There has to be proximity between cause of death and rash and negligent act committed and the rash and negligent act of the accused must be the proximate cause of death of the deceased.
27. In the case in hand, the prosecution has examined as many as 16 witnesses to prove the allegations. PW1 Ram Kishan is the complainant and father of deceased Pankaj who deposed that on 30.06.2006 his son Pankaj went missing from his house and he came to know on 02.07.2006 that the dead body of his son had been recovered from the rented piece of land of accused Rajbir @ Raju where the accused used to keep bundles of waste pieces of cloths. PW1 was not present at the spot when the dead body was recovered at the spot and he did not depose anything to prove that death of Master Pankaj was caused by the rash and negligent act of accused Rajbir @ Raju. He deposed that he had a scuffle 23 months prior to the date of incident with accused Rajbir @ Raju and he had an apprehension/suspicion that accused Rajbir @ Raju might be involved in FIR No. 564/06 State Vs. Rajbir @ Raju Page 12 of 15 the missing of his son Pankaj. He is the witness to the effect that the dead body of deceased Pankaj was found at the place where accused used to keep bundle of waste pieces of cloths and the aforesaid fact is not sufficient to prove the guilt of the accused so far as section 304A IPC is concerned.
28. Similarly PW2 Mahipal Singh, PW3 Bhagwat Prasad and PW5 Sonu deposed that on 02.07.2006 they came to know that the dead body of Pankaj was found lying under the sacks of cloth pieces near plot no. Y13, Sanjay Colony and they did not depose anything about the rash and negligent conduct of the accused in causing death of deceased Pankaj.
29. Testimonies of PW4 Vaijyanti Devi, PW7 Vimlesh and PW8 Keshav Dass do not indict the accused so far as the alleged offence is concerned. PW8 Keshav Dass deposed during his cross examination that he had not seen accused Raju while keeping the sacks of cloth pieces at the spot and PW7 admitted during her cross examination that at the time of incident goods/bundles of complainant Ram Kishan were also lying at the spot and she could not tell as to how the death of deceased Pankaj occurred.
30. PW9 Retd. Inspector Prakash Chand is the first IO who came at the spot after registration of the FIR and he deposed regarding the manner in which he conducted the investigation and he deposed during his examination that the dead body of deceased Pankaj were recovered from the pile of cloths of complainant Ram Kishan and he denied that the heap of bags containing old cloths under which the dead body of deceased Pankaj was found belonged to accused Rajbir @ Raju.
31. PW10 Inspector Akshay Kumar, PW11 ACP Mahesh Tholia, PW15 Inspector Baljeet Singh and PW16 Inspector Surender Singh Dalal were the subsequent IOs in the present case who conducted further investigation and recorded the statements of PWs u/s 161 Cr.PC.
FIR No. 564/06 State Vs. Rajbir @ Raju Page 13 of 1532. PW12 ASI Satender deposited the sealed pullandas and visra in FSL Rohini. PW13 ASI Hashim Khan was marked the inquiry regarding DD No. 23 and 26 both dated 30.06.2006 regarding the incident in question and he stated that he could not find any clue of deceased Pankaj. PW14 Inspector Manish Joshi reached at the spot of incident on 02.07.2006 upon receipt of information vide DD No. 12 dated 02.07.2006 about the recovery of dead body of deceased Pankaj and he prepared the rukka Ex.PW14/A for registration of FIR. PW14 stated during his cross examination that dead body of deceased Pankaj was found lying on the side of the road which is a government land. Whereas, as discussed above, PW1 Ram Kishan deposed that the dead body of Pankaj was found lying in the rented premises of accused Rajbir @ Raju. Therefore, there is a material contradiction in the testimony of the complainant and other witnesses regarding recovery of dead body of deceased Pankaj. None of the witness examined by prosecution deposed that the death of deceased was caused due to rash and negligent act of accused which is the foremost requirement to prove the allegations. Further, as per prosecution witnesses examined by prosecution, various persons including the complainant used to keep bundles of cloths at the spot from where the dead body of deceased Pankaj was recovered. No evidence could be produced on record to show any proximity between cause of death of deceased and the alleged act of the accused.
33. Considering the facts and circumstances, material placed on record and the testimonies of the PWs recorded by the prosecution, I am of the opinion that prosecution has miserably failed to prove that the accused caused the death of deceased Pankaj @ Rahul by any rash and negligent act. Consequently accused Rajbir @ Raju is entitled to be acquitted in the present case.
FIR No. 564/06 State Vs. Rajbir @ Raju Page 14 of 1534. Accordingly, accused Rajbir @ Raju is held "not guilty" and is accordingly acquitted for the offence punishable u/s 304A IPC.
File be consigned to Record Room.
Announced in the open court Today on 28.08.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/28.08.2018 FIR No. 564/06 State Vs. Rajbir @ Raju Page 15 of 15