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