State vs Jeewan Kumar Paswan & Ors
2014 Latest Caselaw 1949 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of decision: 17th April, 2014
+                          CRL.L.P. 352/2012
       STATE                                          ..... Petitioner
                    Through    Mr. Rajat Katyal, APP with SI Vivek
                    Yadav, PS S.J. Enclave.

                           versus

       JEEWAN KUMAR PASWAN & ORS             ..... Respondent
               Through   Mr. G.P. Singh, Advocate for Jeewan
               Kumar Paswan.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MR. JUSTICE G.P. MITTAL

       SANJIV KHANNA, J.

Crl.M.A. 12502/2012

Delay in filing of the leave to appeal is condoned.

The application is disposed of.

CRL.L.P. 352/2012

Appellant-State has not been able to verify and positively

ascertain whether respondent No.2 has expired. It is, however,

stated that as per the information available and ascertained,

respondent No.2 was a vagabond and resident of Nepal but no

one knows his address in the said country. Orally it was stated

that respondent No.2 has expired.

2. We have heard learned Additional Public Prosecutor for

the State and Mr. G.P. Singh, Advocate, who has entered

appearance on behalf of respondent No.1, Jeewan Kumar

Paswan.

3. Learned Additional Public Prosecutor submits that the

trial court has erred in acquitting the respondents-accused, inter

alia, on the ground that there was delay in recording of the FIR.

He relies upon statement of Virender Kumar, PW-4, who it is

submitted had also suffered beatings and was an eye witness to

the beatings given to deceased Samson. Our attention is drawn

to the testimony of PW-1, Radhika wife of the deceased

Samson. He submits that the post mortem report, Ex.PX was

admitted by the respondents and, therefore, the prosecution has

been able to prove the cause of death. He has drawn our

attention to the statement of respondent No.1, Jeewan Kumar

Paswan recorded under Section 313 of the Code of Criminal

Procedure, 1973, wherein he has stated that it is a matter of

record whether mobile phone Ex.P1 was seized from the co-

accused Rajesh.

4. At the outset, we notice that Rajesh in his statement under

Section 313 Cr.P.C. had denied that the mobile phone belonging

to Samson was seized from him. It is also noticeable that PW-1,

Radhika wife of the deceased has not referred to mobile phone

of the deceased Samson and whether the same was missing and

whether she had tried to or could not contact the deceased

Samson on the said mobile number/phone. On the other hand,

her court deposition is that on 24th August, 2010, she had gone

her mother‟s house at Rohtak and had made a telephone call to

one Gabbar on 3rd September, 2010, who informed her that

Samson had suffered injuries and was unable to speak. The

mobile phone instrument of Samson was never shown to PW-1,

Radhika or identified by her.

5. Trial court has not merely relied upon delay in registration

of FIR to acquit the respondents. This is one of the facts noticed

by the trial court. There are several reasons and ground for

acquittal of the respondents. As per prosecution version, the

deceased Samson and Virender Kumar, PW-4 were given

beatings by the respondents on 30th August, 2010. Rajesh

suspected that PW-4 or the deceased Samson had stolen his

mobile phone. However, Virender Kumar, PW-4 had deposed

that Jeewan @ Totla had not given beatings to Samson, but had

driven the three-wheeler scooter and had taken him to the forest

area where beatings were given by respondents Rajesh, Amit

and one Manoj Gujjar. Manoj Gujjar was not prosecuted or

charge sheeted. It is noticeable that PW-4 did not get himself

medically examined on 30th August, 2010 or immediately

thereafter. His MLC Ex.PW3/A is dated 12th September, 2010

and refers to alleged history of assault, but the date and time of

assault is not indicated or stated. The said MLC was proved by

Dr. Aadil Fahad Ansari, PW-3, who had stated that patient was

having loss of consciousness and was vomiting. Accordingly,

the patient was referred to Neuro Surgery Department for further

treatment. The MLC shows that the occurrence or assault had

taken place on 12th September, 2010 and in the said occurrence

PW-4 had suffered injuries. However, as per the prosecution

version, the injuries were suffered by PW-4 and the deceased

Samson on 30th August, 2010.

6. Similar statement has been made by PW-1, Radhika, who

at that time was not in Delhi, but had returned to Delhi as per her

testimony on 3rd September, 2010 or shortly thereafter. On

return, she did not find deceased Samson in the Jhuggi but in

Safdarjung Hospital. It is however stated by PW-1 that the

deceased Samson was not admitted in the hospital, but was lying

in the „verandah‟ of the hospital. Subsequently Samson died on

12th September, 2010 as proved from the MLC Ex.PW6/A

recorded on 12th September, 2010, which is on the same day on

which the MLC of PW-4 Ex.PW3/A was recorded. The MLC

Ex.PW6/A of deceased Samson records that the patient was

declared brought dead in the casualty at 4 p.m. It is mentioned

that the patient was brought by PW-1, Radhika with alleged

history of assault as stated/given.

7. The post mortem report Ex.PX, as noted above, was

admitted by the respondents. The said report mentions that four

external injuries were visible. These were:-

"1. brownish abrasion 2x2 cm on middle back, 7.0 cm below the posterior hair line ;

2. brownish green bruise 30x25 cm on right lumbar region with extension to right mid chest region ;

3. brownish green bruise 15x15 cm on lateral aspect of left chest ;

4. brownish green bruise 7X5 cm on right upper arm."

8. On internal examination, it was observed:-

"Scalp:- Extravasation of blood over vertex and over occipital region.

Skull:- NAD Brain:-Pale Neck:- All structures intact.

Ribcage: Right Side: 3rd to 5th ribs fractured with extravasation of blood on midclavicular line. Left Side: 5th to 8th ribs fractured anterior axillary line.

Lungs:Multiple contusions present on both the lungs.

Right lung located in middle and lower lobes with extravasation of blood (about 600 ml of fluid and clotted blood) in placel cavity (right side). Stomach: About 150 ml of fluid present (alcohol smell present).

              Liver, spleen, Kidneys:        Pale


               Intestines:   NAD
              Bladder:      Empty."

9. Multiple contusions were noticed on both the lungs and the right

lung had extravasation of blood. About 150 ml of fluid was present

in the stomach and smell of alcohol was possibly present. On the

cause of death in the post mortem report Ex.PX it is opined as under:-

"Shock due to antemortem injury to ribcage and lungs produced by blunt force impact. Injuries No.2 and 3 singularly and collectively fatal and sufficient to cause death in ordinary course of nature"

10. The doctor, who had conducted the post mortem was not

examined as a witness. As per PW-4, deceased Samson was given

beatings by legs and fist blows on 30th August, 2010. Post mortem

report does not talk about the date and time when the injuries were

caused. As per PW-1, Radhika, when she came back to Delhi from

Rohtak on 3rd September, 2010, she found her husband lying in

„verandah‟ of the Safdarjung Hospital. It has not been investigated or

verified whether Samson was treated in the hospital after 30th August,

2010. Even if the deceased used to sell „Kafan‟ outside the hospital, it

is probable that he would have gone for treatment in case he was

having pain and had suffered an assault. There was fracture of the ribs.

Trial court after referring to the post mortem report, recorded the

following findings:-

"Recalling the case of prosecution, allegedly the injuries were given by legs and fist blows. As per

produced by blunt force are fatal and sufficient to cause death. Prosecution did not bring any material on the record that these fatal injuries could have been caused by legs and fist blows. Even for the sake of arguments, if it is admitted that prosecution has brought material on the record that deceased was given beatings by accused persons, prosecution is bound to prove that the death occurred on account of such beatings. The main link between the alleged injuries caused by the accused persons and the death is missing. It is pertinent to mention here that during examination of PW6 Dr. Tashi, the court put a specific question to the witness regarding brownish discolouration of the skin. In reply to which, PW6 stated that brownish discolouration of the skin takes place due to the blunt injuries and it can happen within one or two days of such injuries. It is important to recall here that injuries in the present case were more than 12 or 13 days old. Prosecution was required to prove that the injuries appeared in the MLC or Postmortem report were caused by the accused persons."

11. Looking the entirety of the facts, we do not think that the order

of acquittal passed by the trial court requires reconsideration or re-

examination. The view taken by the trial court is plausible. Leave to

appeal is accordingly dismissed.

SANJIV KHANNA, J.

G.P. MITTAL, J.

APRIL 17, 2014 NA