Delhi District Court
State vs . Shakti Singh S/O Bishan Singh, R/O ... on 26 November, 2010
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 95/09
Unique Case ID No. 02402R0180572009
State Vs. Shakti Singh S/o Bishan Singh, R/o Village Bhabisa, Tehsil
Budhana, PS Kandala Distt. Mujaffar Nagar, U.P.
FIR No. 94/09
PS Seemapuri
U/s 302 IPC.
Date of Institution : 10.07.09
Date of reserving the Judgement : 22.11.2010
Date of Judgement : 26.11.2010
J U D G E M E N T : Prosecution's case emanates from the fact that Mukesh and his brother Ritesh used to iron clothes in front of Flat No. 119A, J&K Pocket, Dilshad Garden, Delhi. At Flat No. 120D, J&K Pocket, Dilshad Garden, Delhi, Surender Agha was residing, who was provided PSO from Delhi Police. Constable Shakti Singh was coming there from last three months to perform his duties. Mukesh and his brother Ritesh used to have talks with him. On 17.03.09 at about 9am, both brothers reached at the place of their job. Constable Shakti Singh had reached to perform his duties at about 6pm. They inquired each other about their well being. At about 7.30pm, two or three boys came, out of whom one was known as Raja, reached at the park near the place of their job. Those boys parked their bullet motorcycle near the park and started strolling there. When Shakti Singh inquired those boys as to why they sometime come on motorcycle and sometime on foot, they replied that since the price of petrol has increased as such they prefer to come on foot. Shakti Singh started his talks with those boys. When Ritesh, brother of Mukesh, told Shakti Singh that those boys are of the colony, Shakti Singh shouted at Ritesh and pointed his service revolver on S.C. No. 95/09 Page 1/22 2 Ritesh. When Ritesh told him that he cannot do anything, Shakti Singh fired on him. Thereafter, Shakti Singh removed him to GTB Hospital in a rickshaw. Police reached at the hospital, where statement of Mukesh was recorded, which became bedrock of the case. Investigation was taken up. During the course of investigation, accused was arrested. Investigation culminated into a charge sheet against the accused.
2. Charge for offence punishable under section 302 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Raja Singh (PW1), HC Arun Kumar (PW2), Dr. Atul Gupta (PW3), ASI Ramesh Chand (PW4), SI E.S. Yadav (PW5), Constable Ramesh (PW6), Constable Sanjay Kumar (PW7), Constable Devender (PW8), SI Surender Sharma (PW9), Constable Shyam Lal (PW10), Ms. Shashi Bala (PW11), Jagroop Singh (PW12), Krishan Chandra Varshney, Assistant Director (PW13), Mukesh Kumar (PW14), Sumit Singh (PW15), SI Dharam Singh (PW16) and Inspector K.S. Rawat (PW17) in the case.
4. Raja (PW1) is the eyewitness of the incident.
HC Arun Kumar (PW2) had sent a number of parcels to FSL Rohini on various dates. He also deposed that as per record, revolver No. 496 was issued to Constable Shakti Singh with three rounds on 17.03.09 and the same were not deposited by Constable Shakti Singh. The entry regarding issue of arms and ammuinition was made in his handwriting.
Dr. Atul Gupta (PW3) conducted postmortem on dead body of Ritesh. He proved the postmortem report as Ex.PW3/A. ASI Ramesh Chand (PW4) recorded FIR and proved photocopy of same as Ex.PW4/A. He also proved DD No. 33A as Ex.PW4/C, besides true copy of DD No.60B, which is Ex.PW4/D. SI E.S. Yadav (PW5) being the incharge crime team, along with S.C. No. 95/09 Page 2/22 3 other officials, visited the spot and inspected the scene of crime. He prepared his report to this effect, which is Ex.PW5/A. Constable Ramesh (PW6) took tehrir to PS and got the case registered.
Constable Sanjay Kumar (PW7) was working as duty Constable at GTB Hospital on 17.03.09, on which date injured Ritesh was brought to hospital by Shakti Singh Constable. He gave information to this effect to duty officer vide DD No.33A. Vide DD No.102B, he informed the duty officer PS Seemapuri about death of injured.
Constable Devender (PW8) was handed over one envelop containing blood on gauze and two sample seals by the doctor. He gave the same to investigating officer, who took the same into possession vide memo Ex.PW8/A. SI Surender Sharma (PW9) detailed those investigative steps, which took place in his presence.
Constable Shyam Lal (PW10) took photographs of the spot from different angles. He proved the same as Ex.PW10/A1 to Ex.PW10/A10, besides negatives as Ex.PW10/B (collectively).
Ms. Shashi Bala, Sr. Scientific Assistant, (PW11) examined five sealed parcels in the case. She proved her detailed report in this regard as Ex.PW11/A. Jagroop Singh (PW12) identified dead body of his nephew Ritesh. His statement Ex.PW12/A was recorded to this effect.
Krishan Chandra Varshney, Assistant Director (Ballistic) (PW13) examined exhibits of the case. He gave his detailed report in this regard, which is Ex.PW13/A. Mukesh Kumar (PW14) and Sumit (PW15) also claim themselves to be eyewitnesses of the incident.
SI Dharam Singh (PW16) detailed those very investigative steps, S.C. No. 95/09 Page 3/22 4 which took place in his presence.
Inspector K.S. Rawat (PW17) detailed that on 17.03.09, he was posted at PS Seemapuri. On that day, on receipt of information regarding DD No. 33A Ex.4/C, through telephone, regarding admission of injured Ritesh with bullet injury at GTB Hospital by Constable Shakti Singh, he along with SI Dharam Singh and ASI Ved Prakash went to GTB Hospital. One person, namely, Mukesh, brother of injured Ritesh was found present in the hospital. He recorded his statement, which is Ex.PW14/A. He made endorsement on the same vide Ex.PW17/A and gave tehrir to Constable Ramesh for getting the case registered. Constable Shakti Singh was standing outside the emergency room. He made inquiries from him. He recorded his disclosure statement Ex.PW16/A. At that time accused Shakti Singh was having his service revolver in his dub. He checked that service revolver. There were two live cartridges and one fired cartridge inside the chamber of the service revolver of Constable Shakti Singh. He prepares sketch of service revolver and two live cartridges and one used cartridges on a white paper vide Ex.PW17/B. He kept the same in three separate parcels and gave Sl. No. P1, P2 and P3 and sealed the same with seal of KSR. He inspected the site and prepared site plan Ex.PW17/C. From the spot, he lifted exhibits, blood with help of cotton, blood stained earth and earth without blood and kept all these exhibits in three different plastic containers and gave them sl. No. P4, P5 and P6 and took the same into possession vide memo Ex.PW9/A. He also prepared pointing out memo of accused Shakti Singh. Thereafter, he had taken blood stained clothes viz one saleti colour pant and yellow white lining shirt, one black colour belt, which was stitched on both ends. He had noticed the blood on the clothes of accused Shakti Singh, when he firstly met him in the hospital. He deposited all the exhibits in the malkhana. Accused was got medically examined. Accused was arrested vide arrest S.C. No. 95/09 Page 4/22 5 memo Ex.PW16/C and his personal search was conducted vide memo Ex.PW16/B. On 21.03.09, DD No.102 was received regarding death of Ritesh. On receipt of this information, he along with Constable Devender went to GTB Hospital. On 22.03.09, he prepared inquest papers of deceased Ritesh, which is Ex.PW17/D. He also got conducted postmortem on the dead body. Constable Devender produced before him one sealed bottle containing bullet recovered from the dead body and one sealed envelope containing blood on gauze along with sample seal. He took the same into possession vide memo Ex.PW8/A. Exhibits of the case were got sent to FSL. Scaled site plan of the spot was got prepared through Constable Sonu, Draughtsman. He also obtained subsequent opinion of the autopsy surgeon. He recorded statement of witnesses and after completing investigation, challan was prepared in the case.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He admitted that on 17.03.09, he was PSO to one Suresh Agha, resident of 120D, J&K Pocket, Dilshad Garden, Delhi. Vide DD Ex.PW4/D, he was sent for his duty at about 7.10pm and at that time he was having revolver No. 496 and three live cartridges. He also admitted that he used to sit on a chair near place of washerman Ritesh (deceased), who was doing the work of ironing clothes in front of Flat No.119A, J&K Pocket, Dilshad Garden, Delhi. At about 7 or 7.15pm, Raja along with Sumit went on a bullet motorcycle and after sometime, they parked the same at the house of Raja. He further admitted that he removed Ritesh to GTB Hospital in a rickshaw and duty Constable Sanjay Kumar gave information to police station regarding admission of injured in GTB Hospital vide DD No.33A, which is Ex.PW4/C. He had denied rest of the allegations levelled against him. He claims himself to be innocent. He told the truth to police and neighbours of the area also stated to police that some unknown S.C. No. 95/09 Page 5/22 6 assailants forcibly wanted to go to the house of Surender Agha. When he stopped them, they quarreled with him and one of them snatched his revolver. When he chased them, that person who snatched revolver from him, fired at him. He bowed down and saved his life. On further chasing, the assailants threw his revolver and fled away. When he came back after taking his revolver, he saw Ritesh (deceased) falling down. He shouted for help and rickshaw. One rickshaw puller came and he removed the deceased to hospital without any delay. In support of his defence, he has examined Daljeet Singh (DW1).
6. DW1 Daljeet Singh has deposed that on 17.03.08, he was going for a routine walk in the park. He heard noise from ground floor of the flat No. 119A, J&K Pocket, Dilshad Garden, Delhi. In that building, one Surender Agha was residing on the top floor in flat No. 120D, J&J Pocket. The police had provided three PSO round the clock for the security of Surender Agha. On that day at about 6.15pm, while he was walking in the park, he saw three persons forcibly going towards the upstairs to the house of Surender Agha and when the policeman at the ground floor stopped them and asked as to why they want to go, they started quarreling and scuffled with policeman, that is, accused Shakti Singh. Suddenly on of them snatched the revolver from that policeman and fled away. That police man chased him and that person fired back. Accused bowed down and saved his life and said bullet hit a washer man present behind the accused, as a result of which said washer man sustained injuries and fell down. Police official chased the assailants, but assailants ran away after throwing the revolver. After that accused took said washer man to hospital in a rickshaw. Local police officials also reached at the spot. He told all the facts to them. Many other public persons had also witnessed the said incident and stated the same facts before police police. He also deposed that Shakti Singh is innocent and has no connection with S.C. No. 95/09 Page 6/22 7 the present case and has been falsely implicated in the case.
7. I have heard Sh. Ravinder Khandelwal, ld. Prosecutor, for the State, Sh. R.K. Thakur, Advocate, for the accused and have perused the record.
8. It was submitted by ld. Prosecutor that accused was working as PSO with one Surender Agha and on the fateful day when he was sent on his duty, he was having revolver No. 496 and three live cartridges. The deceased received gun shot injuries from service revolver of the accused and as such it is proved that it was the accused, who shot injuries on the person of deceased. Even otherwise, he being a police official, it was incumbent upon him to have kept his service revolver in the safe custody. The plea taken by the accused that it was snatched by three persons, who were going to the house of Surender and then an altercation took place between the accused and those persons is an afterthought and no such complaint was made by accused and if this pleas is accepted then it shows that he was negligent in discharge of his duties. Under these circumstances, it was submitted that prosecution has been able to bring home guilt of accused beyond reasonable doubt and accused is liable to be convicted of the offence.
9. Per contra, it was submitted by ld. Defence counsel that it is not in dispute that accused, at the relevant time, was working as PSO for Surender Agha and on the fateful day he was sent for night duty and at that time he was handed over revolver No. 496 and three cartridges. However, it was submitted that three persons were going to the house of Sh. Surender Agha, on which accused made inquiries and then quarrel took place between them. One of those three persons snatched his revolver. Accused chased them and thereupon those persons fired at accused, who ducked down and bullet hit Ritesh. On seeing Ritesh falling down, it was the accused who sought for help and then removed him to hospital, which is proved by DD entry. It was further submitted that S.C. No. 95/09 Page 7/22 8 medical report also proves his version, inasmuch as, as per postmortem report, there was no blackening, no tattooing and no syringing was seen around the wounds, and in crossexamination doctor admitted that if a person is fired from a far distance, then no blackening, no tattooing and no syringing is seen around the wounds. Further more, accused has examined DW1 Daljeet Singh, who has substantiated the plea taken by the accused and even testimony of that witness that three persons, who were forcibly going towards the house of Surender Agha, then scuffled took place between them and accused, one of them snatched revolver of accused and fired from that revolver goes unrebutted, inasmuch as, his testimony was not assailed in crossexamination. He also referred to the some discrepancy in timing of the testimony of prosecution witnesses and as such it was submitted that prosecution has failed to prove bring home guilt of the accused persons beyond reasonable doubt. As such accused is liable to be acquitted of the charge.
10. I have carefully given my considerable thoughts to respective submissions of ld. Counsels for the parties and have carefully perused the record.
11. A perusal of evidence led by the prosecution, coupled with answers given by the accused, when incriminating evidence was put to him while recording his statement under section 313 Cr.P.C and the defence witness Daljeet Singh examined by him goes to show that following admitted facts emerged out: (1) On 17.03.09, accused was working as PSO with Surender Agha, resident of 120D, J&K Pocket, Dilshad Garden, Delhi. (2) On that day, accused was sent for PSO duty at about 7.10pm, vide DD Ex.PW4/D and at that time he was having revolver No. 496 and three live cartridges.
(3) Ritesh, the deceased, used to do work of ironing clothes in front of flat S.C. No. 95/09 Page 8/22 9 No. 119A, J&K Pocket, Dilshad Garden, Delhi, by putting a table outside the grill of the park.
(4) Accused used to sit nearby Ritesh and relations between accused and Ritesh were quite cordial.
(5) On 17.03.09 at about 7/7.15pm, PW1 Raja and PW15 Sumit went on a bullet motorcycle and after sometime they parked the same at the house of Raja.
(6) PW1 Raja and PW15 Sumit went inside the park. Accused inquired from them. Thereupon PW1 Raja told him that price of petrol has gone high, therefore he has parked his motorcycle and now he along with Sumt were walking in the park on foot.
(7) Ritesh sustained gun shot injuries.
(8) Accused removed Ritesh to GTB Hospital in rickshaw. (9) Information was given by duty constable Sanjay Kumar to police station regarding admission of injured in GTB Hospital vide DD No.33A, which is Ex.PW4/C. (10) On receipt of DD Ex.PW4/C, Inspector K.S. Rawat (PW17) along with SI Dharam Singh (PW16) and ASI Ved Prakash went to GTB Hospital, where they found injured admitted in the hospital, who was unfit for making statement.
(11) Accused was present outside emergency room of the hospital. (12) Accused was arrested in the hospital and he was having his service revolver, which was found containing two live cartridges and one fired cartridge.
(13) The revolver and the cartridges were taken into possession by police. (14) The clothes of the accused were stained with blood, when he removed injured to hospital.
(15) Injuries sustained by Ritesh proved to be fatal and he expired on 21.03.09.
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10 (16) Postmortem on the dead body was conducted by Dr. Atul Gupta and one bullet was recovered from body of deceased.
(17) The bullet recovered from dead body of deceased and live cartridges were sent to FSL and ballistic report was given by Sh. K.C. Varshney, who opined that revolver was in working order. Cartridges A1 and A2 were live and could be fired from revolver in question. The bullet Ex.1 was fired through revolver 0.380 calibre as such it is also proved that bullet which was recovered from dead body of deceased was fired from revolver, which was given to accused at the time when he was sent for duty and which was recovered from his possession.
With these admitted facts, the only question which remains for consideration is as to how the deceased sustained injuries, which proved fatal. In this regard the material witnesses are PW1 Raja, PW14 Mukesh Kumar and PW15 Sumit.
12. PW1 Raja has unfolded that on 17.03.09 at about 77.15pm, he was taking a round on one bullet motorcycle of black colour, which belongs to his cousin. Thereafter, he parked the said motorcycle at his house. Then he along with his friend Sumit went to the park, which is just in front of their residence. He saw Constable Shakti Singh and washerman Ritesh talking. The Constable asked him as to why he had parked motorcycle. He informed him that since bullet motorcycle gives less average, therefore he drives it occasionally. Constable Shakti Singh asked him to take bullet motorcycle to one mechanic, who was known to him and that he will repair it so that it gives good average. Thereupon, he informed Shakti Singh that bullet motorcycle did not belong to him, but his cousin Ishu Singh. Thereupon Constable Shakti Singh inquired from him, if he st was student. He informed him that he was student of B.Com 1 year from Delhi University. Constable Shakti Singh and Ritesh were talking to each other. After going a distance of 15 paces from the park, he saw that S.C. No. 95/09 Page 10/22 11 washerman Ritesh was lying on the ground and Constable Shakti Singh was giving support to him. Constable Shakti Singh asked for rickshaw. He went to bring rickshaw and thereafter Ritesh was taken by Shakti Singh in that rickshaw. At that time blood was oozing out from head of Ritesh. He could not say as how this occurrence took place. Initially, he even did not identify the accused. Thereupon, he was crossexamined by the ld. Prosecutor and in crossexamination he admitted that Constable Shakti Singh was accused, who was facing trial in this case. He was confronted with material portion of his statement made in examinationinchief with statement made to police in order to show that there was material discrepancy in two statements. He could not say, if Constable Shakti Singh was having service revolver. Despite lengthy crossexamination by the ld. Prosecutor, nothing favourable to the case of prosecution could come out from testimony of this witness. In crossexamination by the ld. Defence counsel, the witness admitted that relations between the washerman and Shakti Singh were very cordial.
13. PW14 Mukesh Kumar, who is complainant and real brother of deceased, has deposed that on 17.03.09 at about 66.15pm, one police official, namely, Shakti Singh was sitting near the park of J&K pocket. Three persons, namely, Sumit, Raja and one more person were going on motorcycle from near the park. They parked motorcycle somewhere and then they came at the park. Shakti Singh asked them as to why they were roaming near the park, sometimes on motorcycle and sometimes on foot. His brother informed him that those boys are resident of 126A. Thereafter, those boys were allowed to go. After half an hour, three boys came and started climbing the stairs of Surender Agha, a resident of flat No.120D, J&K Pocket, Dilshad Garden. Some altercation took place between Shakti Singh and those three boys. One of the boys took out the pistol of Shakti Singh and all those three boys started running from there. Shakti Singh S.C. No. 95/09 Page 11/22 12 chased them. The person who was having pistol of Shakti Singh fired at him. Shakti Singh sat on the ground and that bullet hit his brother Ritesh. After firing from the pistol, that person threw the pistol and ran away from there. Shakti Singh lifted his pistol from the ground. He saw his brother hit by bullet and he called for rickshaw. Thereafter, Shakti Singh removed his injured brother to GTB Hospital in that rickshaw. After informing wife of his brother Ritesh, he went to hospital on his bicycle. Police officials came at the hospital and he was asked to sign statement Ex.PW14/A. His brother remained admitted in the hospital from 17.03.09 to 21.03.09 and he died on 21.03.09. Since this witness also did not support the case of prosecution, he was also crossexamined by the ld. Prosecutor and in crossexamination he denied that Raja and Sumit were present at the time of occurrence. He admitted that relations between his brother Ritesh and Shakti Singh were cordial. They used to talk in friendly manner. He also admitted that Constable Shakti Singh used to come on duty and used to sit along with his brother Ritesh and used to take water. As regards statement regarding three boys coming over there, climbing stairs of Surender Agha, an alteration between Shakti Singh and three boys ensued, thereafter taking out the pistol of Shakti Singh by one of the boys and all those three boys started running from there or that Shakti Singh chased them or that the person who was having pistol of Shakti Singh fired at shakti Singh, which misfired at Ritesh were confronted to the witness from his complaint Ex.PW14/A, where all these facts did not find mention. He admitted that persons of locality came to know that his brother Ritesh was hit by bullet and bullet was fired from service revolver of Constable Shakti Singh. However, he went on stating that Constable Shakti Singh did not fire from service revolver. He also went on stating that since service revolver belongs to Shakti Singh, as such public persons were under impression that it was done by Shakti Singh, but S.C. No. 95/09 Page 12/22 13 actually shot was fired by other boys. He could not say, if news regarding murder of his brother was published in newspaper. He admitted that he did not go to senior police officials to make a complaint that accused has been falsely implicated in this case. The witness was also confronted with complaint Ex.PW14/A, where it was recorded that when Shakti Singh was talking with boys, his brother told him that those boys were from that very locality or that Shakti Singh took out his revolver and stated that in case he speaks too much then he will kill him or that his brother reiterated that Shakti Singh was not competent to do so or thereupon Shakti Singh fired from his revolver on his brother. The witness denied having made any such statement in the complaint Ex.PW14/A. He also denied that he has accepted a huge amount from family members of the accused, and as such he has been won over by them and as such not deposing against the accused. In crossexamination by the ld. Defence counsel, he deposed that he is illiterate and cannot sign. According to him, his statement was not recorded by police officials before him. He was merely asked to put his signatures on the same and without going through contents of the same, he signed statement in good faith presuming that police officials would have recorded correct facts narrated by him.
14. PW15 Sumit Singh was the other person, who had come on the motorcycle along with PW1 Raja and after parking motorcycle, they went to park. He has also deposed regarding the conversation which took place between accused and Raja and has deposed that after going about 2025 paces, he heard sound of bullet and turned back and saw two or three persons running away from there. He saw that presswala was lying on the ground. Immediately, he reached there and saw that accused was taking care of that presswala. The blood was coming out from head of said presswala. Shakti Singh asked them to bring a rickshaw. Someone came in the rickshaw and accused lifted injured in that rickshaw. Thereafter, he S.C. No. 95/09 Page 13/22 14 did not know as to what happened with presswala. Since this witness also did not support the case of prosecution, he was crossexamined by the ld. Prosecutor and in crossexamination nothing favourable to the prosecution could be taken out from testimony of this witness.
15. Under these circumstances, there were three public witnesses, including the complainant and none of them have supported the case of prosecution. The complainant Mukesh Kumar although has admitted that bullet has been fired from service revolver of Constable Shakti Singh, but exonerated him by stating that he himself did not fire from his service revolver. Besides three witnesses, there is no other evidence on record to show that it was accused, who fired from his service revolver upon Ritesh, the deceased, which proved fatal.
16. Moreover, even the medical evidence does not support the prosecution in this regard, inasmuch as, as per testimony of these three witnesses, accused was sitting very near to the injured Ritesh, who was doing the work of ironing of clothes. However, as per postmortem report Ex.PW3/A, there was no blackening, no tattooing and no syringing seen around the wound. Dr. Atul Gupta in his crossexamination admitted that when a person is fired from a far distance then there is no blackening, no tattooing and no syringing seen around the injuries. Therefore, the medical report also negates the prosecution case that accused had fired from his service revolver at the injured and rather supports the testimony of witnesses that it was fired by one of the boys at Shakti Singh, but it misfired at Ritesh.
17. Moreover, there seems to be no motive for firing by the accused at the injured. This is particularly so because it is the case of prosecution itself that relations between accused and Ritesh were very cordial, and accused normally used to sit with injured only. Although Mukesh, brother of deceased, has not supported the case of prosecution, even his original S.C. No. 95/09 Page 14/22 15 complaint Ex.PW14/A does not reflect any strong motive for the accused to kill Ritesh, inasmuch as, it was merely stated by him in this complaint that when accused inquired from Raja regarding the reason as to why sometimes he was roaming on motorcycle and sometimes on foot, at that time Ritesh informed him that boys belongs to the same locality and according to him at that time Shakti Singh took out his revolver and told Ritesh that in case he speaks too much, then he will kill him. Ritesh reiterated that it was not possible for him to do so. Thereupon Shakti Singh fired from his revolver on Ritesh. No prudent person would behave in the manner, which was tried to be reflected in this statement. Moreover, whatever was recorded in the statement has not been owned by the witness and while deposing in the Court, he has disowned this part of the statement.
18. There are catena of decisions to this effect that where prosecution has been able to establish its case beyond reasonable doubt on the basis of other material available on record, then the motive looses its importance. But otherwise motive to commit the crime is an important factor. In Tarseem Kumar vs. Delhi Administration, 1995 Cr.L.J. 470, it was laid down by Hon'ble Apex Court that where the case of prosecution has been proved beyond reasonable doubt on the basis of material produced before the Court, the motive looses its importance. But in a case which is based on circumstantial evidence, motive for committing crime on the part of accused assumes greater importance. It was further emphasised that if each of the circumstance proved on behalf of the prosecution is accepted by the Court for the purpose of recording finding that it was the accused, who committed crime in question, even in absence of any proof of motive for commission of such crime, the accused could be convicted. Similar view was taken in Budha Satya Venkatraman vs. State of Andhra Pradesh, 1 (1995) CCR 35, Surender Jain vs. Delhi S.C. No. 95/09 Page 15/22 16 Administration, 1993 Cr.L.J. 1871, Varun Chaudhary vs. State of Rajasthan, 2010 IX AD (SC) 309. In the instant case, motive to commit crime is not proved.
19. Further the conduct of the accused cannot be lost sight. It is the case of prosecution as deposed by the public witnesses and also reflected from DD No.33A Ex.PW4/C that it was the accused, who had removed Ritesh to GTB Hospital in a rickshaw. If the accused was guilty of firing at the injured, he could have escaped from the spot. But he did not do so and removed injured to the hospital. Moreover, even after getting the injured admitted in the hospital, he did not disappear from hospital, but was very much available over there, inasmuch as, it is the case of prosecution itself that he was arrested by police from hospital itself.
20. Further more, no inquiry was at all conducted by the investigating officer as to why PSO was provided to Surender Agha and who was inimical qua him, so as to endanger his life, so as to provide security guards to him. Although, at one stage in crossexamination, it has come that there was incident of eve teasing of his daughter, but that daughter has already gone abroad. If in connection with eveteasing of the daughter, the security was provided then after daughter left for abroad, there was no question of further providing security guards to Surender Agha. But the investigating officer neither contacted Surender Agha nor made any inquiries from him in this regard.
21. The result of the aforesaid discussion is that there is no direct evidence established on record to prove that it was the accused, who had fired on Ritesh from his service revolver, inasmuch as, all the three public witnesses have not supported the case of prosecution in this regard. Even the medical evidence does not raises a pointing finger towards the accused. Moreover, there was no motive on the part of accused to commit murder of Ritesh by firing from his service revolver and his conduct also S.C. No. 95/09 Page 16/22 17 lends assurance to his plea of innocence. Under these circumstances, prosecution has failed to prove that it was the accused, who had committed murder of Ritesh by firing from his service revolver.
22. Confronted with this situation, ld. Prosecutor took alternative plea that as required under Rule 6.10(3) of Punjab Police Rules, it was the duty of the accused to keep the service revolver in safe custody and take care of weapon entrusted to him. However, the accused has been negligent in keeping safe custody of service revolver, inasmuch as, according to him his service revolver was snatched by three persons, who were climbing stairs of Surender Agha for whom he was deputed as PSO. In this regard, it was submitted by ld. Defence counsel that accused was deputed as PSO for Surender Agha. When he saw three persons forcibly wanting to go to the house of Surender Agha, he stopped them. Thereupon a scuffle took place between him and those three persons and in that scuffle revolver was snatched by one of them. It was submitted that all this happened suddenly and he was alone while those boys were three in number, and therefore if one of them snatched revolver, it cannot be said that accused was negligent in keeping safe custody of revolver. He submitted that when one of those boys fired back at him and threw revolver, accused was vigilant enough to take revolver from spot in his possession, inasmuch as, revolver was taken into possession by police in the hospital from possession of accused himself. As such, it was submitted that even negligence on the part of the accused in the instant case is not proved.
23. Rule 6.10 (3) of Punjab Police Rules reads as under : "Every police officer is personally responsible for the safe custody and care of every weapon, or accessory thereto, issued to him, until it is returned to the custody of the officer responsible for issuing it, as prescribed in subrule (1) above".
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24. As per subrule, it is responsibility of every police officer to keep safe custody and care of every weapon, which is issued to him. It is not in dispute that revolver in question was issued to the accused, but question for consideration is whether the accused was negligent in keeping safe custody of revolver. It is the case of accused that he was working as PSO with Surender Agha on the fateful day. Some unknown assailants forcibly wanted to go to the house of Surender and when he stopped them, they quarreled with him and one of them snatched his revolver. When he chased them that person, who snatched revolver from him fired at him. He got down and saved his life. On further chasing, the assailants threw his revolver and fled away. In order to substantiate his case, he has examined DW1 Daljeet Singh, who was resident of the same area, where accused was deputed on PSO duty. He has also deposed that Surender Agha, resident of flat No. 120D, J&K Pocket, Dilshad Garden was provided three PSO round the clock for his security. On that day, at about 6.15pm, while he was walking in the park, he saw three persons forcibly coming towards stairs leading to the house of Surender. Accused stopped them and asked them as to why they want to go. Thereupon, they started quarrelling and scuffling with the accused. Suddenly, one of them snatched his revolver and fled away. Accused chased them and the persons fired back. Accused got down and saved his life and the bullet hit a washer man, who was behind the accused, as a result of which washer man sustained injuries and fell down. Police official chased the assailant, but they ran away after throwing the revolver. It is pertinent to note that this part of the testimony of witness that three persons were trying to go upstairs leading to the house of Surender Agha and they were stopped by accused, thereupon, scuffle took place and one of them snatched his revolver and fired at him goes unrebutted, inasmuch this part of the testimony of witness has not been challenged in crossexamination. Rather, averments S.C. No. 95/09 Page 18/22 19 made in examinationinchief were reiterated in the crossexamination. Further more, the case set up by the accused and defence witness stands admitted by the complainant PW14 Mukesh Kumar. If the scuffling took place between three persons on one side and one person on the other and in that scuffling the revolver held by a single person is snatched by one of three persons, it cannot be said that there was negligence on the part of the accused in keeping safe custody of revolver. There is force in the submission of the ld. Defence counsel that accused would have been negligent, if he had not picked up revolver from the spot, when it was thrown by the assailants. However, it has come on record that after assailants fled away from the spot and threw the revolver on the ground, accused picked up the same and this revolver was taken into possession by police from possession of accused himself. The circumstances narrated above does not prove that there was any negligence on the part of accused in keeping safe custody of revolver, which was issued to him. Moreover, submissions made by ld. Prosecutor at the most may raise suspicion, but it is settled principle of criminal jurisprudence that suspicion, however, grave cannot take the place of proof.
25. In Swarn Singh Ratan Singh Vs. State of Punjab, AIR 1957 SC 637, it was held by the Apex Court that in criminal cases mere suspicion, however, strong, cannot take place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof.
26. Moreover, in Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court had observed as follows : "Another Golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the S.C. No. 95/09 Page 19/22 20 accused, and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding that benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations.
Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is exfacie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, however is more apparent than real.
It is no doubt true that wrongful acquittals are undesirable and S.C. No. 95/09 Page 20/22 21 shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not rule out altogether."
These two authorities, as detailed above, were relied upon by the th hon'ble High Court in CRL. A. No. 240/2009, dated 17 June, 2009, in case titled Shri Raj Pal Vs. State (NCT of Delhi) & Ors.
27. In Bokaraju Venkataparase Raju vs. State of Andhra Pradesh, (1993) Supp. (4) SCC 191, it was observed that Court has to be watchful and avoid danger of allowing the suspicion to take place of legal proof. For sometime unconsciously, it may happen to be a short step between moral certainty and legal proof. At times, it can be a case of "may be true"
and not "must be true" and the same divides conjectures from sure conclusions.
28. In the instant case also, at the most things remains in the realm of suspicion. But suspicion, however grave, cannot take place of proof and in view of cardinal principal of criminal jurisprudence that it is incumbent upon the prosecution to prove guilt of the accused beyond doubt and in case of doubt, accused is entitled to get benefit of the same, in the instant case also, prosecution has not been able to prove its case against accused beyond reasonable doubt. That being so, accused is entitled to S.C. No. 95/09 Page 21/22 22 benefit of doubt. He is accordingly acquitted of the offence alleged against him. He be set at liberty, if not wanted in any other case. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta)
th
On this 26 day of November, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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