Delhi District Court
State vs . Ramesh @ Phai on 7 February, 2014
State Vs. Ramesh @ Phai
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 18 of 2013
ID No. : 02401R0022992013
FIR No. : 116/12
Police Station : Anand Parbat
Under Section : 302 IPC
State
Versus
RAMESH @ PHAI
S/o Sh. Puran Chand
R/o H. No. T-325,
Bheel Basti Road No. 20,
Baljeet Nagar, Anand Parbat,
New Delhi.
.........Accused
Date of Institution : 14.01.2013
Date of Committal : 24.01.2013
Date of judgment reserved on : 29.01.2014
Date of judgment : 07.02.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. R.P. Tyagi, Advocate, counsel for the accused
SC No. 18/13 Page 1 of 26
State Vs. Ramesh @ Phai
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on the intervening night of September 24, 2012 and September 25, 2012 at about 2:50 A.M. an intimation was received at police station Anand Parbat through wireless operator that an intimation was received in police control room from mobile phone number 9211543393 that quarrel had taken place at H. No. P-51, Bheel Basti, Baljeet Nagar and injured had been stabbed. Said intimation was reduced into writing vide DD No. 8A (Ex. PW6/A) and same was assigned to SI Padam Singh (PW18), who along with constable Kali Charan (PW1) left for the place of occurrence.
(i) On reaching the place of occurrence, it was revealed that injured had already been taken to RML hospital by family members. Since lot of blood was found at the spot, intimation was given to senior officers and crime team was also called. It was alleged that after leaving the spot in the custody of manpac-35 SI Sunil Kumar, PW18 SI Padam Singh along with PW1 constable Kali Charan reached RML hospital and collected the MLC of injured Geeta whereupon doctor made an endorsement that she had been assaulted and sustained injury by sharp edged weapon. She was found unconscious and she was declared unfit to make statement.
Accordingly, at 5:30 A.M, PW18 made an endorsement on Ex. PW6/A and sent PW1 Constable Kali Charan to lodge an FIR for the offence punishable under Section 307 Indian Panel Code.
(ii) It was alleged that after sending rukka, it was revealed that nephew of injured named Raju had seen the assailant as he had chased him, accordingly, Raju (PW9) got recorded his statement to PW18 SI SC No. 18/13 Page 2 of 26 State Vs. Ramesh @ Phai Padam Singh. During investigation, PW18 SI Padam Singh also collected the exhibits from the place of occurrence.
(iii) At about 12:40 P.M. injured was declared dead, accordingly, dead body was got sent to mortuary and Section 302 of Indian Panel Code was inserted. Thereafter, investigation was assigned to Inspector Dalbir Singh (PW23) and he conducted inquest on the dead body.
(iv) It was alleged that on October 8, 2012 one lady named Savitri (PW2) came to the police station and informed the investigating officer that she had overheard the conversation of accused Ramesh @ Phai and his friends after 1-2 days of the incident and during the said conversation, accused Ramesh @ Phai was stating " Mar gayi na saali kutiya us chokare par aajkal kuch jayada he lattoo ho gayi thi aur randi saali dhandha karne lag gayi thi lakin saali ko mene chaku markar sabak sikhana chaha tha pata nahi kese mer gayi, uske merne ka yaar dukh too hai akhir mujhe bhee too usse payar tha."
(v) It was alleged that on October 18, 2012 accused surrendered himself before the Court of concerned Metropolitan Magistrate. Accordingly, he was interrogated and arrested after taking permission. At his pointing out, one blood stained knife was recovered from Ramjas Sports Complex, Bheel Basti. At his pointing out, one black colour jeans pant and checkdar shirt were also recovered from his rented room located at C-1/148, Janak Puri, Delhi. It was alleged that he was wearing the said clothes at the time of incident.
2. After completing investigation, challan was filed against the accused before the Court of learned Metropolitan Magistrate on January SC No. 18/13 Page 3 of 26 State Vs. Ramesh @ Phai 14, 2013 for the offence punishable under Section 302 IPC.
3. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Court of Sessions on January 22, 2013. Thereafter, case was assigned to this Court on January 24, 2013. Accordingly, case was registered as Sessions Case No. 18/2013.
4. Vide order dated February 22, 2013, a charge for the offence punishable under Sections 302 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 25 witnesses:-
PW1 Constable Kali Charan, joined investigation with PW18 PW2 Ms. Savitri, to prove the extra judicial confession PW3 Sh. Ashish @ Ashu, nephew of deceased but turned hostile PW4 Gyan Ram, formal witness, identified the dead body PW5 ASI Ajaib Singh, duty officer, proved the DD No.20A PW6 ASI Jai Chand, duty officer, proved the DD No.8A, DD No. 10A, DD No. 11A and FIR PW7 Sh. Bansi Lal, formal witness, took the injured to the hospital PW8 Sh. Prem Kumar, formal witness, informed the SC No. 18/13 Page 4 of 26 State Vs. Ramesh @ Phai police control room PW9 Sh. Raju, material witness but turned hostile PW10 SI Dhan Singh, in-charge of Crime Team PW11 Insp. Mahesh Kumar, proved the scaled site plan PW12 HC Jitender, proved PCR form No. 1 PW13 HC Tara Chand, photographer, proved the photographs PW14 Sh. Vijay, husband of deceased but turned hostile PW15 Mrs. Alka, relative of deceased but turned hostile PW16 Const. Ramesh, formal witness, deposited the exhibits with FSL Rohini PW17 HC Vijay Pal Singh, MHC(M) PW18 SI Padam Singh, first investigating officer PW19 Dr. Jyoti, proved the post-mortem report PW20 Dr. Naveen Aggarwal, proved the MLC of deceased PW21 Sh. Naresh Kumar, Sr. Scientific Officer, Biology, proved the FSL report PW22 SI Sunil, joined investigation with PW18 PW23 Insp. Dalbir Singh, investigating officer PW24 HC Ashok Kumar, formal witness PW25 HC Sanjay, formal witness
6. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all incriminating evidence led by the prosecution and submitted that he has been falsely SC No. 18/13 Page 5 of 26 State Vs. Ramesh @ Phai implicated in this case. However, he refused to lead evidence in his defence.
7. Learned counsel appearing for the accused sagaciously contended that in order to prove the motive to commit the offence, prosecution has examined PW14 Vijay, husband of deceased but he did not support the prosecution case as he turned hostile completely, thus, it was argued that prosecution has failed to prove the motive to commit the murder. It was further submitted that PW3 Ashish and PW9 Raju were witnesses of last seen but they also turned hostile and did not support the prosecution case in any manner, thus, it was urged that the testimony of above said witnesses is not helpful to the prosecution to bring home the guilt of accused. It was further contended that PW2 Savitri was another star witness of prosecution as according to prosecution case, accused had made an extra judicial confession before her but astutely contended that no reliance can be placed on her deposition as she is not a reliable witness. It was submitted that as per prosecution version, PW2 Savitri informed the police about the alleged extra judicial confession on October 8, 2012 whereas she deposed that accused was in the custody of police when she visited the police station to inform about the alleged extra judicial confession and it is admitted case of the prosecution that accused was arrested only on October 18, 2012. It was further contended that there are material contradictions between the deposition of PW2 Savitri and investigating officer, which also make the said piece of evidence unreliable.
8. Learned counsel appearing for the accused further perspicaciously contended that in order to prove the guilt of accused, prosecution has relied upon the recovery of one blood stained knife and clothes of accused. It was contended that recovery is quite doubtful as no SC No. 18/13 Page 6 of 26 State Vs. Ramesh @ Phai effort was made to pick up chance print from the alleged knife. Even prosecution has also failed to connect the knife with the commission of offence. There is no admissible evidence on record that blood stains found on the knife belonged to the deceased. It was further submitted that the recovery of clothes is also quite doubtful. Even there is no evidence to show that the said clothes were having any blood stains. Even at the time of recovery, no effort was made to join any public independent witness. It was further contended that there was inordinate delay in sending the copy of FIR to the Illaqua Magistrate and during trial, prosecution has failed to furnish any explanation whatsoever, thus it is proved that the FIR had been recorded after due deliberation and consultation, hence prosecution case becomes doubtful and it requires close scrutiny.
9. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that there is no deliberate delay on the part of investigating officer in sending the copy of FIR to learned Illaqua Magistrate. Even if there is any delay in sending the copy of FIR to the Illaqua Magistrate, same is not fatal to the prosecution case in any manner. However, he candidly admitted that PW3 Ashish, PW9 Raju, both nephews of deceased and PW14 Vijay, husband of deceased turned hostile and did not support the prosecution case but it was argued that there is no reason to disbelieve the testimony of PW2 who overheard the extra judicial confession made by the accused. It was submitted that since PW2 had no enmity with the accused, she had no reason to depose falsely against the accused. It was further contended that blood stains found on the knife were of human and the same was recovered at the pointing out of accused pursuant to the information divulged by him in his disclosure statement, thus there is no reason to disbelieve the recovery. It was submitted that since human blood stains were found on the blade of knife, prosecution has SC No. 18/13 Page 7 of 26 State Vs. Ramesh @ Phai succeeded to connect the knife with the offence in question. However, he fairly conceded that no blood stain was found on the clothes of the accused but swiftly added that since accused had washed the clothes several times, blood stains could not be found from his clothes.
10. I have heard rival submissions advanced by learned counsel for both the parties at length, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that neither of the parties has cited any case law in support of his contentions.
Delay in sending the copy of FIR to Illaqua Magistrate:
11. First question emerges as to whether there is any delay in sending the copy of FIR or not?
12. As per prosecution version, the alleged incident had taken place on September 25, 2011 at about 2:30 A.M and rukka was sent at about 5:30 AM. Accordingly, FIR was registered at about 6 A.M. Prosecution has also filed the copy of FIR bearing the endorsement of learned Link Metropolitan Magistrate and said FIR is marked Ex. PW6/C. Bare perusal of the said endorsement reveals that learned Link Metropolitan Magistrate had received the copy of FIR only on September 26, 2012 at about 11:20 A.M. Thus, it becomes clear that there is a delay of about 29 hours in sending the copy of FIR to Illaqua Magistrate. During trial, prosecution has failed to furnish any explanation whatsoever to explain the said delay.
13. Now question arises what is the effect of above-said unexplained delay. This issue was dealt by the Hon`ble Apex Court in case SC No. 18/13 Page 8 of 26 State Vs. Ramesh @ Phai Bijoy Singh v/s State of Bihar, AIR 2002 SC 1949 and relevant para reads as under:-
Para 7. "Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157, Cr. P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
(emphasis supplied)
14. Since in the instance case prosecution has failed to furnish any explanation whatsoever to justify the said delay, in the light of above settled proposition of law, prosecution case is required to be examined minutely by the Court to ensure itself as to whether any innocent person has been implicated in the crime or not?
Testimony of PW3, PW9 and PW14:
SC No. 18/13 Page 9 of 26State Vs. Ramesh @ Phai
15. Now coming to the testimony of PW14 Vijay, husband of deceased.
16. Prosecution has set up a case with the aid of statement of Vijay (PW14) that accused had intimacy with his wife. PW14 Vijay and his wife Geeta (since deceased) used to ask the accused not to visit their house and due to that reason accused had committed the said offence. However, when PW14 Vijay graced the witness box, he did not support the prosecution case in any manner. Though he was cross-examined in detail by learned Additional Public Prosecutor, but nothing could be extracted during his cross-examination which may help the prosecution to prove the prosecution version, thus the testimony of PW14 is not helpful to the prosecution in any manner to connect the accused with the alleged incident.
17. Now coming to the testimony of PW3 Ashish and PW9 Raju, both nephews of deceased.
18. Prosecution has set up a case that PW9 Raju chased the assailant and the same was witnessed by PW3 Ashish. However, when they entered the witness box, both of them turned hostile and did not support the prosecution case in any manner. PW9 Raju deposed that after hearing scream of deceased, he came down stairs and saw that his chachi Geeta (since deceased) was lying in pool of blood and the light of her room as well as varanda were switched off. He further deposed that neither he saw any one there nor saw anyone while escaping. Though PW9 Raju was cross-examined in detail by learned Additional Public Prosecutor, but nothing could be extracted in his cross-examination which may help the prosecution to prove the culpability of accused. Similarly, PW3 Ashish also SC No. 18/13 Page 10 of 26 State Vs. Ramesh @ Phai deposed that he did not see that PW9 Raju was chasing someone in the varanda. Though he admitted that he had seen Geeta, (since deceased) in the pool of blood in varanda but he failed to support the prosecution case that he had seen PW9 chasing the assailant. Thus, the testimony of PW3 Ashish is also not helpful to the prosecution in any manner to connect the accused with the alleged incident.
Extra-judicial confession:
19. Now coming to the next pivotal question as to whether any reliance can be placed on the testimony of PW2 Savitri who had allegedly overheard the extra judicial confession made by the accused before his friends relating to his involvement in the commission of murder?
20. Before dealing with said issue, I deem it appropriate to refer to the settled proposition of law over the evidentiary value of extra judicial confession. This issue was dealt with by the Hon`ble Apex Court in Sahadevan v/s State of Tamil Nadu, (2012) 6 SCC 403. Para 14 and 16 are relevant and same are reproduced as under:
14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.SC No. 18/13 Page 11 of 26
State Vs. Ramesh @ Phai
16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-
judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
(emphasis supplied)
21. In the light of above settled proposition of law, testimony of PW2 Savitri shall be analysed.
SC No. 18/13 Page 12 of 26State Vs. Ramesh @ Phai
22. Prosecution has set up a case that PW2 Savitri had overheard the conversation of accused and his friends before whom he was saying "saali mar gayi, mein nahi chahata tha ki mar jayegi, saali lattoo ho gayi thi, saali akarti rehti thi, chaku mar diya" PW2 Savitri in her testimony deposed that she had overheard the above-said confession about 2-3 days of the incident at about 5 PM while she was going to dispensary to take medicine through park located in the colony. Indisputably, the alleged incident had taken place on the intervening night of September 24, 2012 and September 25, 2012, it means that she had overheard the said extra judicial confession either on September 26, 2012 or September 27, 2012. She further deposed that after overhearing the above-said extra judicial confession, she did not disclose the same to anyone. However, after 10 days, she went to the police station and informed about the same to the police officer who met her in the police station and she stayed in the police for about 30 minutes. It means that she had informed the police about the said extra judicial confession either on October 6, 2012 or on October 7, 2012. However, prosecution has set up a case that she had informed the police only on October 8, 2012. Since, PW2 Savitri is not an educated lady, one can presume that she might have committed an error in calculation and probably she visited the police station on October 8, 2012 and not on October 6, 2012 or October 7, 2012. However, in her cross-examination, she candidly admitted that when she went to the police station to disclose about the said confession, accused was in the police station and at that time she had identified the accused. She further testified that police had shown her 3-4 other persons in the police station and she told the police that they were not the persons who were sitting under tree in the park. This shows that when PW2 Savitri went to the police station after 10 days of hearing the alleged extra judicial confession, accused was present in the police station. But her testimony to SC No. 18/13 Page 13 of 26 State Vs. Ramesh @ Phai that extent is contrary to the prosecution case as prosecution case is that accused had surrendered himself before the Court and he was arrested only on October 18, 2012. If accused had surrendered on October 18, 2012, there was no occasion for PW2 Savitri to identify the accused in the police station on October 8, 2012. Admittedly, it is not a case of prosecution that PW2 Savitri had visited the police station on October 18, 2012. In these circumstances, a grave suspicion arises about the visit of PW2 in the police station on October 8, 2012.
23. Further, PW2 Savitri deposed that the park was small and there is a masjid behind the park. Accused was sitting under a tree in the said park. There is iron grill boundary/fences and after grill there was plantation and the height of plantation was about 4 feet. There were two gates in the said park. One gate was located behind the masjid whereas another gate was on another side. She further deposed that accused was sitting about 5-6 paces away from the gate located behind masjid. On the contrary, PW23 Inspector Dalbir Singh in his cross-examination deposed that on October 8, 2012 between 4 P.M to 5 P.M, he along with his driver reached the said park to verify where accused was sitting and from where PW2 Savitri had overheard the said extra judicial confession and further deposed that he remained in the park for about 10 minutes. He further deposed that there was no gate in the park as it was an open park. There was no hedge in the park and masjid was located at the distance of about 40-50 metres away from the said park. The area of park was about 200-300 square yards. He further admitted that there was no tree in the said park. He further deposed that he visited the park to arrest the accused. Admittedly, he did not call PW2 at the time of alleged visit, thus PW23 was not in a position to ascertain from where PW2 had overheard the alleged confession. It means that he did not make any effort to SC No. 18/13 Page 14 of 26 State Vs. Ramesh @ Phai ascertain where accused was sitting at the time when PW2 allegedly overheard the said extra judicial confession. If there was no tree in the park as deposed by PW23 Insp. Dalbir Singh, it means that the testimony of PW2 Savitri becomes doubtful that accused was sitting under the tree when he was talking with his friends and before whom he made an extra judicial confession.
24. PW2 Savitri deposed that she had overheard the alleged extra judicial confession at about 5 P.M and she also visited the police station after about 10 days at about 5 P.M whereas PW23 Insp. Dalbir Singh deposed that PW2 Savitri visited the police station on October 8, 2012 between 1 PM to 1.30 P.M. This inconsistency also creates a doubt about her visit to police station on October 8, 2012.
25. PW23 in his cross-examination admitted that he did not find any special fact to come to the conclusion that PW2 Savitri was speaking truth but he believed her because there was no reason to disbelieve her. He further deposed that though he asked from PW2 Savitri for not coming to police station earlier and she told him that she did not disclose the same to anyone previously because she became scared. But she did not tell with whom she became scared. This shows that PW23 did not make any sincere investigation before placing reliance on the version of PW2 Savitri.
26. As per the testimony of PW2 Savitri, accused had made the above-said extra judicial confession when he was talking with his 4-5 friends. But during investigation, no sincere effort was made to identify the said 4-5 persons and no effort was made to verify whether accused had made any such extra judicial confession before them or not.
SC No. 18/13 Page 15 of 26State Vs. Ramesh @ Phai
27. Considering the above discussion, I am of the considered opinion that serious doubts have arisen about the alleged extra judicial confession, thus, I am of the considered opinion that no reliance can be placed on the said piece of evidence.
Recovery of knife:
28. Now coming to the next important piece of evidence i.e. recovery of knife.
29. In this regard, the testimony of PW18 SI Padam Singh and PW23 Insp. Dalbir Singh are relevant.
30. Prosecution has set up a case that accused had made a disclosure statement on October 18, 2012 in the court premises wherein he disclosed that he could get recovered the alleged knife from Ramjas ground. Thereafter, on October 19, 2012, he led the police party to the said ground and got recovered the knife. As per prosecution version, knife had blood stains and blood was of human.
31. PW18 SI Padam Singh in his cross-examination deposed that the said knife was lying at the distance of about 2-4 feet away from the boundary wall and it was lying in the bushes and the height of bushes was between 4-5 feet. On the contrary, PW23 Insp. Dalbir Singh deposed that the said knife was lying at the distance of about 5-6 inches away from the boundary wall and it was concealed in grass and knife was not visible. Thus, it is not clear whether knife was recovered from the grass as deposed by PW23 Insp. Dalbir Singh or from the bushes as deposed by PW18 SI Padam Singh.
SC No. 18/13 Page 16 of 26State Vs. Ramesh @ Phai
32. Both the witnesses admitted in their testimony that watchman was present in the ground but admitted that they did not call the watchman at the time of recovery of knife. PW23 Insp. Dalbir Singh deposed that they entered the ground in Gypsy from Preetpuri side gate but stopped their gypsy about 60-70 metres prior to the place of recovery because there was a small gate on the way through which gypsy could not go. Thus, as per the testimony of PW23 Insp. Dalbir Singh gypsy was stopped about 180-210 feet prior to the place of recovery whereas PW18 SI Padam Singh deposed that they stopped the gypsy just 40-50 paces prior to the bushes from where knife was allegedly got recovered. PW18 SI Padam Singh further deposed that the key of the gate of Ramjas ground was in the gypsy itself and they opened the gate with the said key. However, he further deposed that key of second gate was with the guard and clarified that the gates are meant for the entry of vehicles whereas public persons could enter the ground from so many points as boundary was was broken at several places. But PW23 Insp. Dalbir Singh was silent that the key of the gate was with them or they opened the gate with the said key.
33. From their testimony, it also becomes clear that no effort was made to call any public person to join the recovery proceedings. Even no effort was made to summon the crime team. Admittedly, investigating officer reached there to recover a knife, which was used in the commission of heinous crime i.e. murder. Despite that investigating officer did not deem it appropriate either to call crime team before proceeding to the place of recovery or to summon the crime team after the recovery of the knife. Had the crime team be summoned or had the crime team found any finger print on the said knife it would have certainly rendered invaluable assistance to the prosecution to connect the knife with the accused but surprisingly no such effort was made without any reasonable excuse.
SC No. 18/13 Page 17 of 26State Vs. Ramesh @ Phai
34. Before placing any reliance on the alleged recovery prosecution is also duty bound to connect the recovered knife with the accused as well as with the commission of offence.
35. Admittedly, no finger print of the accused is found from the said knife. Even no attempt was made in this regard. Since, no attempt was made, it means that investigating officer had attempted to withhold the best evidence from the Court, thus adverse inference shall be drawn against the prosecution.
36. As per the seizure memo Ex. PW18/11, blood stains were found on the blade of the knife. During investigation, the said knife was sent to FSL for examination. PW21 Sh. Naresh Kumar, Sr. Scientific Officer, Biology proved the FSL report and deposed that blood found on the blade of the knife was of human but the grouping of the blood could not be ascertained due to non-reaction in the blood. Since, grouping could not be ascertained, it cannot be said with certainty that the blood stains found on the knife were of deceased.
37. PW21 in his cross-examination deposed that blood was detected on sharp edge of the blade of knife from its tip to its handle and the blood was within 1 cm area of the blade. But he failed to clarify whether blood was detected on both the sides of the blade or one side of the blade. He further deposed that he did not examine the knife to ascertain as to whether any human tissue was available on the blade or not as no such request was made. He further deposed that if there is repeated stabbing, it is quite possible that tissues may appear on the blade of knife but put a caveat that it is not necessary in all cases. He further deposed that if knife is stabbed to the depth of 10 cm, there will be every possibility that blood SC No. 18/13 Page 18 of 26 State Vs. Ramesh @ Phai would appear on both sides of the blade to the length of 10 cm.
38. Indisputably, as per the post mortem report Ex. PW19/A, victim had sustained three stabbed injuries and one incised wound and the length of one stabbed wound is upto 9 cm. As per the death summary report, the depth of the stabbed wound is almost 10 cm. Thus, as per the testimony of PW21 Sh. Naresh Kumar, there must be blood stains on both sides of the blade of knife but it is not so.
39. No doubt, PW19 opined that such type of injuries as found on the dead body could be possible by the recovered knife and by any other weapon similar to that. Thus, from her testimony it cannot be conclusively proved that injuries found on the dead body were only caused by the means of recovered knife. Even PW19 in her cross-examination categorically deposed that if injuries as mentioned in the autopsy report be caused by the recovered knife Ex. P2, blood stains would appear on the blade as well as handle of the knife. Admittedly, in the instant case, no blood stain was found on the handle of the knife.
40. From the above discussion, it becomes clear that firstly no effort was made to join public independent witness either at the time of disclosure statement or at the time of recovery of the weapon of offence despite the fact that public persons were available. Similarly, no effort was made either to get video-graphed or photographed the recovery of weapon of offence. Even crime team was not called to make necessary effort to lift any chance print from the recovered knife. There is also inconsistency between the testimony of PW18 SI Padam Singh and PW23 Insp. Dalbir Singh on the points of manner in which the alleged recovery was affected. Further, prosecution has also failed to connect the knife with the offence in SC No. 18/13 Page 19 of 26 State Vs. Ramesh @ Phai question as there is no evidence to establish that blood stains found on the knife was of the deceased. Mere fact that some blood stains were found on the knife is not sufficient to conclude that it was of deceased. Further, the blood was found only on the edge of the knife within 1 cm of the area of the blade whereas PW19 Dr. Jyoti and PW21 Sh. Naresh Kumar categorically deposed that considering the nature of injuries, blood stains should have been appeared on both sides of the knife. PW19 Dr. Jyoti categorically deposed that blood stains should have also appeared on the handle of the knife. Admittedly, it is not the prosecution case that accused had either washed off the knife or tried to mop the knife before throwing at the recovered place. Even during interrogation of the accused no such effort was made to ascertain the said fact from the accused.
41. In the light of above discussion, I am of the opinion that the recovery is doubtful and even if we assume that the alleged knife was recovered at the pointing out of accused even then prosecution has failed to connect the knife with the alleged incident. Thus, in my opinion the alleged recovery is not helpful to the prosecution to prove the culpability of the accused.
Recovery of clothes:
42. Though the alleged recovered clothes do not bear any blood stain mark, yet prosecution even failed to establish that at the time of commission of offence, accused was wearing said clothes. Admittedly, none of the witnesses testified in the Court that recovered clothes were worn by the accused at the time of commission of offence. Moreover, there is inconsistency between the testimony of PW18 and PW23 on the point of recovery. It is admitted case of prosecution that accused had got recovered SC No. 18/13 Page 20 of 26 State Vs. Ramesh @ Phai the said clothes from his rented room i.e. C-1/148 Janak Puri. Both witnesses deposed that when they reached there, the room was found locked. PW18 SI Padam Singh deposed that accused had opened the door of the room by taking out key of the room after opening window of the room. Thus, as per the testimony of PW18 SI Padam Singh key of the room was lying inside the room and accused had taken out the key by opening the window. But PW23 Insp. Dalbir Singh deposed that key of the room was lying below the flower-pot and accused had taken out the key underneath the flower-pot and opened the door. Thus, even prosecution failed to establish from where key was taken out. Admittedly, the said key was not seized by the investigating officer. PW23 Insp. Dalbir Singh deposed that after recovery, key was placed at the same place. Similarly, PW18 SI Padam Singh deposed that after recovery, key was placed inside the room from the window. Admittedly, when the alleged recovery was effected, no other person was found in the said room. It is not a case of prosecution that accused was residing there along with his family. If nobody was residing there or accused was living there alone, I am of unable to understand for whom the key was left there. Was it not the duty of the State to protect the property of accused who is in its custody? By leaving the key there, has State not caused endanger to the property of accused? During investigation no effort was made even to record the statement of landlord to establish the fact that accused was residing there as a tenant. Even no effort was made to join any occupant of the premises during the entire proceedings. In nutshell no evidence was collected even to establish that accused had any connection with the said premises.
43. Considering the inconsistency between the testimony of PW18, SI Padam Singh and PW23, Insp. Dalbir Singh, I am of the view that no reliance can be placed on the said recovery.
SC No. 18/13 Page 21 of 26State Vs. Ramesh @ Phai Manner in which the statement of PW9 Raju was recorded:
44. Prosecution has set up a case that PW9 Raju had chased the accused and his statement was recorded by PW18 SI Padam Singh after sending the rukka as prior to that he did not meet with the investigating officer. In this regard, the testimony of PW18 SI Padam Singh is relevant.
45. PW18 SI Padam Singh deposed in his examination-in-chief that after sending the rukka family members of injured i.e. PW15 Alka and PW3 Ashish met him in the hospital and they informed him that PW9 Raju had chased the assailant. He further deposed that at that time, PW9 Raju was pumping the heart of injured as per the directions of doctor. He further deposed that when doctor relieved PW9 Raju, he got recorded his statement. If we presume that there is any substance in the testimony of PW18, it means that he intends to convey that he did not see the injured prior to sending the rukka otherwise he would have come to know that PW9 Raju was pumping the heart of the injured. It is admitted case of the prosecution that rukka was sent from the hospital at 5:30A.M. PW18 SI Padam Singh in his cross-examination deposed that he had recorded the statement of PW9 Raju at about 5:30 AM. What a co-incidence! As soon as PW18, SI Padam Singh sent the rukka, PW9 Raju stopped pumping heart of the injured and got recorded his statement to the investigating officer (PW18). Is it just a co-incidence or a story was invented to justify the fact why rukka was not prepared on his statement if he was available in the hospital. Since, PW18 SI Padam Singh was the first investigating officer, it is seldom to believe that he would have not seen the injured personally. If he had seen the injured personally, it means that he would have also seen SC No. 18/13 Page 22 of 26 State Vs. Ramesh @ Phai PW9 Raju as he himself deposed that Raju was pumping the heart of the injured. Further, the testimony of PW18 SI Padam Singh to the extent that no family member met him in the hospital is also unbelievable. It is admitted case of the prosecution that injured was taken to the hospital by PW3 Ashish, PW9 Raju and PW7 Bansi Lal. It is also admitted case of the prosecution that PW18, SI Padam Singh reached the hospital prior 4 P.M as in his cross-examination, he deposed that he remained at the spot till 3:30 AM and came to know that the injured had already been taken to RML hospital. The distance between Anand Parbat and RML hospital could easily be covered within half an hour particularly in odd hours i.e. 3:30 A.M. From MLC Ex. PW20/A it is established that injured was brought to the hospital at about 3:45 AM. PW7 Bansi Lal in his cross examination deposed that they remained in the hospital between 7 AM to 8 AM. Thus it is seldom to believe the testimony of PW18 SI Padam Singh that no family member met him in the hospital prior to 5:30A.M. In these circumstances, it appears more plausible that he had invented a story that after sending rukka PW3 Ashish and PW15 Alka informed him that PW9 Raju had chased the assailant and at that time PW9 Raju was pumping the heart of the injured.
Inconsistency between the version of PW18 and crime team report:
46. Prosecution case is that the crime team had inspected the place of occurrence and as per the crime team report Ex. PW10/A spot was inspected between 4 A.M to 4:45 AM. PW10 SI Dhan Singh, in-charge of crime team deposed that they reached the spot at about 3:30 A.M and at that time SI Padam Singh (PW18) along with his staff met there. Similarly, PW13 HC Tara Chand, photographer deposed that they reached the spot by 4 A.M and when reached there, SI Padam Sing with his staff met there.
SC No. 18/13 Page 23 of 26State Vs. Ramesh @ Phai It is settled law that the documentary evidence will prevail over the oral testimony. From the testimony of PW10 SI Dhan Singh and PW13 HC Tara Chand along with their report Ex. PW10/A, it becomes clear that the crime team had inspected the spot between 4 AM to 4:55 A.M. As per the testimony of PW18, SI Padam Singh, he remained at the spot till 3:30 A.M. It means that when crime team inspected the place of occurrence, PW18 SI Padam Singh was not present. Thus, the testimony of PW10 SI Dhan Singh and PW13 HC Tara Chand to the extent that they inspected the place of occurrence in the presence of PW10 SI Dhan Singh becomes doubtful. Similarly, PW18 SI Padam Singh in his examination-in-chief deposed that when he returned to the spot from the hospital, crime team met him and he had lifted the exhibits from the place of occurrence. In his cross- examination, he clarified that he reached the spot at about 7 A.M. It means that he had lifted the exhibits at about 7 A.M. and members of crime team were present at that time. However, when a court question was put to him, did crime team take photographs of the spot in his presence? He replied that crime team did not take photographs of the spot in his presence. He further deposed that he had seized the exhibits as per the direction of in- charge Crime Team but he was not present there when he seized the exhibits and clarified that he had seized the exhibits after 7 A.M. The testimony of PW18, SI Padam Singh is paradox because on the one hand, he deposed that he seized the exhibits as per the directions of in-charge Crime Team but simultaneously deposed that he was not present there. When the attention of PW18 was drawn towards the report Ex. PW10/A and attempt was made to seek clarification about the inconsistency in his testimony about the timing mentioned in the report, he deposed that PW10 SI Dhan Singh along with his team remained at the spot till 7:15 A.M. Admittedly, it is not the prosecution case. Moreover, it is not clear what crime team was doing between 4:55 A.M till 7 A.M at the spot when they SC No. 18/13 Page 24 of 26 State Vs. Ramesh @ Phai had already inspected the spot. This shows that PW18, SI Padam Singh made a futile attempt to justify his deposition that he had lifted the exhibits in the presence of in-charge Crime Team. Such type of lapses are not appreciable in such a heinous crime.
Delay in sending the copy of FIR:-
47. As already discussed that there was a delay of 29 hours in sending the copy of FIR to Illaqua Metropolitan Magistrate and during trial, prosecution has failed to come forward with any explanation whatsoever to justify the said inordinate delay. It is pertinent to state that there is specific column No. 15 in FIR wherein date and time of dispatch of FIR to the Court is to be mentioned. But is it noticed by this Court that this column always remains blank invariably. This itself shows that the duty officer, investigating officer and Station House Officer are not following the law in its letter and spirit. In heinous crimes like murder, delay in sending the copy of FIR to Illaqua Magistrate plays a significant role. This Court has observed similar lapses in numerous other cases. Needless to say such deliberate lapses create unnecessary problem to the prosecution during trial. There may be two reasons of delay in sending the copy of FIR to the Illaqua Magistrate first that FIR was not recorded at the time as depicted in the FIR; second there was an deliberate attempt on the part of an erring police official. Both the instances are not good for the administration of justice. To curb such type of manipulation and fabrication, one has to set his house in order and to take appropriate action against the erring officials. Accordingly, Commissioner of Police is directed to fix responsibility for the said inordinate delay in sending the copy of FIR to Illaqua Magistrate and take appropriate action as he deems fit under intimation to this Court.
SC No. 18/13 Page 25 of 26State Vs. Ramesh @ Phai Conclusion:
48. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused beyond the shadow of all reasonable doubts for the offence punishable under Section 302 of Indian Panel Code, thus I hereby acquit the accused Ramesh @ Phai thereunder.
Announced in the open court On this 7th day of February, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI/sv SC No. 18/13 Page 26 of 26