Delhi High Court
Amit Kumar vs The State (Nct Of Delhi) on 31 July, 2017
Author: Chander Shekhar
Bench: G. S. Sistani, Chander Shekhar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. A. No.174/2017
Reserved on: 10th July, 2017
% Date of Decision: 31 st July, 2017
AMIT KUMAR .....Petitioner
Through: Mr. Rajender Prasad, Advocate
Versus
THE STATE (NCT OF DELHI) .....Respondent
Through: Mr. Rajat Katyal, APP for the State
CORAM:
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
CHANDER SHEKHAR, J.
The appellant has filed the present appeal under Section 374 of the Code of Criminal Procedure 1973 (Cr.P.C.), against the impugned judgment, dated 10.02.2015, and order of sentence, dated 12.02.2015, respectively passed by Sh.Sandeep Yadav, Additional Sessions Judge-5, South District Court, Saket, New Delhi in case FIR No.359/2009, P.S.- Vasant Vihar, whereby the appellant has been convicted under Section 302 of the Indian Penal Code (IPC), 1860 and sentenced to undergo simple Crl. A. 174/2017 Page 1 of 30 imprisonment for life and fine of Rs.5,000/- and in default of payment of fine further simple imprisonment for one year.
2. The case of the prosecution as noticed by the trial court is that Sujeet, elder brother of complainant Barjeet, was married with one Jyoti on 15.01.04. Out of this wedlock, one boy namely Kunal was born in the year 2006. In December 2008, Jyoti w/o Sujeet went with appellant Amit and left her son Kunal with Sujeet. Complainant Barjeet, his elder brother Sujeet and appellant Amit, were residing at Moti Lal Camp, DDA Flats, Munirka, New Delhi. When Jyoti came back, a panchayat was held in the area and as per the decision of the panchayat, marriage between Sujeet and Jyoti was dissolved and therefore Jyoti started living with Amit in slums. Appellant Amit used to taunt and abuse Sujeet on this issue. On 10.11.09 at about 10.30 pm Barjeet (brother of the deceased) and his elder brother Sujeet, were plucking leaves from tree for their goat on the boundary wall of Health Society. Sujeet was standing at a distance of 10-15 steps from complainant Barjeet. At that time, appellant Amit came on a grey colour scooter and hit against Sujeet, as a result of which Sujeet fell down, thereafter, appellant Amit shouted that he will not spare Sujeet, as Sujeet Crl. A. 174/2017 Page 2 of 30 was intending to snatch Jyoti from him. Appellant Amit caught Sujeet by collar with his left hand and assaulted on his neck repeatedly with a meat cutting knife. Sujeet after receiving first knife blow from Amit asked Amit to leave him but Amit did not leave Sujeet. Appellant Amit hit Sujeet on his face with the heal of his shoes when complainant Barjeet came down from the wall and rushed to save his brother, appellant Amit rushed towards Barjeet with the knife to hit him. Barjeet ran away to his house and called his family members to the spot. By that time, appellant Amit had fled away from the spot with the scooter. Barjeet categorically stated that appellant Amit has killed his brother on account of previous enmity regarding Jyoti.
3. The manner in which the crime was detected and investigated stands detailed in Police report filed under Section 173(2) of the Code of Criminal Procedure. Thereafter, information regarding this incident was received in Police Station Vasant Vihar vide DD no. 21-A and thereupon PW-13 SI Sujit along with Ct. Mahesh reached cremation ground in front of Moti Lal Nehru Camp, DDA Flats, Munirka and found one person lying in pool of blood in front of the gate of cremation ground. Police officials found deep wound with sharp edged weapon on the neck of the injured. Inquiry revealed the name of the injured as Sujeet, s/o. Naubat Ram, after recording Crl. A. 174/2017 Page 3 of 30 the statement of Barjeet, dead body was sent to Safdarjung Hospital where the concerned doctor declared Sujeet as brought dead. Thereafter, a case under Section 302 IPC was registered. ASI Surjit lifted blood sample of deceased and earth control from the spot. Blood stained mat of scooter was lifted from near the dead body and one sleeper was also lifted and seized. Thereafter, the investigation of this case was transferred to Inspector Kishore Kumar and appellant Amit was arrested from Nelson Mandela Road Near Aggarwal Sweets Munirka based on the identification of Barjeet. Disclosure statement of appellant Amit was recorded. Appellant got recovered the knife and scooter used in the crime, blood stained pant, jacket, shoes of appellant which he was wearing at the time of commission of crime, and he was wearing the same clothes at the time of his arrest, were also seized. Post-mortem of the dead body was conducted, clothes of dead body and blood in gauze was preserved. In the post-mortem, the Doctor opined the cause of death as "hemorrhagic shock due to anti mortem injury to (Rt) common carotid artery produced by sharp edged weapon. Injury no. 1-3 are produced by sharp edged weapon. Injury no.1 is sufficient to cause death in ordinary course of nature. Investigating Officer also obtained subsequent opinion of the Doctor on the knife and the Crl. A. 174/2017 Page 4 of 30 concerned Doctor opined that injury no. 1, 2, 3 and 5 are possible by submitted weapon. Thereafter, Inquiry was conducted about the ownership of scooter no. DL3SK 1719 and it was found that the said scooter was registered in the name of Sunil Kumar. Sunil Kumar told the Investigating Officer that he had sold the said scooter to Manisha Kanti on 03.03.02. Inquiry further revealed that the appellant Amit had purchased this scooter from one Kabadi. On 19.11.09, scooter no. DL3SK 1719 was sent to FSL, Rohini for inspection, blood stains from front side of scooter and left side of dicky were lifted, after completion of investigation, charge sheet was filed in the Court. Appellant was charged u/s. 302 IPC on 10.02.10. Appellant pleaded not guilty and claimed trial.
4. To bring home the guilt of the appellant, the prosecution examined 19 witnesses in all. Statement of appellant was recorded under Section 313 Cr.P.C., wherein he pleaded false implication. During his examination under Section 313 Cr.P.C, appellant admitted that Jyoti was deserted by Sujeet and appellant was married with Jyoti. Appellant also admitted that a panchayat was held wherein a divorce was effected between Jyoti and Sujeet and thereafter, appellant Amit got married with Jyoti. However, appellant denied having ever fought with Sujeet regarding his marriage with Crl. A. 174/2017 Page 5 of 30 Jyoti. Appellant stated that on 10.01.09, he had gone to drop his grandmother (maternal) namely Shakuntala at JNU where she was working. Appellant further stated that he does not know how to drive a scooter. One defence witness namely Shakuntala was also examined on behalf of appellant.
5. Learned counsel appearing for the appellant has strongly urged before this court that the learned trial court has erred in passing the impugned judgment as the trial Court has wrongly appreciated the facts and passed the judgment and the order of sentence contrary to law. He also contended that the appellant has been falsely implicated in this case. It has been strongly urged by the learned counsel for the appellant before this court that the deposition of PW-3 Barjeet (Brother of the deceased) who is stated to be an eye witness in the present case, is highly doubtful since the incident did not take place in his presence, learned counsel for the appellant further submits that the recovery of the scooter has been planted in order to falsely implicate the appellant.
6. Per contra, Mr. Rajat Katyal, learned counsel for the State submits that the prosecution has been able to prove its case beyond any shadow of doubt.
Crl. A. 174/2017 Page 6 of 30
7. Learned counsel for the State submits that there was ample evidence available on record to bring home the charges against the appellant warranting him conviction. He submitted that the prosecution witness PW- 3 Barjeet had duly identified the appellant Amit.
8. PW-3 Barjeet, PW-11 SI Randhir Kumar, PW-13 SI Surjeet Singh, PW-14 Dr. Abhishek Yadav, PW-15 Ct. Suresh Kumar, Pw-18 Inspector Kishore Kumar, PW-19 Ms. Seema Nain, are the material witnesses in this case.
9. We have heard learned counsel for the parties, considered their rival submissions, examined the trial Court record and the testimonies of witnesses and considered the impugned judgment rendered by the trial Court.
10. In this case, on consideration of evidence and material placed on record and after considering the arguments advanced, we have found that the following circumstances were relied upon by the trial Court to convict the appellant:-
(i) Appellant Amit was married to Jyoti who was earlier the wife of the deceased (Sujeet) as per the decision of the Panchayat marriage between Sujeet and Jyoti was dissolved and Crl. A. 174/2017 Page 7 of 30 therefore, Jyoti had started living with Amit. Amit used to taunt and abuse Sujeet on this issue.
(ii) On 10.11.09 at about 10.30 pm Barjeet and his elder brother Sujeet were plucking leaves from a tree for their goat on the boundary wall of Health Society.
(iii) Thereafter, the appellant Amit came at the above-said place on a grey colour scooter and hit against Sujeet, as a result of which Sujeet fell down and appellant Amit assaulted on the neck of Sujeet with a meat cutting knife and hit Sujeet on his face with the heal of his shoes and killed Sujeet.
(iv) Dead body of the deceased was recovered and was sent to Safdarjung Hospital where the concerned doctor declared Sujeet as brought dead.
(v) Thereafter, a case under Section 302 IPC was registered.
(vi) Knife and scooter used in the commission of crime got recovered at the instance of the appellant Amit and the injuries found on the body of the deceased could have been caused by the same.
Crl. A. 174/2017 Page 8 of 30
(vii) Biological and Seriological evidence established that the blood detected was found to be of human origin blood group being ―O‖ which matched the deceased's blood group.
(viii) Recovery of blood stained pant, jacket, shoes; of appellant Amit which was worn by the appellant at the time of commission of crime, was also wearing the same clothes at the time of his arrest.
11. In order to deal with the contentions of both the parties, it would be appropriate to examine the testimonies as recorded and noticed by the trial Court of the material witnesses including PW-3 Barjeet (brother of the deceased), PW-5 HC Rajbir, PW-6 Chandi Prasad, PW-7 Smt. Murti, PW-8 HC Vinod Kumar, PW-11 SI Randhir Kumar, PW-13 SI Surjeet Singh, PW-14 Dr. Abhishek Yadav, PW-15 Ct. Suresh Kumar, PW-18 Inspector Kishore Kumar, PW-19 Ms.Seema Nain, which were strongly relied by the trial Court to convict the appellant.
12. PW-3 Barjeet, brother of deceased testified as an eye witness of the incident, who also deposed that in the year 2009, he was residing at S-99/207, Moti Lal Nehru Camp, Munirka, New Delhi, deceased Sujit was Crl. A. 174/2017 Page 9 of 30 his elder brother, deceased Sujit got married in the year 2004 with Jyoti, in the year 2006, a son was born out of the said wedlock, in the year 2008, Jyoti went away with Amit, there was quarrel between deceased Sujit and Amit on this ground every day, a panchayat was convened where a divorce was effected between the deceased and Jyoti, thereafter Jyoti continued to live with Amit. Even after, the divorce between deceased and Jyoti, appellant Amit kept on abusing and taunting the deceased. PW-3 Barjeet further deposed that he and his deceased brother Sujit came to the boundary wall of Health Centre near the cremation ground, PW-3 Barjeet was plucking leaves for his goat and his brother Sujit was standing at a distance of 10-15 steps. In the meantime, appellant Amit came on a grey colour two wheeler scooter and hit against deceased Sujit from behind, deceased fell down, appellant Amit drove the scooter over deceased and took out a meat cutting knife and stabbed deceased Sujit. PW-3 Barjeet got down from the wall and rushed to save his brother's life, the appellant ran towards him with a meat cutting knife to hit him and PW-3 Barjeet started running away to his house due to fear, at the time of being stabbed deceased Sujit asked Amit to spare him but appellant Amit said that he will not leave him on that day, appellant Amit also hit on the face of deceased with the heal of his Crl. A. 174/2017 Page 10 of 30 shoes, PW-3, returned to spot with his family members, by that time appellant Amit had ran away from the spot with his scooter. PW-3 Barjeet further deposed that he had made a call to police on 100 number, police came at the spot and carried out the proceedings and took photographs, police also collected blood stained earth control in plastic container with the help of cotton and seized the same vide seizure memo Ex. PW-3/A and Ex.PW-3/B, police also collected blood stained soil which was sealed in plastic container and was seized vide memo Ex.PW-3/C, police also seized sleepers of deceased Sujit vide memo Ex. PW-3/D. PW-3 Barjeet further deposed that the dead body of his brother was sent to Safdarjung hospital and his statement Ex.PW-3/E was recorded by police at the spot. Thereafter, appellant Amit was arrested vide arrest memo Ex.PW-3/F which bears signature of PW-3 Barjeet, thereafter, appellant Amit got recovered the knife from the roof of his house, Appellant Amit also got recovered the scooter which was used in the crime. According to PW-3 Barjeet, the Investigating Officer also recovered one pair of shoes of appellant Amit which he was wearing at the time of arrest, Investigating Officer also seized blood stained jacket of Amit which was sealed in pulinda, seized vide memo Ex.PW-3/K. PW-3 Barjeet further deposed that the Investigating Crl. A. 174/2017 Page 11 of 30 Officer also seized blue colour jacket, blood stained jeans of appellant which he was wearing at the time of commission of the offence as described by PW-3 Barjeet. PW-3 Barjeet identified blood stained gauze in the Court as Ex.P-I and Ex.P-I-A, the knife as Ex.P-3, blue colour jeans which appellant was wearing at the time of committing the crime as Ex.P-4, jacket of blue colour which appellant was wearing at the time of committing the crime as Ex.P-5, pair of brown coloured shoes which appellant was wearing at the time of committing the crime as Ex.P-6, piece of blood gauze as Ex.P-1-B, another blood in gauze as Ex.P-1-C.
13. PW-5 HC Rajbir testified that he took the case property of case i.e., sealed knife vide RC No.112/21 and gave the same to Autopsy surgeon at Safdarjung Hospital. As per the direction of Investigating Officer, PW-5 HC Rajbir Singh collected back sealed knife from the doctor along with his opinion and handed over the same to Investigating Officer vide memo Ex. PW-5/B.
14. PW-6 Chandi Prasad and PW-7 Smt. Murti testified about the Panchayat which had taken place to effect the divorce between Jyoti and the deceased. PW-7 Smt. Murti deposed that it was decided in the Panchayat Crl. A. 174/2017 Page 12 of 30 that Jyoti will not be kept by her husband and other family members and she was sent out of her matrimonial home.
15. PW-8 HC Vinod Kumar testified that he along with the investigating Officer took the scooter no.DL3SK 1719 vide RC No.118/21/09 to FSL, Rohini, blood stains were lifted from the scooter and memo Ex.PW-8/A was prepared to the effect. PW-10 W/ASI Sunita is the Duty Officer who registered FIR as well as DD No.21-A and proved the same in the Court.
16. PW-11 SI Randhir Singh (Retd) testified that appellant Amit along with one more person was arrested by him for the offence 107/151 Cr.PC when he after receiving DD No. 44-A reached the spot where appellant Amit was quarrelling with his neighbour Sanjay. Copy of kalandra u/s. 107/151 Cr.P.C. was proved by PW-11 as Ex. PW-11/A.
17. PW-13 SI (Rtd.) Surjit Singh deposed that DD No. 21-A was assigned to him and after receiving the same, he along with Ct. Mahesh reached the spot i.e, Moti Lal Nehru Campus Munirka in front of cremation ground, where a dead body was lying. PW-13 SI (Rtd.) Surjit Singh informed senior officials, SHO P.S. Vasant Vihar reached the spot, Crime Team was called and spot was inspected, dead body was sent to Safdarjung Hospital, MLC of deceased was obtained. PW-13 SI (Rtd.) Crl. A. 174/2017 Page 13 of 30 Surjit Singh prepared detailed ruqqa Ex. PW-13/A and got the case registered through Ct. Surender. PW-13 SI (Rtd.) Surjit Singh further deposed that he lifted the blood, blood stained control, etc. from the spot vide memo Ex. PW-3/A, Ex. PW-3/B, Ex. PW-3/C. PW-13 SI (Rtd.) Surjit Singh also seized chappal from the spot vide memo Ex. PW-13/D.
18. PW-14 Dr. Abhishek Yadav, Asstt. Professor, Deptt. of Forensic Medicine, Safdarjung Hospital, conducted postmortem on the dead body of deceased Sujit and gave his report Ex. PW-14/A. He in post-mortem report opined that cause of death was hemorrhagic shock due to ante mortem injury to right common carotid artery produced by sharp edged weapon. Injury no. 1, 2, and 3 were produced by sharp edged weapon. Injury no. 1 was sufficient to cause death in ordinary course of nature. He also deposed that dead body was wrapped in body bag, wearing yellow shirt, jeans, blue underwear and chappal. Clothes were blood stained at places, which were sealed and handed over to Investigating Officer with sample seal. PW-14 Dr. Abhishek Yadav further deposed that on 12.11.09, he had received an application with sealed pulinda regarding opinion for injury and weapon examination. PW-14 Dr. Abhishek Yadav after going through the postmortem report and thoroughly examining the Crl. A. 174/2017 Page 14 of 30 weapon, was of the opinion that injury no, 1, 2, 3, and 5 were possible by the submitted weapon.
19. PW-15 Ct. Suresh Kumar was posted as Constable in PS Vasant Vihar, on that day, he deposed that he along with Ct. Surender, was on patrolling duty on 10.11.09. PW-15 Ct. Suresh Kumar deposed that he along with Ct. Surender reached Moti Lal Nehru Camp where ASI Surjeet Singh and Ct. Manoj met them and they found that a dead body was lying at the gate of samshan ghat. PW-15 Ct. Suresh Kumar further deposed that they came to know the name of deceased as Sujit @ Kalu, brother of Sujit met police officials at the spot and Investigating Officer recorded his statement.
20. PW-16 HC Girdhar Singh, the photographer, took five photographs of dead body as per the direction of Investigating Officer and proved same as Ex. PW-16/1, 2 and 4 and negatives were proved as Ex. PW-16/5 (colly).
21. PW-17 Dr. Jashanpreet Singh, examined the deceased and deposed that Sujit was brought dead. PW-17 Dr. Jashanpreet Singh prepared the MLC Ex. PW-17/A and prepared the report Ex. PW-17/C. Crl. A. 174/2017 Page 15 of 30
22. PW-18 Inspector Kishore Kumar is the Investigating Officer of this case. PW-18 Inspector Kishore Kumar deposed that on 10.11.09 he was posted as Inspector in Police Station Vasant Vihar, investigation of this case was marked to him after registration of case, PW-18 Inspector Kishore Kumar reached the spot i.e, Moti Lal Nehru Camp. DDA Flats, Munirka, ASI Surjeet Singh along with his staff met PW-18 there, complainant also met PW-18 Inspector Kishore Kumar, ASI Surjeet Singh handed over sealed pulindas to PW-18, PW-18 Inspector Kishore Kumar prepared site plan Ex. PW-18/A on the pointing out of complainant Barjeet. PW-18 Inspector Kishore Kumar searched the appellant and at about 6 pm, appellant Amit Kumar was arrested from near Aggarwal Sweet, Nelson Mandela Road, at the time of arrest of appellant, complainant Barjeet and Ct. Mahesh were with Investigating Officer and complainant identified the appellant before his arrest, disclosure statement Ex. PW-18/C of appellant was recorded and he disclosed that he could get the scooter recovered by which he struck against deceased and the knife i.e, weapon of offence. Appellant further disclosed that he was wearing same clothes which he was wearing at the time of the incident. PW-18 Inspector Kishore Kumar further deposed that thereafter, appellant took PW-18 and other persons to jhuggi Crl. A. 174/2017 Page 16 of 30 no. S99/34, Moti Lal Nehru Camp, Munirka and got recovered the scooter no. DL3SK 1719, grey colour make Classic Bajaj which was parked outside his jhuggi which was seized vide memo Ex. PW-3/I, there were some blood stains on the front side of scooter, as well as on the dicky of the scooter. Appellant got recovered the knife which was used as weapon of offence from the roof of his jhuggi, the knife was blood stained, sketch of knife was prepared and it was seized vide memo Ex. PW-3/H, wearing pant of appellant i.e, blue colour jeans, wearing jacket of appellant which was blood stained and wearing shoes of dark brown colour make Panasonic of appellant were also sealed and seized by PW-18. PW-18 Inspector Kishore Kumar further deposed that on 11.11.09, he moved an application Ex. PW- 18/D to CMO, Safdarjung Hospital for conducting postmortem on the dead body of deceased, PW-18 Inspector Kishore Kumar conducted inquest proceedings Ex. PW-18/E, the dead body was identified by complainant vide his statement Ex. PW-3/N. After conducting post-mortem, the dead body was handed over to complainant.
23. PW-18 Inspector Kishore Kumar also testified that on 11.11.09, he had sent sealed pulinda containing the knife i.e. weapon of offence to Autopsy Surgeon for subsequent opinion vide application Ex.PW-18/G, Crl. A. 174/2017 Page 17 of 30 PW18 Inspector Kishore Kumar received subsequent opinion from the doctor Ex. PW-14/B. PW-18 Inspector Kishore Kumar further deposed that on 19.11.09, he had sent scooter no. DL3SK 1719 make Bajaj Chetak to FSL, Rohini for inspection and examination vide application Ex. PW-18/H. PW-18 Inspector Kishore Kumar correctly identified all the parcels and case properties in the Court viz. knife, jeans/pant of appellant, jacket of appellant, pair of shoes of appellant, scooter,etc.
24. PW-19 Ms. Seema Nain who is a Sr. Scientific Officer - Biology, FSL, Rohini, deposed that on 23.11.09, 11 sealed parcels were received in the office of Director FSL, vide letter no. 2005/SHO/Vasant Vihar dt. 10.11.09 in connection with the present case, same were marked to PW-19 for biological and seriological examination. PW-19 Ms. Seema Nain, Sr. Scientific Officer, further deposed that on examination, all the parcels were tallied with the sample seals provided in the forwarding authority letter and based on biological examination, blood was detected on Ex. 1, 2a, 2b, 2c, 2d, 3, 4, 5, 6, 7, 8, 10 and 11. It has also come in the deposition of PW-19 Ms. Seema Nain that on seriological examination, blood detected on Ex. 1, 2a, 2b, 2c, 2d, 3, 4, 5, 6, 7, 8, 10 and 11, is found to be of human in origin and blood group on Ex. 1, 2a, 2b, 2c and 7 is of ―O‖ group. PW-19 Crl. A. 174/2017 Page 18 of 30 Ms. Seema Nain, Sr. Scientific Officer, further deposed that blood group on Ex. 3, 4, 5, 6, 8, 9, 10 and 11 could not be ascertained due to no reaction on these exhibits. PW-19 Ms. Seema Nain, Sr. Scientific Officer, proved her biological report as Ex.PW-19/A and seriological report as Ex. PW19/B. PW-19 Ms. Seema Nain, Sr. Scientific Officer further deposed that she could identify the signature of Mr. Naresh, Sr. Scientific Assistant, Biology, FSL, Rohini, as she had seen him while he was writing and signing during the course of her duty hours. She further deposed that Mr. Naresh Kumar had examined scooter no. DL3SK 1719 at FSL premises on 19.11.09 between 2 pm to 2.45 pm and lifted blood stains from the left side dicky of the scooter and from front side seat cover (sitting place of driver) and proved the said report as Ex. PW-19/C.
25. Appellant in his defence examined one defence witness i.e, DW-1 Smt. Shakuntala Devi, who is the maternal grandmother of appellant she deposed that she is working in Jawahar Lal Nehru University (JNU), she had reached her office at about 8.30 am and remained in the office till 3 pm. DW-1 Smt. Shakuntala Devi, further deposed that on 10.11.09, she had gone to her aforesaid office at JNU at about 8.30 pm, she came to know that appellant Amit was involved in a murder case. DW-1 Smt. Shakuntala Devi Crl. A. 174/2017 Page 19 of 30 further deposed that on that day from 8.30 am to 12 noon, Amit was with her in the office, she had taken him to drop her, to her office as she was unwell on that day and Amit could assist her in her office work. She further deposed that she got procured two tablets from Amit on 10.11.09 from Health Centre within JNU campus and resultantly her health improved and Amit left at 12 noon. DW-1 Smt. Shakuntala Devi further deposed that she was not aware as to where Amit went after he left her office. DW-1 Smt. Shakuntala Devi further deposed that when she came to know about the implication of Amit in this case, she went to the Police Station at 8-9 p.m. to tell them the real truth but she was not allowed to enter the Police Station, DW-1 Smt. Shakuntala Devi asked the police officials in the Police Station to record her statement but police officials chased her out of the Police Station. During cross examination, DW-1 Smt. Shakuntala Devi deposed that she did not make any complaint to any senior police official when she was not allowed to enter the Police Station on 10.11.09, as she is an illiterate person. In response to Court's question as to whether Amit was with her continuously from 8 to 12 noon on 10.11.09, DW-1 Smt.Shakuntala Devi first replied that on 10.11.09 he was with her from 8 am to 12 noon throughout. In the next line, she deposed that Amit went to Crl. A. 174/2017 Page 20 of 30 take medicines for her at 11 a.m. and he returned with the medicines within 10 minutes.
26. Learned counsel for the appellant submitted that the, recovery of the knife is also doubtful. He has also submitted that it has not been proved that the scooter or the rubber mat of the scooter was having any blood stain.
27. On the other hand learned Additional Public Prosecutor for the State submitted that based on a careful reading of evidence of PW-3 Barjeet (brother of deceased), PW-11 SI Randhir Singh (Retd.), PW-13 SI (Retd.), PW-14 Dr. Abhishek Yadav (Astt. Professor, Department of Forensic Medicine), PW-15 Ct. Suresh Kumar, PW-17 Dr. Jashanpreet Singh, PW- 18 Inspector Kishore Kumar, PW-19 Ms. Seema Nain (Sr. Scientific Officer-Biology), clearly rebuts the contention's of the learned counsel for the appellant that PW-3 was not an eye witness or that he was not present at the time of the incident or that appellant was falsely implicated in the present case, or that scooter No. No.DL3SK 1719 was planted or that the trial court has passed the order of sentence in contrary of law.
28. We have carefully examined the testimony of PW-3 as mentioned hereinabove.
Crl. A. 174/2017 Page 21 of 30
29. We have also carefully examined the testimony of PW-6 and PW-7, both deposed the fact about the panchayat which took place to effect the divorce between Jyoti and deceased. These two witnesses also prove the motive of the crime.
30. During the cross examination of PW-3 as well as PW-6 and PW-7, there was nothing to discredit their testimonies. It has specifically come on record that, it stands proved on record that PW-3 was an eye witness of the incident. We have found no force in the arguments of the learned counsel for the appellant that the presence of the complainant is highly doubtful rather we find the evidence of PW-3 to be truthful and reliable. PW-3 has given a complete account of the incident. There is nothing in the deposition of the PW-3 which may discard his testimony in any manner. His evidence is truthful.
31. Similarly PW-6 and PW-7 as discussed hereinabove, proved the motive of the crime.
32. As far as the submission of learned counsel for the appellant with regard to the recovery of scooter, we also do not find any substance therein. Crl. A. 174/2017 Page 22 of 30
33. Learned Additional Public Prosecutor for the State submitted that PW-18 Inspector Kishore Kumar has deposed that at the time of the arrest of the appellant, complainant Barjeet and Constable Mahesh were present with the Investigating Officer and the complainant identified the appellant before his arrest, disclosure statement Ex. PW-18/C of appellant was recorded and he disclosed that he could get recovered the scooter by which he struck against deceased and the knife i.e. weapon of offence recovered.
PW-18 further deposed that the appellant took PW-
18 and other persons to jhuggi No. S-99/34, Moti Lal Nehru Camp, Munirka and got recovered the scooter No.DL3SK 1719, grey colour make Classic Bajaj which was parked outside his jhuggi, was seized vide memo Ex.PW-3/I. There were some blood stains on the front side of the scooter as well as on the dicky of the scooter. It was also deposed that appellant got recovered the knife which was used as weapon of offence from the roof of his jhuggi, the knife was blood stained, sketch of knife was prepared and it was seized vide memo Ex. PW-3/H, the appellant's clothes which he was wearing i.e. blue colour jeans, jacket which was blood stained and shoes of dark brown colour make Panasonic were also sealed and seized by PW-18. PW-18 Inspector Kishore Kumar further deposed that on 11.11.09, he had Crl. A. 174/2017 Page 23 of 30 moved an application Ex. PW-18/D to CMO, Safdarjung Hospital to conduct the post-mortem on the dead body of deceased and the dead body was identified by the complainant vide Ex.PW-3/N. PW-18 Inspector Kishore Kumar received subsequent opinion from the doctor as Ex. PW- 14/B. PW-18 further deposed that on 19.11.2009, he sent scooter No.DL3SK1719 make Bajaj Chetak to FSL, Rohini for inspection and examination vide application Ex.PW-18/H.
34. There is nothing in the cross examination of PW-18, which would cast a shadow of doubt, he submitted that he had reached the spot on 10.11.2009 where the alleged offence was committed and he found some public person at the spot, however, no public witness were made witnesses at time of recovery of the scooter and knife, except for the complainant.
35. Learned Additional Public Prosecutor for the State submits that there is nothing in the cross examination of PW-18 Inspector Kishore Kumar, which may cast a shadow of doubt about the recovery of the scooter and knife. He submitted that the deposition of PW-18 Inspector Kishore Kumar has been fully supported and corroborated by the other witnesses including complainant and constable Mahesh. We have also noticed that Crl. A. 174/2017 Page 24 of 30 PW-3 Barjeet has clearly deposed that he signed all the relevant documents viz. seizure memo of blood stained earth control, seizure memo of blood stained soil, seizure memo of sleeper of deceased, arrest memo of appellant, seizure memo of knife, seizure memo of scooter and seizure memo of shoes, jacket and jeans of appellant. There is scientific evidence which cannot be ignored rebutting the contention of the learned counsel for the appellant regarding lack of scientific investigation supporting the case of the prosecution. The biological and seriological report i.e. PW-19/A and PW-19/B proved that the blood gauze was found to be human in origin and blood group was of ―O‖ Group which matched with the blood group of the deceased. Blood stains lifted from the left side dicky of the scooter and from front side seat cover had been proved and report was exhibited as Ex. PW-19/C.
36. The scooter No. DL3SK1719, was recovered from the Jhuggi of the appellant at his instance in pursuance of his disclosure statement, though the prosecution in the evidence has failed to prove that the appellant is the owner of the scooter No. DL3SK1719. However, the prosecution has proved the case beyond any shadow of doubt that scooter No. DL3SK1719 Crl. A. 174/2017 Page 25 of 30 was in possession of the appellant and was recovered from his jhuggi at his instance in pursuance of the disclosure statement of the accused.
37. Per contra, the contention of the learned counsel for the appellant was that there was no blood stain found from the scooter No. DL3SK1719 or on the rubber mat of the scooter. However, in this regard, it is found that the blood stain were found and lifted from the dickey of the scooter No. DL3SK1719 and also from the rubber mat of the scooter stood proved through biological and seriological examination and according to it these blood stain was found to be of human origin and moreover, the scooter No. DL3SK1719 was found in the possession of the appellant. We would like to mention here that the recovery of the scooter and knife pursuant to the disclosure statement of the appellant were covered by Section 27 of the Evidence Act 1872 which reads as under:-
―27. How much of information received from appellant may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.‖ Crl. A. 174/2017 Page 26 of 30 The recovery of the scooter and knife in pursuance of the disclosure statement of the appellant are admissible in evidence as per Section 27 of the Indian Evidence Act 1872.
38. Learned counsel for the appellant submitted that there are contradictions in the testimony of PW-3 and other witnesses but he has failed to point any major contradiction. A careful analysis of the testimonies of PW-3 establishes that while he along with deceased Sujeet were plucking leaves for their goat, the appellant came to the spot and the incident took place, the deceased did try to pacify the matter. Thus, the presence of the appellant also stands established. Minor contradictions if any, in the testimonies of witnesses which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Our view is further fortified by the view rendered by the Hon'ble Supreme Court in the case of State of U.P. v. Naresh reported at (2011) 4 SCC 324, after considering a large number of its earlier judgments held as under:
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core Crl. A. 174/2017 Page 27 of 30 of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9.Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
(Emphasis Supplied)
39. We also do not find any force in the contention of the learned counsel for the appellant that the public witness were not made witnesses. Hence, no reliance can be placed upon the evidence adduced by the prosecution. We would like to mention that generally the public does not come forward to depose, even otherwise there were no public stated to be present at the time of the incident at the spot, moreover, the non joining of Crl. A. 174/2017 Page 28 of 30 the public witness is not fatal to the prosecution in this case in view of the evidence already led and discussed herein above.
40. The deposition of PW-3 Barjeet, PW-5 HC Rajbir similarly PW-6 Chandi Prasad, PW-7 Smt. Murti, PW-8 HC Vinod Kumar, PW-11 SI Ranbir Singh (Retd.), PW-13 SI Surjit Singh (Retd.), PW-14 Dr. Abhishek Yadav, Asstt. Professor and PW-15 Constable Suresh Kumar, PW-18 Inspector Kishore Kumar, PW-19 Ms. Seema Nain proved the imputation of the crime to the appellant.
41. In the present case, a careful analysis of the testimony of PW-3 Barjeet who was an eye witness to the incident, proved the motive and the offence of the appellant. The appellant while he was arrested was wearing the same clothes i.e. blood stained pant, jacket, shoes, which he was wearing at the time of commission of crime. Even the knife (weapon of offence) and scooter got recovered at the instance of the appellant. Forensic evidence proved the guilt of the appellant as the blood group of the deceased Sujeet matched with the blood stain lifted from the dickey of the scooter No. DL3SK1719 and also from the rubber mat of the scooter. Crl. A. 174/2017 Page 29 of 30
42. In the light of the above discussion, we hold that the prosecution has established its case beyond any shadow of doubt against the appellant and we are in agreement with the conclusion arrived at by the learned Trial Court, consequently, the appeal is held to be devoid of any merit and is accordingly dismissed.
43. Copy of this judgment be sent to the Jail Superintendant Central, Tihar Jail, Delhi for updating the jail record.
44. Trial Court Record be sent back along with a copy of this judgement.
(CHANDER SHEKHAR) JUDGE (G. S. SISTANI) JUDGE JULY 31 st , 2017 b Crl. A. 174/2017 Page 30 of 30