Delhi District Court
State vs Raj Kumar Shah on 2 August, 2016
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.82/2013
Unique Case ID No. 113/2016
FIR No. 82/2013
U/S: 302 IPC
P.S: M.S. Park
State Versus Raj Kumar Shah
S/o Sh. Joginder Shah
R/o Village Khatoni, PS Dhaka,
Post East Champaran, Disstt.,
Motihari, Bihar.
Date of Institution : 08.08.2013
Date of Arguments : 18.07.2016
Date of Judgment : 02.08.2016
JUDGMENT
The facts and circumstance of the case as borne out from the record are as under :-
(i) On 08.04.2013 at about 8.25 am a telephonic call was received by HC Vinod Kumar at PS Mansarovar Park from some unknown person about a quarrel between two persons which had taken place near ticket FIR NO. 82/13 State Vs. Raj Kumar Shah Page 1 of 15 counter Shahdara Railway Station and one person is in serious condition. Accordingly DD No. 9A was registered regarding this information and same was marked to ASI Jagdish Narain who along with Ct. Sulekh, reached at the spot where ASI Rajender Singh, and Ct.
Satish along with informant Raja and Raju were already present. A dead body was lying there and blood was oozing from back side of head.
(ii) Inspector Surender Rana also reached at the spot who recorded the statement of Raja, that he used to sell ties at railway stations and on 08/4/2013 he and his friend Raju boarded a passenger train from Ghaziabad and at about 8.10 am alighted at Shahdara Railway station. When he and his friend stepped outside the Shahdara Railway station ticket counter, in ground he saw that one person (Raj Kumar) was addressing another person (deceased) as a pickpocketer and asking him to pay money. That person was saying that he is not a pickpocketer and he is not having any money. When the other person denied to hand over the money, that person said, either you hand over the money or I will kill you. Afterwards that person started beating another person with his hands and fists and even when he and his friend tried to intervene, that person lifted another person and threw him on the road and pressed his neck and hit his head 4 to 5 times against the road and the person who was beating him remained jumping on the chest of the deceased, until he died. Meanwhile, two police officials arrived there to whom he and his friend informed all about the incident and with their help, the person who killed the another person was apprehended. On interrogation his name was disclosed as Raj Kumar Shah. On the basis of this information, Inspector Surendra Rana prepared the rukka and sent ASI Rajendra Singh to get case F.I.R No. 82/13 registered.
FIR NO. 82/13 State Vs. Raj Kumar Shah Page 2 of 15(iii) During investigation, statements of witnesses were recorded, accused was arrested and post mortem report was collected. Further Investigation was carried out and after completion of the investigation, charge sheet was filed in the court.
2. After compliance of section 207 Cr.P.C, the case was committed to the court of Sessions and was assigned to this court.
3. After hearing arguments on the point of charge, Ld. Predecessor of this court vide order dated 20.09.2013 framed the charge against the accused for offence punishable u/s 302 IPC, to which accused pleaded not guilty and claimed trial.
4. Statement of accused u/s 313 Cr.P.C was recorded, during which all the incriminating evidences were put to him. However, accused denied the same and claimed that he is innocent and has been falsely implicated in this case by the police to solve a blind case. He further submitted that the T-shirt proved as Ex.P-2 did not belong to him and the same was planted against him. His thumb impressions were obtained by the police on some blank papers.
5. I have heard Ld. APP on behalf of state and Mohd. Hasan, Ld. Amicus Curie on behalf of the accused. I have also gone through the material available on record.
6. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief the testimonies of prosecution witnesses which have come in record to see as to how the prosecution story has been unfolded by the prosecution witnesses during the course of trial. The said testimonies are detailed as under:-
7. FORMAL WITNESSES:-
FIR NO. 82/13 State Vs. Raj Kumar Shah Page 3 of 151. PW-1 HC Vinod Kumar :- He was posted at PS Mansarovar Park as duty officer. He deposed that on 08.04.2013 at about 8.25 am he received a telephonic call from some unknown persons regarding quarrel which had taken place near ticket counter Shahdara Railway Station. He lodged the D.D No. 9A Ex.PW1/A. He further deposed that on the same day at 11.15 am ASI Rajender brought the terhrir and on basis of that he registered FIR No.82/13 i.e. Ex. PW1/B u/s 302 IPC
2. PW-4 Inspector Mukesh Kumar Jain :- He was posted as SI Draughtsman at North East District Delhi. He deposed that on 01.07.2013 at the request of ASI Jagdish Narayan he went at the spot i.e. in front of railway ticket counter, Railway Station Shahdara and inspected the spot and took measurements at the instance of ASI Jagdish Narayan and on 02.07.2013 he prepared the scaled site plan Ex.PW4/A .
3. PW-5 SI Suman :- On 08.04.2013 he was posted at District Mobile Crime Team, North East District and on receipt of message from the control room he along with mobile crime team rushed at the spot at Shahdara Railway Station and Ct. Neeraj, the crime team photographer took the photographs of the spot. He further deposed that an unidentified dead body was lying at the spot and was bleeding from his head. After inspection he prepared the scene of crime report Ex. PW5/A. In his cross examination by Sh. Mohd.
Hasan, Ld. Amicus curie for accused, he deposed that he did not notice if there were injuries on the other parts of the body except head.
4. PW-6 Ex- Ct. Neeraj :- On 08.04.2013 he was posted as photographer at Mobile Crime Team North East District. He deposed that he along with SI Suman Kumar and ASI Surender reached at spot and had taken 10 photographs Ex.PW6/A-1 to Ex. PW6/A-8. In his cross examination by Sh.
FIR NO. 82/13 State Vs. Raj Kumar Shah Page 4 of 15Mohd. Hasan, Ld. amicus curie for accused, he denied the suggestion that photographs are manipulated and not belonging to alleged spot.
5. PW-7 HC Ravindra :- He deposed that on 03.07.2013, he was posted at PS M.S. Park and on the same day on direction of IO he had received 6 parcels and deposited the same at FSL Rohini vide acknowledgement receipt EX PW7/A and EX PW 7/B. In his cross examination by Sh. Mohd. Hasan, Ld. Amicus curie for accused, he denied the suggestion that the pullandas were tampered.
6. PW-8 HC Arjun :- He deposed that on 08.04.2013 he was posted at PS M.S Park and had delivered the copies of FIR no. 82/13 u/s 302 IPC to Area Magistrate, Joint CP and Addl. C.P.
8. MATERIAL WITNESSES :-
1. PW-2 Ct. Satish Kumar :- He was posted as constable at PS M.S Park. He deposed that on 08.04.13 he was on motorcycle duty with ASI Rajendra on vehicle M-25 and they were patrolling in the area.
He further deposed that at about 8.20 am, when they reached Shahdara Railway Station, two persons came to them and informed that two persons were quarreling with each other and one person is beating other person and was telling him that he was a pickpockter and was asking for money. He further deposed that, they parked the motorcycle and went to the spot and had seen that one person was lying on the road and accused was in the process of running away from the spot. He further deposed that, the public persons told them that accused had given beatings to the person who was lying on the FIR NO. 82/13 State Vs. Raj Kumar Shah Page 5 of 15 road. They apprehended the accused and ASI Rajender called the police station and IO arrived at the spot and recorded his statement. In his cross examination by Ld. APP for state, he confirmed that those two persons who met them had also informed that they had tried to intervene but accused lifted the victim and threw him on the road and pressed his neck and hit his head 4 to 5 times against the road and victim started bleeding from the back side of his head.
In his cross examination by Sh. Mohd. Hasan, Ld. Amicus curie for accused, he deposed that he cannot tell the names of two persons who informed them and those two persons remained with them for some time. He further deposed that he cannot admit or deny that accused was working at station to remove the dead bodies from the track and he was not running away from the spot. He further confirmed that metro guard was present at the metro station.
2. PW-3 ASI Rajender Singh :- He was posted at PS M.S Park. He deposed that on 08.04.13 he was on patrolling duty with Ct. Satish on motorcycle. He further deposed that at about 8.20 am, when they reached in front of ticket counter of Shahdara Railway Station, two persons met them and informed that one person was being beaten up by another person who was telling him "tu jeb katra hai paise de". He further deposed that they saw that in the ground, in front of ticket counter, accused Raj Kumar was sitting on a person and was giving him fist blows and banged his head against the ground. He further deposed that they apprehended the accused with the help of other public persons. SHO Inspector Surendra Rana prepared rukka on the statement of one public person Raja. He further deposed that rukka was handed over to him and he went to PS and got the FIR registered. To a specific question as put by Ld.APP, he confirmed FIR NO. 82/13 State Vs. Raj Kumar Shah Page 6 of 15 that the accused banged the head of the deceased on the ground 4 to 5 times and blood came out from his head.
In his cross examination by Sh. Mohd. Hasan, Ld. Amicus curie for accused, he denied the suggestion that he had not seen the accused giving fist blows or banging the head of the victim against the road or that the same has been deposed by him on the basis of hearsay information given by two passersby. He further deposed that place of incident was not visible from the place of information but was visible from the place of parking and they had issued warning to the accused from a distance of 5 steps after parking the motorcycle asking him to leave the victim. He further deposed that he did not take notice if the clothes of the accused had got blood stained. He further deposed that no one from public tried to save the victim though they were asking the accused to spare him. Accused was not having any weapon in his hand. He further denied the suggestion that he was planted as a witness in this case, as this case was not solved and only for the purpose of this case, Raj Kumar was planted as accused who was a vagabond of the area.
3. PW-9 SI Jagdish Narain :- He deposed that on 08.04.2013 he was posted at PS M.S Park on emergency duty and at about 08.25 am he received DD No. 9A(Ex. PW1/A) regarding quarrel between two persons and that one person was serious. Thereafter he along with Ct. Sulekh, reached at the spot where ASI Rajendra, Ct. Satish and complainant Raja and Raju were present. He further deposed that he apprehended the accused and a dead body which was lying there was sent to mortuary of GTB hospital. He further submitted that the blood smeared concrete tiles were lifted from the spot and kept in separate plastic container and one T-shirt of accused Raj FIR NO. 82/13 State Vs. Raj Kumar Shah Page 7 of 15 Kumar was taken into possession and converted to a pullanda Ex. PW9/B. The accused was arrested vide arrest memo Ex. PW9/C and his disclosure statement Ex. PW9/E was recorded. He further deposed that on 16.04.2013, on direction of IO, post mortem of the dead body was conducted and two sealed parcels were handed over to him and as no one had claimed the dead body so it was cremated. He further identified the T-shirt Ex. P-1, as the same which was worn by the accused at the time of his apprehension and the pant and shirt Ex P-2 as the clothes of deceased.
In his cross examination by Sh. Mohd. Hasan, Ld. Amicus curie for accused, he denied the suggestion that the T-shirt was planted and it did not belong to accused or that blood was planted by the IO on the planted T-shirt. He further denied the suggestion that no person by the name of Raja and Raju existed on the earth, who saw the incident or that they were falsely introduced as eye witness of this case. He further denied the suggestion that the accused did not make any disclosure statement or that his signature were obtained on some blank papers which were later on converted into disclosure statement to falsely implicate the accused in the present case. He further denied the suggestion that the accused was doing work for railway police for removing dead bodies and he was not involved in the case or the real culprit was not apprehended by the police.
4. PW-10 Inspector Surender Rana :- On 08.04.13 he was posted at PS Mansarovar Park as SHO. He reached at spot where ASI Rajendra, Ct. Sulekh, Ct. Satish and complainant Raja and Raju were already present. A dead body was lying and he recorded the statement of Raja Ex. PW10/A and at about 11.00 am handed over FIR NO. 82/13 State Vs. Raj Kumar Shah Page 8 of 15 the rukka to ASI Rajendra for registration of FIR. He further prepared the site plan Ex. PW10/C at instance of complainant Raja. He further deposed that he had taken the T-shirt of the accused which he was wearing at that time into possession and converted into a pullanda Ex. PW9/B. The accused was arrested and his personal search was conducted and his disclosure statement Ex. PW9/E was recorded. On 16.04.13 he received the post mortem report Ex. PW10/D. In witness box, when one pullanda was opened, he identified the T-shirt as the same worn by the accused at the time of his apprehension and one pant and shirt was also identified as the cloth of deceased. He further denied the suggestion that the T-shirt which was planted upon accused and conversion of blank paper into disclosure statement of the accused.
9. MEDICAL WITNESS: -
1. PW-11 Dr. Ashish Kumar :- On 16.04.13 he conducted the post mortem of the dead body of deceased and observed in his report EX.PW11/A as follows:-
EXTERNAL EXAMINATION:-
1) Crescentric shaped lacerated wound of size 2cm x 0.3 cm X bone deep with interdigiting muscle fibers is present over left side of scalp and is 8.5 cm posterior to the tip of mastoid and is 0.5 cm above the occipital protuberance. The injury is obliquely placed and its lower margin is 160 cm above the heel. Margins are reddish abraded, irregular and congested.FIR NO. 82/13 State Vs. Raj Kumar Shah Page 9 of 15
2) Reddish abrasions of size 5cm x 5 cm is present over right side of abdomen and is 1.5 cm lateral to midline and is 8.5 cm below the nipple. The injury is 116 cm above the right heel.
3) Blackish scabbed abrasion of size 2.5 cm x1 cm present over right elbow.
INTERNAL EXAMINATION:-
Scalp: Extravasation of blood present over left occipital lobe.
Brain: 1223 gm, evidence of subdural haemorrhage over the left cerebral hemisphere is present. Brain is softened and pale.
Fracture of lower jaw (left ramus) was present along with extravasation of blood in surrounding tissues.
Ribcage: Fracture of 2nd and 3rd ribs in midclavicular line and 4 to 9 in anterior axillary line on right side and fracture of 2 to 6 ribs in midclavicular line on the left side with extravasation of blood in surrounding tissues. About 500ml of blood was present in thoracis cavity.
In his post mortem report he opined that time since death was about one week and cause of death was haemorrhagic shock as a result of ante mortem injury to chest and abdomen produced by blunt force.
ARGUMENTS ADVANCED AND CONCLUSION
10. The case of the prosecution as argued by the Ld. APP is that, due to some monetary interest the accused Raj Kumar had beaten up the deceased by giving him fist blows and banging his head against the ground and subsequently the deceased had sustained severe injuries which caused his death.
FIR NO. 82/13 State Vs. Raj Kumar Shah Page 10 of 1511. Contrary to that, the Ld. defence counsel argued that the accused Raj Singh was not the one who had beaten up the deceased and had been falsely implicated in the present case by the police to solve a blind case.
12. The accused has been charged with offence punishable u/s 302 IPC which reads as under;
"Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine".
13. In order to appreciate the evidence available on record in the light of offence charged against the accused, it would be appropriate to refer to the provisions contained in section 300 IPC which reads as under;
"Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or secondly if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or thirdly if it is done with the intention of causing bodily injury to any persons and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid".
14. Raja and Raju both were alleged eye witnesses of the entire incident, and they also narrated the incident to ASI Rajender and Ct. Satish who FIR NO. 82/13 State Vs. Raj Kumar Shah Page 11 of 15 during patrolling reached at the spot. FIR of present case was also got registered on the basis of statement of Raja, but as claimed by the prosecution despite sincere efforts made by the DCP they could not be traced out. ASI Rajender and Ct. Satish who as per prosecution case reached at the spot during patrolling, do not support each other to witness the alleged beatings given by the accused to the deceased.
15. In the case of Lallu Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401, Hon'ble Supreme Court had classified the oral testimony of the witnesses into three categories:-
a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to FIR NO. 82/13 State Vs. Raj Kumar Shah Page 12 of 15 the cases of Joseph v. State of Kerala (2003) 1 SCC 465 and Tika Ram v. State of Madhya Pradesh (2007) 15 SCC 760.
16. In this regard, PW-2 Ct. Satish Kumar deposed that they parked their motorcycle and went to the spot and saw that one person was lying on the road and accused was in the process of running away from the spot. He further deposed that public persons who were present there told them that accused present in court had given beatings to the person who was lying there. Whereas PW-3 ASI Rajendra Singh deposed that when two persons had informed them about the incident, they parked the motorcycle and from there they had issued the warning to the accused to leave the victim. According to PW-3, they had seen that in the ground in front of ticket counter, accused Raj Kumar was sitting on a person and was giving fist blows and banged his head against the ground. They apprehended the accused with the help of other public persons. PW-2 Ct. Satish did not see accused giving beatings to the deceased and public persons told them that accused had given beatings to the person who was lying on the road although he accompanied ASI Rajender Singh and both were on the same motorcycle. The statements of two star witnesses of the prosecution are contradictory to this effect.
17. Shahdara Railway Station, ticket counter remains over crowded by passengers, public and small vendors. Entry gate of the metro station add more crowd to the spot. Railway staff remains available on ticket counter where the said incident occurred but I.O did not try to enquire about the incident from any booking clerk at railway station ticket counter. It was deposed by the PW-2 that a guard at metro station was present. No explanation has come on record as to why these officials who were natural eye witnesses of the incident were not asked to join the investigation.
FIR NO. 82/13 State Vs. Raj Kumar Shah Page 13 of 1518. Accused took the plea that the T-shirt which was produced against him was planted by the police to solve a blind case. Accused in his statement under sec 313 Cr.P.C clearly stated that the T- shirt seized by the police did not belong to him, whereas PW-9 SI Jagdish Narain and PW-10 Inspector Surender Rana identified the T-shirt shown to them as one worn by the accused at the time of his apprehension.
19. PW-3 ASI Rajender Singh had said that he did not take note if the clothes of the accused had got blood stained. The T-shirt of the accused was taken into possession by SI Jagdish Narain and converted into pullanda EX PW9/B but independent witness Raja who had signed the memo was not examined by the prosecution. According to the FSL Report EX PW10/G, the blood present on the T-shirt of the accused was of same group as of the blood present on the clothes of the deceased.
20. In the decision reported as AIR 1994 SC 110 Surjit Singh & Anr. Vs. State of Punjab the recovery of a watch stated to be that of the deceased and a dagger stained with the blood of the same group as that of the deceased were held to be weak evidence. In Amarpal (Raj v Pal) v. State 2010 SCC Online Del 2113 Blood of the same group as that of the deceased which was detected on the clothes of the accused which were seized is too insignificant incriminating evidence and such kind of recoveries have been held to be extremely weak evidence. The latest in the line is the decision of the Supreme Court reported as JT 2008 (1) SC 191 Mani Vs. State of Tamil Nadu in which recoveries of blood-stained clothes and the weapon of offence stained with human blood were held to be weak recoveries.
21. It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin FIR NO. 82/13 State Vs. Raj Kumar Shah Page 14 of 15 safeguards available to the accused under our criminal justice system. If we analyze the above principle somewhat concisely, it is obvious that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted.
22. Adverting back to the fact and circumstance of the present case, there is no cogent and reliable evidence, which may prove that it was the accused only who committed murder of the deceased. The testimony of PW-3 ASI Rajender Singh is not corroborated by PW-2 Ct. Satish, although both of them reached at spot on the same motorcycle while patrolling. Complainant Raju and his friend Raja could not be produced by the prosecution despite several opportunities. None of the ticket clerk or metro guard was examined by the I.O although their presence is but natural at the spot due to their duty. It is not proved beyond reasonable doubt that T-shirt, having blood stains of deceased was worn by the accused. Even otherwise the only presence of blood of same group as of deceased on T-shirt of accused is a weak evidence for conviction. In view of above I am of the considered opinion that prosecution has failed to prove its case beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly accused is given benefit of doubt and thus acquitted of charge u/s 302 IPC. However, he is directed to furnish personal bond in the sum of Rs.10,000/- with a surety of like amount u/s 437-A Cr.P.C. for a period of six months. After the bail bond is furnished, the file be consigned to record room.
Announced in the open court (Sanjeev Kumar Malhotra)
On 02.08.2016 ASJ/FTC/E-COURT
Shahdara/KKD/Delhi
FIR NO. 82/13 State Vs. Raj Kumar Shah Page 15 of 15