Delhi District Court
State vs . Ajay Kumar S/O Devi Parkash, R/O ... on 4 September, 2009
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IN THE COURT Ms. SUNITA GUPTA : DISTRICT JUDGE-VII/NE-CUM-
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 31/09
State Vs. Ajay Kumar S/o Devi Parkash, R/o 1/9681, Gali
No.6, Pratap Pura, Shahdara, Delhi.
FIR No. 340/08
PS Shahdara
U/s 302/201 IPC.
J U D G E M E N T :-
Prosecution case emanates from the fact that on 22.10.08, Geeta went to PS Shahdara and lodged her report. On her report, a case under section 365 IPC was registered. She detailed therein that on 20.10.08 at about 10am, her brother, namely, Sanjay, was going outside his house, when Ajay, his uncle Kale and sister Minakshi had grappled with him. At about 12 noon, mother of Ajay told to her mother that Sanjay was having a quarrel at mother dairy, Shahdara. She along with her mother went to aforesaid place, where Sanjay was not found. Jai Bhagwan SI took up the investigation. Sarla, mother of Sanjay, raised an accusing finger against accused Ajay as he was missing from last two days. During the course of investigation, witnesses, namely, Sarwan Sharma @ Bachi and Rahul @ Raju told that at about 11.30am, they were present at liquor vend, Mansarovar Park, G.T. Road, Shahdara, Delhi, where Ajay and Sanjay had also come for purchasing liquor. Accused Ajay had beaten Sanjay with fist and kick blows. As soon as Sanjay fell on the ground, they left from there. On 23.10.08, an information was received from PS M.S. Park that the dead body, regarding which DD No.12A was recorded on 21.10.08, has been identified as of Sanjay. Inquest papers were prepared and postmortem on the dead body was got conducted. Statement of Sarla was recorded by police, wherein she detailed that accused Ajay himself told her that he had 2 murdered her son. However, she could not tell this fact to anyone, as nobody was at home at that time. Accused Ajay surrendered before the Court at Karkardooma. He was formally arrested in the case. Offence punishable under section 302 IPC was added in the case. Investigation culminated into a chargesheet against him.
2. Charge for offences punishable under sections 302 and 201 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Smt. Geeta (PW1), Manish @ Monu (PW2), Smt. Sarla (PW3), Sarvan Sharma @ Bachi (PW4), Parvesh (PW5), Rahul @ Raju (PW6), Pawan Singh ASI (PW7), Om Prakash, Constable (PW8), Dr. Meghali (PW9), Vinod Kumar, Head Constable (PW10), Rakesh Kumari ASI (PW11), Devender, Head Constable (PW12), Jai Bhagwan SI (PW13), Mukesh Jain (PW14) and Inspector M.A. Khan (PW15) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He admits that Sarla, along with her son Sanjay, used to reside at H.No. 1/9681, Street No.6, near Behal Gali, Partappura, Shahdara, as a tenant on the first floor. He also admits that he along with his family used to reside there as tenant on the first floor, while owner was residing at ground floor. He had denied all the allegations levelled against him. However, he had admitted the fact that he surrendered before the Court and police took him into custody. However, he denied to have made any disclosure statement to police, poiting the place of occurrence. He claims that he is innocent and has been falsely implicated in the case.
5. Smt. Geeta (PW1) deposed that Sanjay was her brother. On 3 20.10.08, she received one telephone call from her mother to the effect that Sanjay had gone from home since morining. He had not returned. She received the telephone call at about 6 or 6.30pm. On receipt of said call, she along with her younger sisters, namely, Neeru and Meenu, went to her mother's house, located near Behl Gali, Shahdara. They found their mother weeping. Her mother told that in the morning, Sanjay was badly beaten by Ajay and his maternal uncle. Her mother was apprehensive that Sanjay was abducted by Ajay and his maternal uncle. Ajay and his family members were tenants on the first floor of the very premises, where her mother was tenant in second floor of the premises. She, along with her sisters and her mother went to the first floor premises to inquire about Sanjay from Ajay and his family members. Ajay was secretly concealed by them in the inner room. Mother of Ajay and his three sisters misbehaved with them. Meenakshi, one of the sisters of Ajay had quarreled with them at that time. When they inquired from them as to where Ajay was, they told that he was not inside the house. Her mother had seen Ajay coming from inside the house. Hence, they were of the opinion that Ajay was secretly concealed by them in the house. When they insisted, mother and sister of Ajay brought him out. Ajay was deadly drunk at that time. They tried to inquire from him about Sanjay, but he was not in his self-possession. Someone from the family of Ajay called a few boys to quarrel with them. Six or seven boys reached there. They started quarreling with them. Thereafter, she along with Parvesh, her cousin brother, Monu, her brother, went to PS and lodged report. On 22.10.08, police informed them about recovery of dead body of Sanjay. Dead body of Sanjay was identified by Parvesh and Monu. She further deposed that accused ought not have murdered her brother.
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6. Manish @ Monu unfolds that Sanjay was his elder brother. He used to reside in a house in Street No.6, Partappura, Shahdara, Delhi, along with his mother. On 20.11.08, he was leaving for his office. At about 10am, someone gave a telephone call and informed that an altercation was going on with his brother. He reached house of his mother. He found his brother Sanjay, in front of their house on the gound floor. He was bleeding from his mouth. Accused Ajay, present before the Court, was grappling with his brother at that time. There was one associate of accused Ajay, who was also grappling with his brother. He intervened and separated Sanjay and Ajay and his associates. He told them that in the evening hours, he would settle their dispute amicably. He asked mother of accused not to quarrel. Thereafter, he left for his office. In the evening, he heard that Sanjay had not returned. Sanjay was an alcoholist. He used to return at about 11 or 12 in the night. He thought that he would return home late in the light. He went to his tenanted accommodation. Next day, his sister made a complaint to police. He further deposed that when Ajay was assaulting Sanjay at that time, former made a declaratory statement to finish the latter. On 23.10.08, he along with Parvesh went to PS, where they came to know that a dead body was recovered in the area of Mansarovar Park. He identified the dead body of Sanjay at Mortuary, GTB Hospital. He had also deposed that Sarwan @ Bachi had also reached the spot. However, he (Sarwan) was not present at the time of occurrence of incident. Smt. Sarla (PW3) gave confirmation to facts deposed by Manish @ Monu. She also unfolds that on 23.10.08, accused Ajay came to her and stated that he had killed her son Sanjay. Thereafter, he ran away from there.
7. Sarvan Sharma @ Bachi (PW4) deposed that Sanjay was known to 5 him. On 20.10.08 at about 10.30am, he went to the house of Sanjay, who used to reside at street No.6, Pratappura to take speaker colam. Monu, brother of Sanjay met him and he stated that quarrel had taken place. Ajay had quarreled with Sanjay. Ajay also used to reside there. He had not visited the house of Ajay at any point of time. Monu asked him not to go anywhere and not to involve. Thereafter, he went at Manasrovar Park, at the shop of Desi Theka, at about 11 or 11.30am. Sanjay was also there. In the meanwhile, Ajay also reached there. Ajay started quarreling with Sanjay and he wielded four or five forceful blows on the face and head of Sanjay, due to which Sanjay had fallen on the road itself. He purchased 'adda' of liquor and he left from there. He knew Rahul @ Raju. Rahul was also at the theka on that day. Rahul @ Raju also used to come at Theka to purchase liquor.
8. Parvesh (PW5) unfolded facts pertaining to identification of dead body of his brother Sanjay. He proved identification statement as Ex.PW5/A, recorded on 23.10.08. He further deposed that on 20.10.08, one complaint was addressed to SHO PS Shahdara in the name of his sister Geeta. He wrote that complaint, which is Ex.PW1/A.
9. Rahul (PW6) deposed that he did not remember, the date, month and year of incident. However, it was before three months, he had gone to liquor theka at Mansarovar Park to purchase liquor, at about 11.15 or 11.30am. After purchasing liquor quarter, one person namely Bachi met him. One more person was also with him. He did not remember his name. No occurrence had taken place in his presence. He purchased liquor quarter and went to his home. When this witness did not divulge true facts of the case, he was cross-examined by the ld. Prosecutor. In cross-examination, he admitted that Bachi used to meet him at the liquor 6 theka at Mansarowar Park. He aslo admitted that on that day, Bachi was consuming liquor with Sanjay. However, he did not support rest of the prosecution case.
10. Pawan Singh (PW7) received copy of DD No. 12A on 21.10.08. He along with Constable Om Prakash went under the flyover near liquor vend, G.T. Road, Shahdara. He found a dead body lying on the ground. He got the dead body photographed and prepared inquest proceedigs. Thereafter, he got the dead body preserved in GTB Hospital. On 23.10.08, family members of deceased reached mortuary, GTB Hospital. He recorded statement of Manish and Yogesh regading identity of the dead body, which are proved as Ex.PW7/E and Ex.PW7/F respectively by him. Thereafter, dead body was given in the custody of Jai Bhagwan SI, who prepared site plan at his instance. Om Prakash (PW8) gave confirmation to facts testified by Pawan Singh ASI.
11. Dr. Meghali (PW9) deposed that she had conducted postmortem on the dead body of deceased Sanjay on 23.10.08. She proved her report to this effect as Ex.PW9/A, wherein she detailed that cause of death was shock as a result of antemortem head injury produced by blunt force impact. She further deposed that time since death was two and half days.
12. Vinod Kumar, Head Constable (PW10) was working as duty officer on 21.10.08 at PS M.S. Park. He proved copy of DD No. 72A as Ex.PW10/A, which was recorded in his own handwriting in the DD register. Rakesh Kumari ASI was working as duty officer on 22.10.08 at PS Shahdara. She recorded FIR and proved computer generated copy of the same as Ex.PW11/A.
13. Devender, Head Constable, (PW12) detailed that on 23.10.08, he along with SI Jai Bhagwan went to GTB Hospital, where Pawan Singh 7 ASI and one Manish and Parvesh, relatives of the deceased, met them. Dead body of deceased was identified by Manish and Parvesh. Their identification statement was recorded by Jai Bhagwan SI. After postmorterm on the dead body, it was handed over to relatives of the deceased. Doctor gave him two sealed parcels, which were produced by him before Jai Bhagwan SI, who took the same into possession vide memo Ex.PW12/A. Case propperty was deposited in malkhana. Since accused had surrendered before the Court, he along with SI Jai Bhagwan reached Karkardooma Court, where accused was formally arrested. His personal search memo was also prepared. Accused was taken to PS and made his disclosure statement. Thereafter, the accused was lodged in lockup. On 24.10.08, he again joined the investigation with Jai Bhagwan SI. Accused led them to shahdara flyover and pointed out the place of occurrence. Site plan of place of occurrence was prepared by the IO. Jai Bhagwan SI (PW13) conducted investigation of the case. He detailed those very investigative steps, which were taken by him. Mukesh Jain SI (PW14) prepared scaled site plan and proved it as Ex.PW14/A. Inspector M.A. Khan (PW15) took up the investigation of the case on 24.10.08. On the pointing out of accused, he prepared pointing out memo in resepct of place of occurrence. He had sent exhibits of the case to FSL, Rohini, through Constable Rajesh and prepared the challan.
14. Arguments were heard at the bar. Sh. Subhash Chauhan, ld. Prosecutor, presented facts on behalf of the State. Sh. Navin Singhla, Advocate, had advanced arguments on behalf of the defence. It was submitted by ld. Counsel for the accused that prosecution has miserably failed to establish its case beyond shadow of reasonable doubt, inasmuch as there is delay in lodging the FIR. Moreover, the complaint 8 Ex.PW1/A is neither written by Geeta nor bears her signatures. The FIR was lodged under section 365 IPC, but challan has been filed under sections 365/302 IPC, while the charge has been framed for offences under sections 302/201 IPC. He further submitted that material witnesses have not been examined by the prosecution, inasmuch as although PW1 Geeta has deposed that on receipt of telephonic call, she along with her younger sisters, namely, Meenu and Neeru went to her mother's house. However, Neeru and Meenu have not been examined by the prosecution. There is improvement in the testimony of Geeta, which cannot be read in evidence. Further more, although according to PW3 Sarla, when her son Sanjay was being assaulted by accused Ajay and his maternal uncle, she telephonically informed her younger son Manish regarding the occurrence. However, Manish does not corroborate her version, inasmuch as he deposed that somebody informed him on telephone. Further more, according to him, when he reached the spot he saw that accused was grappling with his brother. However, according to his mother, when Manish reached spot, quarrel was over. Further, while Manish deposed that threat was given by accused Ajay, while her mother deposed that threat was administered by Kale, maternal uncle of accused. Moreover, there is contradiction that according to Manish no complaint was made by Geeta in his presence. However, in this regard he is contradicted by Geeta. As regards testimony of PW4 Sarvan @ Bachi, it was submitted that he is an interested witness, inasmuch as he is friend of deceased Sanjay. Moreover, PW5 Parvesh has deposed that complaint was made on 20.10.08 but in fact, it was given on 21.10.08. Further more, as per testimony of PW7 Pawan Singh ASI, he had received the DD entry on 21.10.08, regarding one person lying 9 unconscious, meaning thereby that till that time, the deceased was not murdered. Testimony of HC Devender has been challenged on the ground that as per his version, he had joined investigation since 23.10.08. However, investigating officer of the case had deposed that he was with him since 22.10.08. Much emphasis has been laid by him for contending that place of occurrence is not established, inasmuch as the case of prosecution is that incident had taken place at liquor vend. However, all the memos, including pointing out memo are of Shahdara Flyover. Further more, there is no independent witness. As per testimony of SI Jai Bhagwan, he was informed by Manish that Sarvan @ Bachhi and Rahul had witnessed the incident, whereas statement of Manish is silent in this regard. Further more, he has testified that HC Karan Singh, the beat officer, had brought this witness to police station. However, HC Karan Singh has not been examined by the prosecution. It was further submitted that as per report of the doctor, antimortem injuries were possible by blunt force impact. However, doctor has testified that blunt force impact can be caused by an iron rod etc. Under these circumstances, it was submitted that prosecution has failed to bring home guilt of the accused beyond shadow of reasonable doubt, as such accused is entitled to be acquitted of the charge. He has placed reliance in 2003 (2) Crimes 48 (SC), Suresh Chaudhary etc. Vs. State of Bihar; 2006 (3) Crimes 93 (SC), Sunny Kapoor Vs. State (U.T of Chandigarh); 152 (2008) Delhi Law Times 750 (DB), Mohd. Jamil Vs. State of NCT of Delhi; V (2003) SLT 45, State of Rajasthan Vs. Rajaram; 1985 (2) Gujrat High Court 481, Sukarbhai Bhalubhai Kukana and others Vs. State of Gujrat and 2006 (4) Crimes 49, Chellathal Vs. Veerappa.
15. On the other hand, ld. Prosecutor projected that PW4 Sarwan 10 Sharma @ Bachi is an eyewitness to the incident, who has given clear picture as to how forceful blows were wielded by the accused on face and head of the deceased, which proved fatal. As regards testimony doctor is concerned, it was submitted that doctor has only given illustrations of blunt force impact. However, while defining blunt force impact, she had also deposed word 'extra', which inclues fist blows, which is caused by blunt force. As regards contradictions, referred by the ld. Counsel for the accused, is concerned, it was submitted that they are trivial in nature, which do not go to the root of the mater. Under these circumstances, prosecution has been able to prove its case beyond shadow reasonable doubt against the accused, as such accused Ajay is liable to convicted for the offence with which he is charged.
16. I have given my considerable thoughts to arguments advanced at the bar and cautiously perused the record.
17. It is admitted case of parties that accused was residing as a tenant on the first floor of the house, situated in street No.6, near Behl Gali, Pratappura, Shahdara, Delhi, where deceased Sanjay was also residing along with his mother as tenant on the second floor of the property. It stands proved from testimony of PW3 Sarla that on 20.10.08 at about 10am, Sanjay got down to the ground. He was given beatings by Ajay and his maternal uncle Kale @ Kala. Blood started oozing out from his nose and mouth. Younger son of Sarla, namely, Manish was residing in H.No. 1/7221, Main Babarpur Road, Shahdara, Delhi. Intimation was given to him about this occurrence. He reached house of his brother and found his brother Sanjay in front of the house on the ground floor. He was bleeding from his mouth and nose. Accused was grappling with his brother at that time, along with one of his associates, namely, Kale. He 11 intervened and stopped Ajay and Sanjay and his associate, and told them that he would come in evening and would settle their dispute amicably. He left for his office. When Ajay was assaulting Sanjay, at that time accused Ajay made a declaratory statement that he will finish Sanjay that day. Sanjay took a sum of Rs.10/- from Sarla Devi to purchase bidi and went away from there. Thereafter, he did not come back. Sarla asked Ajay and his maternal uncle not to quarrel, on which Kale told her that they will kill her son. In the afternoon, mother of Ajay came to her and asked her as to why Sanjay had beaten he son, on which she told her that Ajay had beaten Sanjay. When Sanjay did not return home, Sarla Devi informed her daughter regarding the occurrence. Thereafter, Geeta, Neeru and Meenu came. They were informed by their mother that in the morning Sanjay was badly beaten by Ajay and his maternal uncle. Geeta along with her mother and sisters went to the house of Ajay to inquire whereabouts of Sanjay from Ajay and his family members. Mother of Ajay and his three sisters misbehaved with them. Meenakshi, one of the sisters, misbehaved and quarreled with them. When they inquired about Ajay, they told that he was not inside the house. However, Sarla had seen Ajay coming from inside the house and therefore they insisted that Ajay should be brought out of the house. Then mother and sister of Ajay brought him out. Ajay was deadly drunk at that time. They tried to inquire from Ajay about Sanjay, but he was not in his senses. Someone from the family of Ajay gave a telephone call and summoned some boys to quarrel with them. Six or seven boys reached there and started quarreling with them. When they did not give any clue about Sanjay, then they told them that they would lodge a report and came back to their house. In the evening Manish went to the house of 12 his mother and came to know that Sanjay had not returned. Sanjay was an alcoholist and used to return at about 11pm or 12pm in the night, as such Manish though that he would return home late that night and therefore he came back to his tenanted accommodation.
18. When Sanjay did not return home, on the next day, Geeta along with her cousin brother Parvesh and brother Monu went to PS. Complaint Ex.PW1/A was written by Parvesh and was given in the name of Geeta to the police station.
19. On 21.10.08 at about 9.45am, an information was received by HC Vinod Kumar from wireless operator that one person was lying unconscious beneath Shahdara flyover, near liquor vend. An entry to this effect was made by HC Vinod Kumar in DD register at Sr. No. 12A and DD entry Ex.PW10/A was given to ASI Pawan Singh for investigation. On receipt of DD No. 12A at about 9.45am, ASI Pawan Singh along with Constable Om Prakash went to beneath flyover, near liquor vend, G.T. Road, Shahdara and found one person lying dead on the ground. He made inquiries from nearby with regard to identity of the deceased, but it could not be ascertained. As such he called photographer, who took photographs of the spot from different angles. He prepared inquest proceedings and took the deceased to GTB Hospital. He moved an application to the doctor at GTB Hospital, vide request letter Ex.PW7/D for preserving the dead body for 72 hours. He sent wireless messages. Particulars were also given to missing cell, North-East District to ascertain the identity of the deceased. On 23.10.08, family members of deceased reached mortuary, GTB Hospital and identified the deceased vide Ex.PW7/E and Ex.PW7/F. SI Jai Bhagwan made request vide application Ex.PW13/A for postmortem examinaion, 13 which was conducted by Dr. Meghali, who gave her report Ex.PW9/A. After postmortem, dead body was given to Manish vide handing over memo Ex.PW12/B. Information was received by SI Jai Bhagwan that accused was surrendering before the Court. He came to Karkardooma Court. Accused Ajay surrendered before ACMM. After obtaining permission, he interrogated the accused, who made a disclosure statement Ex.PW12/D. He was arrested and his personal search was taken, vide memo Ex.PW12/B and Ex.PW12/C respectively. Thereafter, investigation was handed over to Inspector M.A. Khan. He along with SI Jai Bhagwan, HC Devender and accused Ajay went to flyover, G.T. Road, Shahdara, where accused pointed out the place of occurrence and pointing out memo Ex.PW12/E was prepared.
20. PW4 Sarwan Sharma @ Bachi is star witness of prosecution. He has testified that on 20.10.08 at about 10.30am, he went to the house of Sanjay to take the speaker colom. Monu, brother of Sanjay, met him on the way and stated that a quarrel had taken place. Ajay had quarreled with Sanjay. Monu asked him not to involve himself. Thereafter, he went at Mansarovar Park at the shop of Desi Theka at about 11 or 11.30am. Sanjay was also there. In the meanwhile, Ajay also reached there and started quarrelling with Sanjay and he wielded four or five forceful blows on the face and head of Sanjay due to which Sanjay had fallen on the road. Rahul @ Raju was also present at the Theka at that time. He purchased adda of liquor and left from there. In his cross-examination, he deposed that all the family members of Sanjay were not known to him. He only knew Sanjay, his brother Monu and their mother. He as well as Sanjay and Rahul used to consume liquor daily. He met Sanjay in the street. His brother Monu also met him in the street, while going to his 14 office. He along with Sanjay went to liquor vend. Accused Ajay along with Raju also reached there. He was in queue to purchase halve of liquor. When he purchased liquor and came out of the queue, he saw that a grappling was going on between Sanjay and Ajay. He saw accused giving three or five punches to the victim and he had fallen on the ground. None tried to rescue Sanjay, when Sanjay had fallen down. He left for his house. Accused left the spot on his motorcycle. He did not inform either police or family members of Sanjay as he came under grip of fear. Despite cross-examination nothing could be elicited to discredit testimony of this witness. Testimony of this witness is reliable, trustworthy and inspires confidence. Facts unfolded by this witness are found consistent. No inherent infirmity, attacking substratum of the case, is noted in his testimony. He projected sequence of events in cohesive manner. True account of events has been portrayed by him. He fared well during the course of cross-examination. Defence could not dispel the case detailed by this witness. He is a reliable witness and accountability of accused can be adjudged on his sole testimony. It is well settled that in a criminal trial, credible evidence of even a solitary witness can be formed basis of conviction. In the instant case, testimony of Sarwan Sharma @ Bachi gets support from other evidence coming on record.
21. It was submitted by the ld. Counsel for the accused that Sarwan Sharma @ Bachi is an interested witness. It may be mentioned that this witness is neither related to Sanjay nor is inimical qua the accused. The mere fact that he used to consume liquor with Sanjay does not mean that he would for that reason only would falsely implicate the accused in such a serious offence. Moreover, this witness was neither having animosity, ill-will, grudge nor any spite against the accused, which could lead the 15 Court to draw an inference that he may implicate the accused in the instant case. ld. Counsel for the accused has relied upon the decision of Hon'ble Apex Court in Suresh Chaudhary V. State of Bihar, 2003 (2) Crimes 48 (SC). I have carefully gone through this authority, wherein the sole eyewitness of the case was brother of the deceased, as such he was definitely interested in success of the case. However, hon'ble Apex Court not only found him interested, but also unreliable. Here in the case, even if Sarvan used to consume liquor with deceased, there was no such intimacy between him and the deceased that he could be termed as " interested witness" in the sense that he would falsely implicate accused Ajay in such a heinous offence, that too without any animosity, ill-will, hatred, grudge or spite against the accused. Under these circumstances, this authority does not bring any accolade for the accused.
22. Further more, testimony of this witness gets support from other evidence coming on record. PW2 Manish, brother of the deceased, had corroborated him by deposing that when he asked Ajay and Sanjay to go to their respective houses as he was going to office, at that time, Sarwan Sharma @ Bachi, friend of Sanjay, also reached there. Sanjay left with Bachi. Moreover, presence of this witness at the spot is even proved by Rahul @ Raju, who appeared as PW6 and admitted that he had gone to liquor theka at Mansarovar Park to purchase liquor. He also admitted that at about 11.15 or 11.30pm, one more person was with Sarvan Sharma, but could not tell his name and also denied that any occurrence took place in his presence. Since this witness did not support the case of prosecution on material particulars, as such he was cross-examined by the ld. Prosecutor and in the cross-examination, he admitted that Bachi 16 used to meet him at the liquor theka at Mansarovar Park. He also admitted that on the relevant day Bachi was consuming liquor along with Sanjay. However, he denied rest of the case of prosecution.
23. It is settled proposition of law that cross examination of witnesses by the party who calls him, would not efface his testimony completely. It is open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused. Law to this effect was laid down by hon'ble Apex Court in Bhagwan Singh Vs. State of Haryana, (1976) 2 SCR 921:
(AIR 1976 SC 202); Rabinder Kumar Dev Vs. State of Orissa, (1976) 4 SCC 233 : (AIR 1977 SC 170) and Syed Akhbar Vs. State of Karnatka, (1980) 1 SCR 95 : (AIR 1979 SC 1848); Khujji alias Surender Tiwari Vs. State of M.P., 1991 Cr.L.J. 2653 (1) and AIR 2000 S.C. 210, Koli Lakhsmanbhai Chanabhai Vs. State of Gujrat- that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found dependable on a careful scrutiny thereof. Even otherwise sub-section (2) of section 154 of the Evidence Act permits the Court to rely on evidence or part of evidence of such a witness. Hence, it is held that deposition of Rahul @ Raju cannot be discarded altogether. His testimony confirms the presence of PW4 Sarvan Sharma @ Bachi and accused at liquor vend on the relevant day at the relevant time.
24. Moreover, ocular testimony of PW4 Sarvan Sharma @ Bachi finds corroboration from medical evidence. Dr. Meghali (PW9) conducted postmortem on the dead body of Sanjay, aged about 38 years. Said 17 dead body was of thin built wearing crème T-shirt, light grey trouser and red blue and white stripped pyjama. Mud stains were present on the back of T-shirt and trouser. Eyes and mouth were closed. All other natural orifices were NAD. Rigor mortis was present passing off stage. Postmortem staining was present over the back and fixed. Greenish discolouration present over lower abdomen. On examination, following external injuries were found over the dead body:-
1. Linear reddish abrasion obliquely placed 1.5cm X0.2cm over right antero lateral aspect of right arm 4cm above elbow joint.
2. Reddish grazed abrasion 1cm X 1cm present on right scapular area 10cm from midline and 14cm below shoulder top.
3. Reddish grazed abrasion 1.5cm X 1 cm present on right lower back 8cm from midline and 10cm above inferior gluteal fold.
4. Reddish contusion measuring 2.5cm X 1.5cm present on lateral epicondyle of left humerus.
On internal examination, she found that :-
Scalp was having extravassation of blood seen on the right occipital region measuring 8cm X 7cm.
Skull was having liner fissured fracture on right posterial fossa as shown in the PM report.
Brain was weighing 1400 grams. Diffused subdural haemorrhage was present over both right and left cerebral hemishphere, more on the left side. Haemorrhage seen in brain stem. Contusion seen on the base of left front lobe, left ventricular bleed seen. Intracerebral haemorrhage seen in left frontal lobe. Epidural haemorrhage measuring 3 X 4cm seen in posterial cranical fossa at the fracture site described above. Neck and ribcage were NAD. Lungs were weighing, 500 grams and 18 450 grams in respect of right and left lungs respectively. Heart was weighing 220 grams and was NAD. Stomach contained brownish fluid and walls were NAD. Intestine contained fluid and gases. Intestinal loop show greenish discolouration due to putrification. Walls are softened.
Liver was weighing 1500 grams and was congested. Spleen weighed 100 grams congested and kidneys were weighing 100 grams each and were congested. Pelvis and vertibra were NAD and urinary bladder was empty. Walls were also NAD. Viscera was preserved for chemical examination under seal of AK to rule out intoxication in saturated solution of common salt and sodium floride powder in blood. Sealed pullanda containing clothes of the deceased along with sample seal were handed over to the IO.
Time since death was about two and half days. Cause of death was opined to be shock as a result of antemortem head injury produced by blunt force impact. She further detailed that internal head injuries were sufficient to cause death in ordinary course of nature. She proved her report to this effect as Ex.PW9/A.
25. It was submitted by ld. Counsel for the accused that doctor had admitted in her cross-examination that injuries at Sr. No. 1 to 3 were not possible due to blows of fist. Only injury No.4 is possible by blow of fist. These observations do not come to rescue of accused, inasmuch as stated above, as per opinion of doctor, internal head injuries were sufficient to cause death in ordinary course of nature. Injuries No. 1 to 3 were external injuries. He further submitted that doctor had opined that blunt force impact can be caused by blunt and hard weapons, like stick, iron rod etc. Here again, he does not get any benefit, inasmuch as there is force in submissions of the ld. Prosecutor that these two instances, that 19 is, stick and iron rod were only illustrative and not exaustive, inasmuch as doctor had gone to depose word " etc" . It is a matter of common knowledge that " fist blows" are also covered under the category of " blunt force impact" . As per testimony of PW4 Sarvan Sharma @ Bachi, accused had wielded four or five forceful blows on the face and head of Sanjay. Head was vital part of the body. As per findings of the doctor, there was haemorrhage in brain stem. There were intracerebral haemorrhages seen on left frontal lobe. Epidural haemorrhage measuring 3 X 4cm was seen in posterial cranial fossa at the fracture site. As such the blunt force impact given by blow on the head of Sanjay proved fatal. The result of the same is that ocular testimony of PW4 Sarvan Sharma @ Bachi finds substantial corroboration from medical evidence too.
26. Besides that Smt. Sarla (PW3), mother of deceased, had testified that on 27.10.08, accused Ajay made extra judicial confession before her, inasmuch as he came to her and stated that he had killed her son and thereafter ran away.
27. During the course of arguments, no arguments were addressed by ld. Defence counsl regarding this extra judicial confession made by accused to mother of deceased. However, he has relied upon :
1. 2006 (3) Crimes 93 (SC), Sunny Kapoor Vs. State (UT of Chandigarh);
2. 152 (2208) Delhi Law Times 750 (DB), Mohd. Jamil Vs. State of NCT of Delhi;
3. V (2003) SLT 45, State of Rajasthan Vs. Rajaram probably to show that extra judicial confession alleged to have been made by the accused to mother of deceased cannot be relied upon.
28. As regards the legal proposition is concerned, it is well settled law that a conviction can be based upon extra judicial confession, provided it 20 is found to be genuine and true. However, as a matter of caution, the Courts do seek corroboration to an extra judicial confession. It goes without saying that if the extra judicial confession is voluntary and true and is made in a fit state of mind, it can be relied upon by the Court. Reference can be made in this regard to observation made by hon'ble Apex Court on Kavita Vs. State of Tamil Nadu, AIR 1998 SC 2473, wherein it was held as under :-
" There is no doubt that a conviction can be based on extra judicial confession, but is well settled that in the very nature, itself, it is a weak piece of evidence and it is to be proved like any other fact, value thereof depends upon veracity of the witness to whom it is made. It may not be necessary that only words used by the accused must be given, but it is for the Court to decide on the acceptability of such evidence and credibility of the witness" .
29. Turning to the case in hand, testimony of PW3 Sarla, before whom, extra judicial confession has been made by the accused, is trustworthy and there is no reason to disbelieve her version.
30. As regard authorities relied upon by the ld. Counsel for the accused is concerned, I have carefully gone through those authorities. With due respect, none of the authorities helped him. Sunny Kapoor (supra) was a case of extra judicial confession, which was made by the accused before a social worker. However, on facts it was found that there was no evidence to show that accused knew the social worker and what statement was made by way of extra judicial confession before that social worker and why the accused had made confession before him. Under those circumstances, extra judicial confession was not relied upon.
21 Similarly, in Mohd. Jamil (supra) and Raja Ram (supra) the extra judicial confession made by the accused was not relied upon, in view of peculiar facts and circumstances appearing in those cases. However, in the instant case, it has come on record that both accused as well as deceased were living in the same premises and therefore possibility of making extra judicial confession by the accused before mother of deceased cannot be ruled out. In view of authorities, referred above, and keeping in view that fact that extra judicial confession is a weak type of evidence and therefore requires corroboration in the instant case, I am of the considered opinion that in view of discussions made above, the same finds substantial corroboration from ocular testimony of Sarvan Sharma @ Bachi, coupled with medical evidence.
31. As regards the plea of ld. Counsel for accused that there is no independent witness, despite the fact that it is admitted by PW15, Inspector M.A. Khan that there were many shops near the place of occurrence and liquor shop was also there, here, it may be mentioned that Inspector Khan had testified that he had requested public persons to join the investigation, but none had agreed. It is a matter of common experience that now a days, public persons are generally reluctant to join police proceedings. There is a general tendency of apathy and indifference. This attitude of indifference is writ large in the instant case, inasmuch as PW4 Sarvan Sharma @ Bachi, who is an eye-witness to the incident and was well known to the accused as well as deceased, did not intervene in the matter, when deceased was being assaulted by the accused. He had admitted that many persons were present there at that time, but none tried to rescue Sanjay. In the face of this evidence, coming on record, there is no reason to disbelieve testimony of M. 22 A.Khan, Inspector, that despite his request to the shopkeepers, none agreed to join proceedings. In Krishna Mochi Vs. State of Bihar, (2002) 6 SCC 81, it was observed by hon'ble Apex Court as under :-
" It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ration of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high- ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at the times under the stress of cross- examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days, it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing 23 social structure he wants to remain indifferent."
32. Under these circumstances, the mere fact that there is no independent witness is not fatal to the case of prosecution. As regards submissions of ld. Counsel for the accused that prosecution case suffers from infirmities due to non-examination of material witnesses, inasmuch as other sisters of Geeta have not been examined by the prosecution. It may be mentioned that same is not fatal, inasmuch as section 134 of the Evidence Act attaches importance to the quality than to the quantity of the evidence, by providing that no particular number of witness in any case, is required for the proof of any fact. Proof of a fact would depend upon the character of witness and his competency to speak to that fact. It is not enough to prove a fact that a number of witness should assert it. No fix number of witness is needed to prove a fact, even testimony of one witness is sufficient. Law to this effect was laid by the hon'ble Apex Court in State Vs. Valula Bhushan, AIR 1988 S.C. 236; State Vs. Jayaram Shiva Tagore, AIR 1991 S.C. 1735 and State Vs. Ramju Surja, 1983 Cr.L.J. 1105.
33. It may be recalled that as per testimony of Geeta, on receipt of telephonic information from her mother that the incident of quarrel had taken place with Sanjay, she along with her sisters, namely, Neeru and Meenu had come to the house of her mother. Consequently, Neeru and Meenu were the witnesses to the same fact as were deposed by Geeta. There was no reason to disbelieve testimony of Geeta and therefore non- examination of her sisters is not fatal to the case of prosecution. Similarly, as regards non-examination of HC Karan Singh, who brought Sarvan Sharma @ Bachi and Rahul to police, is concerned, it has been observed by hon'ble Supreme Court in Krishna Mochi (supra) that non-
24 examination of any witness would not affect the case of prosecution, if the witness is not material one. In the instant case, mere fact that HC Karan Singh brought this witness to police station does not mean that he was such a material witness that his non-examination would have affected the case of prosecution.
34. As regards submissions of ld. Counsel for the accused that there are number of infirmities, contradictions and discrepancies in the testimony of the witnesses, and as such no reliance can be placed on the same. However, it may be mentioned that discrepancies, infirmities and contradictions referred by ld. Defence counsel are trivial in nature and they are bound to occur due to lapse of time, memory and power of observation.
35. In Krishna Pillai Vs. State of Kerala, 1981 Cr.L.J. 1743 : AIR 1981 SC 1237, it was held by hon'ble Apex Court as under :-
''The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there but that is a short coming from which no criminal case is free. The main thing to be seen is wheher those inconsistencies etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases.''
36. In Sidhan Vs. State of Kerala, 1986 Cr.L.J. 470, it was held :--
''Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact such discrepancies are inevitable. Such minor discrepancies 25 only add to the truthfulness of their evidence. If on the other hand these witnesses have given evidence with mechanical accuracy that much have been a reason to contend that they were giving tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the Courts if the evidence of the witnesses is found acceptable on broad probabilities.''
37. Dealing with the aspect of contradictions, inconsistencies and exaggeration or embellishments, hon'ble Apex Court in Kirshna Mochi (supra) has observed as under :-
" If a whole body of the testimony is to be rejected because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stage. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be satisfied with care. One hardly comes across a witness, whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishments. An attempt has to be made to separate the grain from the chaff."
At the other place, it was observed :-
" Thus, in a criminal trial a prosecutor is faced with so 26 many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower.... Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the Court should tread upon it, but if the same are boulders, the Court should not make an attempt to jump over the same."
38. The principles that can be culled out from the aforesaid decisions are minor discrepancies and inconsistencies cannot give (sic) importance. The Court has to see whether inconsistencies can go to the root of the matter and affect the truthfulness of the witnesses while keeping in view that discrepancies are inevitable in case of evidence of rustic and illiterate villagers, who speak them after long lapse of time. It is also observed in Sidhan Vs. State of Kerala (supra), that minor discrepancies need not be taken into account by the Courts, if the evidence of the witness is found acceptable on broad probabilities.
39. Discrepancies pointed out by the ld. Counsel for the accused are only of minor in nature and does not affect the case of prosecution. For the same reason, authority Sukarbhai Bhalubhai (supra) relied by the counsel for the accused does not help him. In the instant case, there are no material omissions and contradictions in the evidence of witnesses.
40. Much emphasis has been laid by the ld. Counsel for the accused for submitting that although charge against accused is that he assaulted Sanjay with blunt force impact in front of liquor vend. However, entire evidence revealed that it was beneath Shahdara flyover, as such it was 27 submitted that place of occurrence is not established beyond reasonable doubt. At the first site, this plea seems to be attractive. However, perusal of evidence, led by the prosecution, goes to show that same is devoid of merits, inasmuch as it has come in cross-examination of PW7 Pawan Singh ASI that distance between the spot, where dead body was lying, and liquor vend is hardly of 50 yards. Similarly, PW8 Om Prakash, Constable, had deposed that liquor vend was situated at a distance of 20-25 paces away from the place, where dead body was lying. Under these circumstances, there was hardly any difference between the liquor vend and the place, where dead body was found lying.
41. Aforesaid discussions establish beyond reasonable doubt that in the morning of 17.10.08, accused Ajay along with his maternal uncle Kale had beaten deceased Sanjay. Thereafter, Sanjay left his house and went to liquor vend with Sarvan Sharma @ Bachi. Accused also reached there. Thereafter, accused gave forceful blows on the face and head of Sanjay, which proved fatal, and Sanjay succumbed to those injuries. Case of the accused is one of denial simplicitor. He has failed to raise even a iota of doubt in the case of prosecution. As such offence under section 302 IPC has been established by the prosecution against accused Ajay to the hilt.
42. Another charge against accused is for offence under section 201 IPC for causing evidence of murder to disappear. In this regard, it may be mentioned that prosecution has failed to lead any evidence that accused concealed the dead body of Sanjay and placed it near Shahdaray flyover, with intent to cause the evidence of murder disappear and to screen himself from legal punishment, inasmuch as the place of incident as well as Shahdara flyover were in near vicinity. Dead body was found lying 28 under Shahdara Flyover, which does not show that accused had concealed it with intent to cause evidence of murder disappear or screen himself from legal punishment. As such, prosecution has failed to prove its case against accused for offence under section 201 IPC.
43. In view of the foregoing discussions, prosecution has been able to prove it case beyond shadow of reasonable doubt against accused for offence punishable under section 302 IPC. Since prosecution has failed to prove its case against accused Ajay for offence under section 201 IPC, as such he is acquitted of the charge for said offence. However, he is held guilty and convicted for offence punishable under section 302 IPC.
Announced in the Open Court (Sunita Gupta)
On this 31st day of August, 2009 District Judge-VII/NE-cum-ASJ,
Karkardooma Courts, Delhi.
29
IN THE COURT Ms. SUNITA GUPTA : DISTRICT JUDGE-VII/NE-CUM- ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI : S.C. No. 31/09
State Vs. Ajay Kumar S/o Devi Parkash, R/o 1/9681, Gali No.6, Pratap Pura, Shahdara, Delhi.FIR No. 340/08
PS Shahdara U/s 302 IPC.
ORDER ON THE POINT OF SENTENCE :-
Leniency in punishment has been claimed by Sh. Naveen Singhla, Advocate, for the convict. He presents that convict is a young man, aged about 38 years. convict has his wife and 10 months old child to look after. He further submits that it is not a rarest of rare case to award capital punishment to the convict.
2. On 20.10.08 at about 10am, Sanjay was beaten by Ajay and his uncle Kale. Thereafter, at about 11.30am, Sanjay and Ajay were present at liquor vend, Mansarovar Park, G.T. Road, Shahdara, Delhi. Convict Ajay had beaten Sanjay with fist and kick blows. Sanjay fell on the ground and succumbed to his injuries. Postmortem on the dead body of Sanjay was conducted. Dr. Meghali opined that cause of death was shock as a result of antemortem injury produced by blunt force impact. She had also opined that head injuries sustained by deceased Sanjay were sufficient to cause his death in ordinary course of nature.
3. From facts and circumstances detailed above, coupled with mitigating circumstances surrounding the convict person, I do not find it to be "a rarest of rare case", where capital punishment should be awarded.
Ends of justice would be met, if lessor punishment is awarded. Consequently, it is hereby ordered that convict Ajay shall undergo imprisonment for life and to pay a fine of Rs.5,000/- for offence of murder, 30 punishable under section 302 IPC. In default of payment of fine, he would further undergo RI for one year.
4. Convict Ajay shall also get benefit of period already undergone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to him free of cost.
Announced in the Open Court (Sunita Gupta) On this 4th day of September, 2009. District Judge-VII/NE-cum-ASJ, Karkardooma Courts, Delhi.