Delhi District Court
State vs (1) Kishan @ Ram Kishan (Abated) on 27 July, 2022
-1-
IN THE COURT OF MS. SHEFALI SHARMA: ADDL. SESSIONS JUDGE-02
( NORTH ):ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 269/2017)
FIR No. 63/2017
Police Station Adarsh Nagar
Charge sheet filed 302/34 IPC & 25/27 Arms
Under Section Act
Charge framed Under 302/34 IPC & 25/54/59
Section Arms Act
State V/s (1) Kishan @ Ram Kishan (abated)
S/o Banwari Lal
(2) Sagar @ Rajkumar
S/o Banwari lal
(3)Banwari Lal (abated)
S/o Sh. Sawan Ram
All R/o N-25, A-153, Lal Bagh,
Azad Pur, Delhi.
......Accused persons
Date of institution 08.05.2017
Arguments concluded on 19.07.2022
Judgment Pronounced on 27.07.2022
Decision Acquitted
JUDGMENT
BRIEF FACTS
1. Events with set the prosecution machinery into motion is that on 08.02.2017 at about 9:26 pm, on receipt of DD No.73B at PS Adarsh Nagar SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 1 of 38 State Vs. Kishan @ Ram Kishan Etc. -2- from BJRM Hospital, where the one person named Munna was found brought declared dead with the alleged history of fall from the floor and initially the FIR was registered under Section 304A IPC. However, after the postmortem was conducted and investigation made, Section 302 IPC was incorporated as the postmortem revealed that the death was caused due to hemorrhage, secondary to injury to the pulmonary artery by a sharp cutting/stabbing instrument and the injury caused (injury no.7) is sufficient to cause death in ordinary course of nature. On the basis of the statement of one eye witness Gyatari Devi, who is also the sister of the deceased, the case was made out against the accused persons namely Kishan @ Ram Kishan, Sagar @ Raj Kumar and Banwari Lal as she stated that on 08.02.2017 she along with her children and her brother Munna was present at their house and at that time her husband was not there. Her brother Munna was having visiting terms with Kishan and Sagar. At around 8.30 p.m. on 08.02.0217 the said Kishan and Sagar called his younger brother Munna at their house and Munna told her that he is coming back soon. The house of Sagar and Kishan has been built up only upto the ground floor which is at a distance of 20-25 mtrs from her house. After sometime she heard loud cries and thereafter, she went to the roof of her house and saw that both Sagar and Kishan started beating her brother and were shouting at him. This whole incident was taking place on the roof of under construction house of Banwari Lal. Her brother was crying for help. During this time Sagar was having one sharp edged weapon in his hand, with which he assaulted on the chest of his brother and at that time Kishan caught hold of him and thereafter, Banwari Lal pushed his brother towards down going under constructed staircase. She alighted from the roof of his house by that time, accused persons ran away.
SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 2 of 38 State Vs. Kishan @ Ram Kishan Etc. -3-
2. The postmortem of the dead body was got conducted and thereafter the body was handed over to its relatives. The blood sample, clothes, etc. were seized by the IO. During investigation, the IO also recorded statement of the witnesses and after completion of investigation, charge sheet for the offence u/S. 302/34 IPC & 25/27 Arms Act was filed in the court. On 13.07.2017, IO Inspector Sheeshpal filed the supplementary charge sheet qua a FSL result.
CHARGE
3. On committal of the case to the Court of Sessions, vide order dated 28.03.2018 charge u/S. 302/34 IPC against all the three accused persons namely Kishan @ Ram Kishan, Sagar @ Raj Kumar and Banwari Lal was found to be made out against the accused persons. Also, charge under Section 25 Arms Act had been framed against accused Sagar @ Raj Kumar. The formal charge(s) as above were framed on the said date to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Thereafter, prosecution in support of its case have examined 27 witnesses in all.
FORMAL WITNESSES
5. PW1 is Ct. Sandeep, who was posted at Mobile Crime Team, North West District and on 08.02.2017, he along with In-charge Crime Team, SI Manjur and Ct. Sandeep (finger print proficient) reached at the spot and took 9 photographs through digital camera. The said photographs were converted into and proved the same are Ex. PW1/A1 to Ex. PW1/A9. He has SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 3 of 38 State Vs. Kishan @ Ram Kishan Etc. -4- also proved the certificate u/s 65B Evidence Act as Ex. PW1/B. PW2 is HC Satinder, who deposed that on 08.02.2017 at about 10.27 p.m. he received a message from mobile no. 8802329358 regarding "chaku maar diya hai, admi hospital mein hai". He filed the computer generated copy of PCR form no.1 as Ex.PW2/A. PW3 is SI Madan Gopal. He filed the certificate under Section 65B Indian Evidence Act as Ex.PW3/A regarding message received at channel no.138.
PW5 is SI Manzoor Alam, who deposed that on 08.02.2017 he was posted at Mobile Crime Team and on that day on receipt of call, he alongwith his staff i.e. Ct. Sandeep (photographer) and Ct. Sandeep (finger print proficient) went to the spot i.e. N-25, A-154, Lal Bagh, Delhi, where he met IO ASI Kanti Prasad of PS Adarsh Nagar. That he inspected the spot and prepared his detailed report Ex.PW5/A. PW6 is Ct. Satender, who deposed that on 14.03.2017, on the instructions of IO, he received five sealed exhibits in sealed condition from MHCM along with FSL form, vide RC No. 38/21/17 to deposit the same in the FSL. He deposited the same in FSL and obtained the acknowledgment and handed over the same to MHC(M).
PW7 is Sh. Mangal, who on 10.02.2017 identified the dead body of deceased Munna, who was his brother in law, in the mortuary of BJRM Hospital. He proved his statement Ex.PW7/SA recorded in this regard by the police. He deposed that he cannot tell as to how his brother in law/deceased Munna died.
PW8 is HC Munni Lal, who deposed that on 10.02.2017, he was working as MHC(M) at PS Adarsh Nagar and on that day ASI Kanti Prasad deposited three sealed pullandas and two sample seals in the maakhana. He SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 4 of 38 State Vs. Kishan @ Ram Kishan Etc. -5- made the entry in this regard in Register no.19 at Sl. No. 2759/17 and proved the same as Ex.PW8/A. He further deposed that on 12.02.2017, Inspector Anil Malik deposited one sealed pullanda and one sample seal in the maakhana. He made the entry in this regard in Register no.19 at Sl. No. 2760/17 and proved the same as Ex.PW8/B. He further deposed that on 07.03.2017, two sealed exhibits were sent to BJRM Hospital for opinion through Ct. Vinod vide RC No. 31/21/17. He made the entry in this regard in Register no.19 and proved the same as Ex.PW8/C. He further deposed that on 14.03.2017, three sealed exhibits were sent to FSL for opinion through Ct. Satender vide RC No. 38/21/17. He made the entry in this regard in Register no.19 and proved the same as Ex.PW8/D. He has proved the RCs as Ex.PW8/E and Ex.PW8/F respectively. He has also proved the acknowledgment from FSL as Ex.PW8/G. PW10 is HC Vinod Kumar, who deposed that on 07.03.2017 on the instructions of IO Inspector Sheesh Pal, he took two sealed pullandas to BJRM Hospital vide RC No. 31/12/21 and after depositing the same, returned back to PS and handed over the acknowledgment to MHC(M)). He further deposed that the pullandas were not tempered in any manner.
PW12 is Inspector Manohar Lal, Draftsman, who deposed that on 22.03.2017, on the call of IO Inspector Sheesh Pal, he went to PS Adarsh Nagar from where he accompanied IO Inspector Sheesh Pal and Inspector Anil Malik to the place of occurrence i.e. first floor, open roof of jhuggi no.M-25/A- 153, near Jhandewala Chowk, Lal Bagh, Azad Pur, where on the pointing out of Smt. Gayatri Devi, he took the measurements and prepared rough notes and on the basis of the same, he prepared the scaled site plan Ex.PW12/A on 23.03.2017 and thereafter destroyed the rough notes and measurements.
SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 5 of 38 State Vs. Kishan @ Ram Kishan Etc. -6- PW13 is Sh. Avdhesh, who deposed that on 10.02.2017, he went to BJRM Hospital and identified the dead body of his brother in law/ deceased Munna. He further deposed that after postmortem, the dead body was handed over to them vide receipt Ex.PW13/A. PW14 is Ct. Deepak, who deposed that on 08.02.2017, he was posted as Duty Ct. at BJRM Hospital and on that day, Munna S/o Unknown was admitted in the hospital by his neighbour Kishan, who was medically examined vide MLC No. 129141/14. He further deposed that Munna was declared brought dead and he accordingly made a call at PS Adarsh Nagar and informed the concerned duty officer about the aforesaid facts and on his information, duty officer lodged DD No.73B in the roznamcha.
PW17 is Sh. Ashok Maurya, Dy. Manager, Aircel Ltd., who deposed that he has been deputed by Associate Vice President of Aircel Company to depose on behalf of Sh. Shishir Malhotra, Nodal Officer. Sh. Shishir Malhotra has left the services of the company and I am identifying the handwriting and signatures of Sh. Shishir Malhotra, as I have seen him writing and signing during official work.
He further deposed that on 23.03.2017, Sh. Shishir Malhotra furnished certified copies of the CAF Ex. PW17/A (OSR), Voter identity card of Smt. Gayatri W/o Mangal Kumar Ex. PW17/B, certified copies of CDR Ex. PW17/C for the date of 08.02.2017 to 09.02.2017 running into three pages in respect of mobile no. 8802329358 which bears the initials of Sh. Shishir Malhotra at point A with stamp of the company and certificate u/s 65 B of Indian Evidence Act to authenticate the correctness of computerized copies of CDR is Ex. PW17/D. Sh. Shishir Malhotra also furnished cell ID which is Ex. PW17/E SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 6 of 38 State Vs. Kishan @ Ram Kishan Etc. -7- bearing the initials and stamp of Sh. Shishir Malhotra at point A. The forwarding letter dated 23.03.2017 issued to Deputy Commissioner of Police/IO is Ex. PW17/F which bears the signatures of Sh. Shishir Malhotra at point A. PW18 is Sh. Ramesh, Assistant Clerk, who had brought the summoned record pertaining to Notification no. F/13/451/79-Home(G) dated 29.10.1980. He has proved the Notification issued by the then Deputy Secretary Home (G) Sh. Nathu Ram as Ex. PW18/A. PW19 is Ct. Vikas, who deposed that on 10.02.2017, he was posted outside the mortuary of BJRM hospital for taking care of dead body of Munna S/o Hari Ram. The dead body was already deposited in the mortuary of BJRM Hospital. That on the same day, the dead body was identified by the relatives of the deceased and after the postmortem, the doctor/hospital handed over three sealed pulandas and two sample seals, which were seized by ASI Kanti Prasad vide seizure memo Ex. PW19/A. PW21 is Sh. Surender Kumar, who deposed that today, he has brought the summoned record i.e. Certified copies of CDR, in respect of Mobile No. 9811874410, in the name of Sh. Ram Kishan S/o Sh. Banwari for the period from 08-02-2017 to 09-02-2017. That the CAF is Ex. PW21/A attached with copy of Voter I card Ex. PW21/B, Certified copies of CDR for the aforesaid period is Ex. PW21/C and certificate u/s 65 B of Indian Evidence Act to authenticate the correctness of computerized copies of CDR is Ex. PW21/D. PW22 is W/ASI Sunaina, who deposed that on 09.02.2017, he was posted at PS Adarsh Nagar as ASI and was working as DO from 8:00 am to 4:00 pm. That on that day, at about 1:35 pm, ASI Kanti Prasad presented a rukka, on the basis of which, he registered the present FIR on a computer with SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 7 of 38 State Vs. Kishan @ Ram Kishan Etc. -8- the help of computer operator which is Ex. PW22/A. He also made endorsement on rukka which is Ex. PW22/B. He also issued certificate u/s 65- B Evidence Act with respect to the present FIR which is Ex. PW22/C. That after registration of FIR, he handed over original rukka and copy of FIR to Ct. Virender to be handed over to ASI Kanti Prasad.
PW23 is Sh. Ramu, who deposed that on 10.02.2017, he went to BJRM Hospital mortuary, where he identified the dead body of his brother namely Munna vide identification memo Ex. PW23/A. That after the postmortem, the dead body of Munna was handed over to them vide dead body handing over memo Ex. PW13/A. EXPERT EVIDENCE
6. PW9 is Dr. Monika Shahi, Sr. Scientific Officer (Physics), FSL Rohini. She deposed that vide letter no. 974/SHO dated 14.03.2015 their office received two sealed parcels in connection with FIR No. 63/17 and the same were marked to her for examination and opinion purpose. She further deposed that she opened the parcels containing Ex.1a to 1d and Ex.2 and after examination, she prepared the report Ex.PW9/A and the case exhibits were resealed.
PW11 is Ms. Seema Nain, Assistant Director (Biology), FSL, Rohini, Delhi, who deposed that vide letter no. 974/SHO/Adarsh Nagar dated 14.03.2017, their lab i.e. FSL Rohini, Delhi received three sealed parcels in connection with case FIR No. 63/17 and the said parcels were marked to her. She had checked the said parcels and found the seals over the said parcels were intact and tallied as per the forwarding authorities letter.
She further deposed that out of the said three parcels, one was sealed polythene, one was sealed plastic box and one was sealed paper SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 8 of 38 State Vs. Kishan @ Ram Kishan Etc. -9- envelope. She had opened the said parcels and the material contained into them were marked as Ex. 1 to Ex. 3. That upon examination, blood was detected on exhibits 1a, 1b, 2 & 3 and upon DNA examination, it was concluded that DNA Profile generated from the source of Ex. 1a and 1b i.e. shirt and gersy of deceased, Ex. 2 i.e. knife and Ex. 3 i.e. blood gauze of deceased was sufficient to conclude that DNA Profile generated from the source of Ex. 3 i.e. blood gauze of deceased was similar with the DNA Profile generated from the source of Ex. 1a and 1b i.e. shirt and gersy of deceased and Ex. 2 i.e. knife. She further deposed that after examination, she had prepared report dated 05.07.2017 Ex. PW11/A. PW20 is Dr. Neeraj Chaudhary, who deposed that he has been deputed by MS to depose on behalf of Dr. Vaibhav and Dr. Anuj Kumar of BJRM Hospital as Dr. Vaibhav and Dr. Anuj Kumar have left the services of the hospital and he can identify the handwriting and signatures of Dr. Vaibhav and Dr. Anuj Kumar, as he has seen them writing and signing during official work.
He further deposed that on 08.02.2017, at 9:15 pm, Munna, 20 years male was brought by Kishan with alleged history of fallen from floor as told by brought by. Patient declared brought dead on 08.02.2017, at 2:20 pm. The dead body was handed over to ASI Kanti Prasad. That the MLC No. 129141 Ex. PW20/A was prepared by Dr. Vaibhav, under the supervision and control of Dr. Anuj Kumar.
He further deposed that on the same day, at 2:49 am, Kishan S/o Banwari Lal, 25 years male was brought by Ct. Abhlinder with alleged history of physical assault. That the patient conscious oriented and smell alcohol from breath. That on local examination, avulsion of skin of nose of size 2 x 1.5 cm. He further deposed that the MLC No. 128772 Ex. PW20/B was prepared by SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 9 of 38 State Vs. Kishan @ Ram Kishan Etc. -10- Dr. Vaibhav under the supervision and control of Dr. Anuj Kumar. That the said doctor opined nature of injury simple.
PW25 is Dr. Anshul Saxena, Assistant Professor, Department of Forensic Medicine, SMSR, Sharda Hospital, Greater Noida, UP. He deposed that on 10.02.2017, he conducted postmortem on the dead body of Munna S/o Hari Ram, 20 years male. That after conducting postmortem, he opined the cause of death due to hemorrhage, secondary to injury to pulmonary artery, by sharp cutting/stabbing instrument. Injury no. 7 as mentioned in external injuries is sufficient to cause death in ordinary course of nature. He further deposed that time since death less than 12 hours at the time of preservation of dead body in mortuary. After postmortem, clothes, blood sample on gauze piece and viscera in saturated solution of common salt and blood with sodium fluoride as preservative were sealed with his seal and handed over to police / IO. He proved the detailed postmortem report as Ex. PW25/A. That the postmortem report is running in three pages. He further deposed that he received 11 inquest papers and put his initials on the same.
He further deposed that on 09.03.2017, on receipt of the application for subsequent opinion moved by the IO / police official of PS Adarsh Nagar with copy of FIR, copy of Road Certificate, seizure memo of knife, sample seal and two parcels no. 1 & 2 containing the weapon of offence and clothes, he perused the documents and opened the parcel no. 1 which contained a knife. He prepared the rough sketch of knife on annexure 1 as Ex. PW25/B. He examined the knife and mentioned the dimension of knife and opined that injury no. 7 as mentioned in postmortem report already Ex. PW25/A, can be inflicted by the knife provided and regarding cut mark on the cloth is beyond his purview of expertise. He did not open the parcel no. 2. He proved the subsequent opinion no. 058/17 dated 09.03.2017 as Ex. PW25/C. SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 10 of 38 State Vs. Kishan @ Ram Kishan Etc. -11- After examining the exhibits, he resealed the same with my seal.
MATERIAL/EYE WITNESSES
7. PW4 is Smt. Gayatri Devi, who deposed that on 08.02.2017, she along with her children and younger brother namely Munna (since deceased) were present in their house. That at that time, her husband was not present in the house and in the meanwhile, Kishan came to their house and called her brother to his house, as there were visiting terms between her brother Munna and Kishan and Sagar.
That at about 8:30 pm, her brother told her that he was just coming after visiting the house of Kishan. She further deposed that the house of Kishan is situated at a distance of 20-25 meters from her house and their house is a single storey. That After 2-3 minutes, she heard the screams that "Munna bachao" and on hearing the above words, she immediately went upstairs from where the house of Kishan was visible. That at that time, accused Kishan, Sagar, Banwari Lal, alongwith her brother Munna and two ladies of the said house were present on the roof of their house and accused Kishan had caught hold my brother from behind, while accused Sagar was having some sharp edged weapon in his hand and stabbed the same on the left side of the chest of Munna.
She further deposed that after receiving the stab injury, her brother fell down on the cot lying there and thereafter, accused Banwari Lal pushed my brother Munna from down the staircase, which was built up inside their house. She immediately came down and rushed towards the house of accused persons and at that time, accused Banwari Lal was present in the house, while other accused as well as my deceased brother Munna were not present there.
She further deposed that she asked from accused Banwari Lal SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 11 of 38 State Vs. Kishan @ Ram Kishan Etc. -12- where is her brother and in response to her question, accused Banwari Lal told that "abhi dheeraj rakh, tera bhai abhi aa jayega". She watched there for some time, but since she could not understand anything, therefore, she called at 100 number thrice. She further deposed that after a long delay, PCR came to the spot and they did not ask anything from her and she came back to my house and remained there alongwith her children.
She further deposed that after four days, local police visited her, made inquiries from her and recorded her statement in this regard. Thereafter, she took the police officials to the spot, where her brother Munna had received the knife injury from accused persons and on her pointing out, police inspected the spot and prepared site plan Ex. PW4/A in this regard and thereafter, police recorded her supplementary statement. That later on, police brought the draftsman and she visited the spot and on her pointing out, draftsman inspected the spot and IO also recorded her statement in this regard.
She was further examined in chief as a CD with regard to PCR call dated 08.02.2017 left to put to the witness. IO Inspector Sheesh Pal produced the laptop and the CD available on judicial record was played. But before playing the CD, PW4 stated that though she dialed 100 number but the information was given by her daughter Pooja and she can identify the voice of Pooja and one of her neigubour Deepak. PW4 after hearing the conversation, identifying the voices and exhibited the said CD as Ex.4/1.
WITNESSES OF INVESTIGATION
8. PW16 is Ct. Sandeep, who deposed that on 08.02.2017, he was posted at PS Adarsh Nagar and was on duty as DD writer. That on that day, at about 9:26 pm, Duty Ct. Deepak from BJRM Hospital had given an information over telephone that Munna S/o unknown was admitted in the SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 12 of 38 State Vs. Kishan @ Ram Kishan Etc. -13- aforesaid hospital by his neighbour Kishan, who was medically examined vide MLC No.129141/17. Munna was declared brought dead. Accordingly, he had lodged DD No. 73B in roznamcha and handed over one copy of DD no. 73B to ASI Kanti Prasad, who alongwith Ct. Om Prakash for the place of occurrence. He has proved the true copy of DD no. 73B as Ex. PW16/A. He further deposed that on the same day, at about 10:33 pm, wireless operator gave an information through intercom to the effect that at H. No. N-25/A-284, T Huts, Lal Bagh, behind Laxmi Narayan Temple, one person had been caused knife injury and the injured had been admitted in hospital. He had lodged DD No. 77B in roznamcha and proved the same as Ex. PW16/B. He had informed the contents of DD No. 77B to ASI Raju Yadav.
PW24 is SI Kanti Prasad, who deposed that in the intervening night of 08/09.02.2017, he was posted at PS Adarsh Nagar. That on that day, he was on emergency duty with Ct. Om Prakash and on receipt of DD No. 73B regarding Munna admitted in the BJRM Hospital as fell down from the roof and he was admitted in the hospital by Kishan, where Munna declared brought dead, he alongwith Ct. Om Prakash went to BJRM Hospital, where he collected MLC of Munna, who was declared dead. That the dead body of Munna was preserved in the mortuary of BJRM Hospital vide application Ex. PW24/A. That thereafter, he went to A-153, Lal Bagh, Azadpur, Delhi, where he came to know that Munna fell down from the roof and staircase. The scene of crime was inspected by him and Crime team was called. That the crime team officials inspected the scene of crime and photographer took the photographs from different angles.
He recorded statement of Kishan Ex. PW24/B and he attested his thumb impression. He made endorsement Ex. PW24/C on DD No. 73B and prepared rukka. He presented the rukka to duty officer on 09.02.2017, at about SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 13 of 38 State Vs. Kishan @ Ram Kishan Etc. -14- 01:35 pm for registration of FIR and went to the spot, where he received copy of FIR and original rukka from Ct. Virender.
He further deposed that on 10.02.2017, he alongwith Ramu and Mangal, relatives of deceased Munna went to BJRM Hospital mortuary, where they identified the dead body of Munna vide their statements. He filled up form no. 25.35 Ex. PW24/D. He prepared inquest documents i.e. brief fact Ex. PW24/E, copy of FIR, DD entry and application Ex. PW24/F for conducting postmortem on the body of deceased Munna. The postmortem was conducted on the body of Munna and after postmortem, the dead body was handed over to relatives of the deceased. After postmortem, the hospital/autopsy surgeon handed over sealed exhibits alongwith sample seal which he seized vide seizure memo already Ex. PW19/A. That on 12.02.2017, he received the postmortem report which was perused by the SHO and senior officials. He handed over the file to SHO, PS Adarsh Nagar.
PW26 is Inspector Shispal, who deposed that on 03.03.2017, he was posted at PS Adarsh Nagar as Inspector (Investigation) and on that day, he received the present file for further investigation. He perused the file and found three accused(s) namely Sagar @ Raj Kumar, Kishan and Banwari were arrested and in JC till 13.03.2017. Accused Banwari Lal already expired during trial and proceedings have abated against him. File was complete in all respects except obtaining subsequent opinion from Autopsy Surgeon regarding weapon of offence i.e knife and depositing the exhibits in FSL.
He further deposed that on 07.03.2017, on his directions, Constable Vinod took the sealed pulanda from the MHCM duly sealed with the seal of UR to BJRM Hospital with his application for subsequent opinion vide RC No. 31/21/17. He further deposed that Constable Vinod deposited the Pulanda in the hospital for opinion and on 07.03.2017, he recorded the SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 14 of 38 State Vs. Kishan @ Ram Kishan Etc. -15- statement of Constable Vinod, MHCM Head Constable Munni Lal u/s 161 Cr.PC.
He further deposed that on 09.03.2017, he along with his staff went to BJRM Hospital and collected the subsequent opinion Ex.PW25/C along with sealed pullanda duly sealed with the seal of BJRM Hospital. That on 14.03.2017, on his directions, Constable Satyender took the exhibits from MHCM for depositing the same in FSL vide RC No. 38/21/17 and obtained the acknowledgment of FSL, which he deposited with the MHCM on his return to the Police Station. He further deposed that on 22.03.2017, he along with Inspector Manohar Lal Draftsman and Inspector Anil went to the scene of crime where at the instance of witness Gayatri Devi, rough notes and measurements were taken for scaled site plan and he recorded statement of Inspector Manohar Lal Draftsman and Gayatri Devi. He also deposed that during investigation, he collected the CAF and CDR of mobile numbers 8802329358 and 9811874410 and placed the same on record. He also collected FSL results Ex.PW11/A & Ex.PW9/A. He further deposed that he prepared the charge-sheet against aforementioned three accused persons which was signed by the SHO and sent to the court by the ACP concerned.
PW27 is Inspector Anil Malik, who deposed that he was posted at PS Adarsh Nagar as SHO and in the intervening night of 08/09.02.2017, an information was received vide DD No. 73B regarding Munna admitted in the BJRM Hospital as fell down from the roof and he was admitted in the hospital by Kishan, where Munna declared brought dead. That ASI Kanti Prasad along with Ct. Om Prakash went to BJRM Hospital, where they collected MLC of Munna, who was declared dead. The dead body of Munna was preserved in the mortuary of BJRM Hospital.
He also went to A-153, Lal Bagh, Azadpur, Delhi, where he came SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 15 of 38 State Vs. Kishan @ Ram Kishan Etc. -16- to know that Munna fell down from the roof and staircase. The scene of crime was inspected. The crime team officials inspected the scene of crime and photographer took the photographs from different angles. That ASI Kanti Prasad made endorsement on DD No. 73B and prepared rukka and registered the case.
He further deposed that on 10.02.2017, ASI Kanti Prasad alongwith relatives of deceased Munna went to BJRM Hospital mortuary, where they identified the dead body of Munna. That postmortem was conducted and after postmortem, the dead body was handed over to the relative of deceased and ASI kanti Prasad received the exhibits alongwith sample seal which he seized vide seizure memo. That on 12.02.2017, ASI Kanti Prasad received the postmortem report which was handed over to him. He also received the file from ASI Kanti Prasad after discussion with senior police officials. That he perused the postmortem report with other documents and after consultation with senior officials, section 302 IPC was added. He recorded the statement of Gayatri Devi.
He further deposed that on 12.02.2017, he alongwith Ct. Ankit and other staff went to the house of accused persons, where accused Sagar and Kishan were apprehended and they reached at PS Adarsh Nagar. He interrogated accused Kishan and Sagar and arrest vide arrest memos Ex. PW15/A and Ex. PW15/B respectively and conducted their personal search vide memos Ex. PW15/C and Ex. PW15/D respectively. He further deposed that noth the said accused persons made disclosure statements vide memos Ex. PW15/E and Ex. PW15/F respectively.
He further deposed that both the accused persons led them to the place of occurrence and pointed out the place of occurrence vide pointing out memos already Ex. PW15/G and Ex. PW15/H respectively. He further SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 16 of 38 State Vs. Kishan @ Ram Kishan Etc. -17- deposed that pursuant to disclosure statement, accused Sagar pointed out towards the roof of the washroom of the house of deceased Munna and got recovered one knife and stated that the said knife was used by him in the commission of offence. He had prepared the sketch Ex. PW15/J of the said knife and measured the said knife and mentioned its measurements on the sketch and thereafter, he kept the said knife in a plastic container and said plastic container was sealed with the seal of UR and seized the same vide seizure memo Ex. PW15/K. He further deposed that on the same day, he prepared site plan of the scene of crime vide site plan Ex.PW4/A. He also prepared the site plan of the place of recovery of knife Ex.PW27/A. He also deposed that both the accused persons were got medically examined and he had deposited the case property in malkhana and also recorded statement of the witnesses Ct. Ankit and supplementary statement of Gayatri Devi.
He further deposed that on 14.02.2017, he collected PCR Form Ex.PW2/A. Thereafter, on 28.02.2017, he along with Ct. Ankit and other staff went to the house of Banwari Lal and interrogated accused Banwari Lal, who has expired. He also deposed that after interrogation, effected his arrest vide arrest memo Ex. PW15/L and conducted his personal search vide memo Ex. PW15/M. That the said accused made disclosure statement vide memo Ex. PW15/N. That the accused pointed out the scene of crime vide pointing out memo Ex.PW15/O. That accused Banwari Lal was got medically examined and he recorded supplementary statement of Ct. Ankit.
He further deposed that on 03.03.2017, further investigation was conducted by Inspector Shishpal. That on 22.03.2017, he along with Inspector Shishpal, Inspector Manohar Lal went to the scene of crime, where Gayatri Devi met them and Inspector Manohar Lal took measurements and prepared SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 17 of 38 State Vs. Kishan @ Ram Kishan Etc. -18- rough notes at the instance of Gayatri Devi for scaled site plan. He further deposed that Inspector Shishpal prepared the charge-sheet against aforementioned three accused persons which was signed by him and sent to the court by the ACP concerned.
WITNESSES OF RECOVERY
9. PW15 is Ct. Ankit, who deposed that on 12.02.2017, he was posted at PS Adarsh Nagar and on that day, he had joined the investigation of the present case with IO Inspector Anil Malik. He has proved the arrest memos of accused Kishan and Sagar as Ex. PW15/A and Ex. PW15/B respectively and their personal search memos as Ex. PW15/C and Ex. PW15/D respectively. He also proved the disclosure statements made by both the accused persons vide memos Ex. PW15/E and Ex. PW15/F respectively.
He further deposed that thereafter, both the accused persons led them to the place of occurrence and pointed out the place of occurrence vide pointing out memos Ex. PW15/G and Ex. PW15/H. He further deposed that pursuant to disclosure statement, accused Sagar pointed out towards the roof of the washroom of the house of deceased Munna and got recovered one knife and stated that the said knife was used by him in the commission of offence. He deposed that IO had prepared the sketch Ex. PW15/J of the said knife and thereafter, IO had measured the said knife and mentioned its measurements on the sketch and had kept the said knife in a plastic container and said plastic container was sealed with the seal of UR and seized the same vide seizure memo Ex. PW15/K. He further deposed that both the accused persons were got medically examined and IO had deposited the case property in malkhana. That thereafter, on 28.02.2017, he had again joined the investigation of the present SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 18 of 38 State Vs. Kishan @ Ram Kishan Etc. -19- case with IO Inspector Anil Malik and on that day, IO had interrogated accused Banwari Lal and after interrogation effected his arrest vide arrest memo Ex. PW15/L and conducted his personal search vide memo Ex. PW15/M. He further deposed that the said accused made disclosure statement vide memo Ex. PW15/N. That accused Banwari Lal was got medically examined. He has also correctly identified one plastic container containing one buttondar knife as Ex. P15/1 being recovered at the instance of accused Sagar and seized during investigation.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
10. After closure of PE, the statement of the accused Sagar @ Raj Kumar and Kishan @ Ram Kishan was recorded u/s 313 Cr.P.C. on 19.04.2022, wherein they denied all the evidence put to them and stated that they were sitting on the roof of their house on 08.02.0217 and their house was under construction. That they were calculating the expenses incurred by us on the construction of their house. That in the meanwhile, Munna came to their roof by jumping over the roofs of other adjacent houses and fell down of the staircase. Then, they along with their jija and mother took Munna to BJRM Hospital. Accused Sagar further stated that he was taken from his house by the police on 10.02.2017 and kept him in the PS till 13.02.2017. Accused Kishan Ram Kishan submits that the doctor in the hospital after examining Munna opined that he is dead. Then, doctor recorded his name, phone number and address and while he was going to his house, he received a call from Ct. Kranti, who told him to reach to the PS as some inquiries were to be made from him. He further stated that ke was kept in the police station from the night of 08.02.2017 and was produced in the court on 13.02.2017.
Both the accused persons also submit that the police officials SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 19 of 38 State Vs. Kishan @ Ram Kishan Etc. -20- have falsely implicated them in this case. They further stated that their sister went to house of Munna and informed that Munna fallen from the staircase to which she retorted by saying that let Munna die and she does not care for him and lateron she falsely implicated them. Accused Sagar stated that no knife was recovered at his instance or from his possession and the said knife had been planted upon him. Both the accused further stated that there is a pakka staircase on the ground floor to first floor, a wooden ladder on first floor to second floor and there is no other ladder or staircase going up to the second floor roof.
Both the accused persons chose not to lead any defence evidence in their defence.
11. Thereafter, matter was fixed for final arguments.
ARGUMENTS
12. I have heard Sh. Harvinder Nar, Ld. Addl. PP for the State and Sh. Yashvir Singh, Ld. LAC for the accused.
13. It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature and the eye witness who is also sister of the deceased, PW4 has proved the case of the prosecution that the FSL result ExPW9/A has also corroborated the case of the prosecution and it is opined that the cut marks found on the clothes of the deceased could be caused by the knife which was the weapon of offence used by accused Sagar to murder the deceased Munna in furtherance of common intention with other co-accused persons i.e. Banwari Lal and Kishan @ Ram Kishan.
It was further argued that all the police officials have clearly SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 20 of 38 State Vs. Kishan @ Ram Kishan Etc. -21- proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelived and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC
625.
14. Per contra, Mr. Yashvir Singh, ld. LAC for the accused has argued that the version of the only eye witness PW4 Smt. Gayatri Devi is highly improbable and full of contradictions and improvisations. That the recovery of the alleged weapon of offence i.e. the knife is falsely planted upon the accused. That there is no mentioned of any blood stains on the death summary report or by the crime team who inspected the spot i.e. roof in question and the accused Sagar has been falsely implicated and the prosecution has failed to prove the case beyond reasonable doubt.
15. I have heard the arguments at length and perused the entire record.
FINDINGS
16. The accused Kishan @ Ram Kishan, Sagar @ Raj Kumar and Banwari Lal had been charged for the commission of offence punishable under Section 302/34 IPC. Accused Sagar @ Raj Kumar has also in addition been charged for the commission of offence under Section 25/54/59 Arms Act.
17. At the very outset, it is pertinent to mention that proceedings against accused Kishan @ Ram Kishan and Banwari Lal already stand abated as they had expired and the following findings are with respect to accused Sagar only.
18. Briefly stated, the prosecution story is that on 08.02.2017 at about 9:26 pm, on receipt of DD No.73B at PS Adarsh Nagar from BJRM Hospital, where the one person named Munna was found brought declared SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 21 of 38 State Vs. Kishan @ Ram Kishan Etc. -22- dead with the alleged history of fall from the floor and initially the FIR was registered under Section 304A IPC. However, after the postmortem was conducted and investigation made, Section 302 IPC was incorporated as the postmortem revealed that the death was caused due to hemorrhage, secondary to injury to the pulmonary artery by a sharp cutting/stabbing instrument and the injury caused (injury no.7) is sufficient to cause death in ordinary course of nature. On the basis of the statement of one eye witness Gyatari Devi, who is also the sister of the deceased, the case was made out against the accused persons namely Kishan @ Ram Kishan, Sagar @ Raj Kumar and Banwari Lal.
19. The relevant Sections are reproduced as under:
SECTION 302 IPC "Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine".
SECTION 34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
SECTION 25 ARMS ACT "....... Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine".
20. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 22 of 38 State Vs. Kishan @ Ram Kishan Etc. -23- called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
21. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL/EYE WITNESS
22. The prosecution has heavily relied upon the testimony of PW4 Smt. Gayatri Devi, who is the sister of the deceased and the only eye witness in the case produced by the prosecution.
SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 23 of 38 State Vs. Kishan @ Ram Kishan Etc. -24- She had deposed the manner in which the accused persons allegedly stabbed the deceased in furtherance of their common intention and specifically stated that accused Kishan had caught hold of her brother Munna (deceased) from behind while accused Sagar was having some sharp edged weapon in his hand and stabbed the same on the left side of the chest of Munna. After receiving the stab injury, her brother fell down on the cot lying there and thereafter, accused Banwari Lal pushed her brother down from the staircase which was built up inside their house.
She had stated that she had immediately rushed to the house of accused persons but at that time only accused Banwari Lal was present in the house while other accused persons as well as her brother was not found at the house.
23. This appears to be very improbable that the eye witness (sister of the deceased), who testified that she was watching from upstairs of her own house at the roof of the house of accused Kishan and saw the entire alleged incident and immediately rushed to the house of the accused persons but she could not find the other accused persons and her brother within few minutes when admittedly, the house of accused persons was just 20 to 25 meters away from the house of eye witness as is admitted by her in the cross examination.
Further, if her brother was rushed to the hospital it is highly improbable behaviour on the part of PW4, who is the only relative/sister of the deceased that she did not rush to the hospital. In fact, admittedly, she did not get her statement recorded before the police for the next five days and it is only on 12.02.2017 that her statement was recorded and consequentially Section 302 IPC was incorporated later.
24. It was also the version of PW4 that she made a PCR call with regard to the incidence on 08.02.2017 itself and the CD regarding the voice SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 24 of 38 State Vs. Kishan @ Ram Kishan Etc. -25- and conversation on the 100 number call is exhibited as E4/1. As is reflected from the record, on playing the said conversation it transpired that it was not PW4 but her daughter Pooja and one neighbour namely Deepak who talked on 100 number. Thus, the first information about the incident was given by daughter of PW4 Pooja and one Deepak but the said informants Pooja and Deepak had not been produced as a witness by the prosecution.
25. Be as it may, even if a timely information was given by PW4 through her daughter, there are glaring improvisations in her testimony vis a vis her original complaint exhibited as PW4/DA.
She had testified that there were 2 ladies of the house of the accused who were present at the roof at the time of alleged incident. However, there is no mention of the said ladies in the original complaint which had been registered merely under Section 304A IPC and it is admitted by the said witness in her cross-examination recorded on 10.10.2018 that she had never informed the police about the presence of the two ladies on the roof of their house. The said two ladies could have been material witnesses to the incident but the prosecution storey is completely silent on this aspect.
Further, she had testified that she saw that after the alleged stab injury her brother fell down on a cot lying there. However, this was an improvisation from her earlier statement Ex. PW4/DA where it was not so specifically recorded and she was duly confronted with her earlier statement during the course of her cross-examination. The said cot was never found or seized by the IO which could have been an important piece of evidence with respect to blood stains or finger prints, if any. This is a major lacuna in the prosecution story.
She further admitted that she has not stated to the police as to when and what time she came down and rushed to the house of accused SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 25 of 38 State Vs. Kishan @ Ram Kishan Etc. -26- persons. Admittedly she never stated to the police about the enquiry made by her from the accused Banwari Lal and that he allegedly misled her and informed that her brother would be back soon. This is again a material improvement in her version.
She further admitted that she had never stated to the police that she heard the noise munna bacho after 2-3 minutes. She further admitted that the witness did not inform to the police and their statement was not recorded for five days till 12.02.201. It is highly improbable that the eyewitness who is also closely related to the deceased being a sister kept silent for 5 days from the alleged incident and did not make any statement. Had it been the case that her statement was not being recorded by the police, then she could have appeared before some seniors officials but admittedly neither her nor her husband Mangal who had also come to know of the incident on 08.02.2017 appeared before any senior officers to agitate to inform that their statement had not been recorded.
26. Also, admittedly the police had come and made enquiries from the neighbours. But none of the neighbours also made any complaint or got their statement recorded before the police.
27. It is pertinent to mention that the incident was dated 08.02.2017 and admittedly, even the husband of eye witness was informed about the manner in which the deceased was killed and there must have been various neighbours who admittedly had cordial relations with the eye witness but no one informed or went to the police station.
28. PW4 in her cross examination has categorically admitted that her husband, who was out of station that time was also informed about the incident by her children on 08.02.2017 itself but neither his nor statement of PW4 was recorded until 12.02.2017 and they did not appear from 08.02.2017 to SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 26 of 38 State Vs. Kishan @ Ram Kishan Etc. -27- 12.02.2017 before any of the senior police officials regarding the non recording of their statements. This is highly improbable behaviour as being a sister who herself allegedly witnessed the murder of her brother, did not rush either to the hospital or to inform the police authorities for 5 days.
29. In fact PW24 SI Kanti Prasad, who had gone to the spot on receipt of DD entry no. 73B immediately after the incident for making inquiries, he himself admitted in the cross-examination that he made enqiry from the sister of the deceased who had stated initially that she does not know about the incident and she lives far off. The concerned IO also made inquiries from the public persons and the sister of the deceased ie. PW4 but no allegations of allegedly stabbing were made by her. PW24 also deposed that a quarrel took place between the father of the accused and accused Sagar and Munna merely intervened in the quarrel. He again reiterated that there were no blood stains on the spot.
30. Thus, the only eye witness not only made several material improvisations in her testimony from her earlier statement but also her conduct of not rushing to the hospital or not informing about the incident for 5 days appeared to be highly improbable and creates a grave doubt in the story of prosecution.
31. Now I proceed further to analysis the scientific evidence adduced on behalf of the prosecution.
MEDICAL EVIDENCE/SCIENTIFIC EVIDENCE
32. PW5 SI Mansoor Alam from the Crime Team deposed that It is categorically admitted that no incriminating article was seized and found from the spot on the roof. There is no mention of any blood stains being found on the spot. The alleged cot where the accused had fallen as testified by the eye SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 27 of 38 State Vs. Kishan @ Ram Kishan Etc. -28- witness, PW4 was also not found on the spot.
33. PW9 Dr. Monika Shahi, Sr. Scientific Officer, FSL prepared the report Ex.PW9/A.
34. Although she had deposed that she had testified that she observed sharp edges/cut marks over Ex.1a and 1b which are the clothes of the deceased and found them similar to the examined knife at Sl. No.2 but there is no certainty in the opinion that the said cut marks were caused by the knife in question and it cannot be said that prosecution has been successful in proving that the said same knife was used to inflict injury. No fingerprints or DNA profiling showed that knife was used by accused Sagar. The FSL report Ex.PW11/A shows that the DNA profile generated from the source exhibit I.e. blood gauze of the deceased is similar with the DNA profile generated from the clothes of the deceased and the seized knife but this opinion cannot certainly prove the commission of the act by the accused Sagar and that too with the knife which had been seized and for this corroboration is necessary as an expert opinion cannot outweigh the ocular or other documentary evidence as per Section of 45 of the Indian Evidence Act.
35. Moreso, when PW11 Seema Nain, Assistant Director Biology FSL, admitted that the latest PCR Amplification Kit of 24 Markers was not used during the course of inquiry and thus, the possibility of the margin of error cannot be ruled out.
36. In the case of Navin Kumar Vs. NCT of Delhi decided on 03.07.2018, the Hon'ble High Court of Delhi, reiterated that the mere presence of the DNA of deceased on the back seat of the car cannot be clinching evidence pointing towards the involvement of the accused since no finger prints were lifted from the car to show their presence. Even in the present case, no finger prints of the accused Sagar have been lifted from the SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 28 of 38 State Vs. Kishan @ Ram Kishan Etc. -29- spot or the alleged weapon of offence.
37. In the case of Shivaji Genu Vs. State of Maharastra decided on 20.09.1972, and in Piara Singh Vs. State of Punjab decided on 04.10.1997 it was again reiterated that "the evidence of a medical man or an expert is merely an opinion which lends corroboration to the direct evidence in the case. Where there is glaring inconsistency between direct evidence and the medical evidence in respect of the entire prosecution story i.e. undoubtedly manifest defect in the prosecution case".
38. In the present case the highly improbable version of the only eyewitness and the scientific evidence are highly inconsistent.
39. Further, PW20 Dr. Neeraj Chaudhary, deposed that he has been deputed by MS to depose on behalf of Dr. Vaibhav and Dr. Anuj Kumar of BJRM Hospital as Dr. Vaibhav and Dr. Anuj Kumar have left the services of the hospital and he can identify the handwriting and signatures of Dr. Vaibhav and Dr. Anuj Kumar, as he has seen them writing and signing during official work.
40. He further deposed that on 08.02.2017, at 9:15 pm, Munna, 20 years male was brought by Kishan with alleged history of fallen from floor as told by brought by. Patient declared brought dead on 08.02.2017, at 2:20 pm. The dead body was handed over to ASI Kanti Prasad. That the MLC No. 129141 Ex. PW20/A was prepared by Dr. Vaibhav, under the supervision and control of Dr. Anuj Kumar.
41. I have perused the MLC bearing no. 129141 Ex.PW20/A dated 08.02.2017 timed 21:15 PM which is completely silent about the nature of injuries, if any and specifically the alleged stabbed wound on the body of the deceased. The MLC was prepared within approximately half and hour of the alleged incident and it is highly surprising that nothing is reflected to show that SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 29 of 38 State Vs. Kishan @ Ram Kishan Etc. -30- the deceased had suffered any stab wound. This makes the story of the prosecution highly suspicious. Further, the concerned doctor who had prepared the MLC Dr. Vaibhav and under the supervision of one Dr. Anuj Kumar have not been examined by the prosecution despite due opportunity. PW20 Neeraj Chaudhary neither examined the injured himself nor the MLC was prepared in supervision.
42. PW25 Dr. Anshul Saxena conducted the postmortem of the dead body and the detailed postmortem on 10.02.2017 i.e. after 2 days of the alleged incident and the report is Ex.PW25/A and he also prepared the rough sketch of the knife Ex.PW25/B. It is highly surprising that the MLC Ex. PW20/A and death summary report Ex. PW24/D which are prepared on the same date as that of the incident are contradictory to the PM report in a way that they are completely silent on the aspect of any alleged stab injury being inflicted upon the deceased or any blood stained clothes being recovered.
43. Further, I have carefully perused the death summary report Ex. PW24/D relied by the prosecution itself which in column no. 12 describe the manner or by what weapon injuries had been inflicted and shows that it was due to fall from the staircase (girne se chot lagne ke nishan). In column no.14 which describe the apparent cause of death, the same has been shown as death due to fall (gir jane ke karan). The brief history of case as reflected in column no.18 also shows that death was apparently caused due to fall from the staircase. In column no,16 which describes the clothes, there is no mention of any cut marks on the cloth of deceased or any blood stains. This document which is exhibited as Ex.PW24/D is relied by the prosecution itself and is completely silent upon any stab injury on the body of the deceased as was later incorporated in the prosecution story. In fact PW19 Ct. Vikas who was posted outside the mortuary of BJRM Hospital also stated that he has not seen any SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 30 of 38 State Vs. Kishan @ Ram Kishan Etc. -31- blood on the white sheet with which the body of the deceased was covered nor could he see any injury as only the face was visible to him. If going by the version of the prosecution, there were stab injuries and blood was oozing out, it is highly improbable that it would not have been visible.
44. In fact PW24 himself admitted in the cross-examination that he made enqiry from the sister of the deceased who had stated initially that she does not know about the incident and she lived far off. He further admitted that there were no blood stains lying at the spot which further creates a grave doubt in the prosecution story and thus, the prosecution has not been able to prove the co-relation between the cause of death as mentioned in the postmortem report with the ocular testimony of other material witnesses who had inspected the spot and the dead body at the first instance during the course of investigation.
45. The possibility of injured Munna sustaining injury from any procuring sharp object which may be at the staircase during his fall cannot be ruled out. Be as it may, from the medical and scientific evidence prosecution has not been able to prove beyond reasonable doubt that the deceased died due to a stab injury and moreover that the stab injury was inflicted by the accused Sagar.
46. Now, I proceed further to analysis the recovery of the material piece of evidence i.e. the alleged weapon of offence.
RECOVERY OF THE WEAPON
47. It was argued by ld. Counsel for the accused that the recovery of the alleged weapon of offence i.e. knife has been planted upon the accused to suits the case of the prosecution.
48. Prosecution produced PW5 SI Mansoor Alam, who was posted at SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 31 of 38 State Vs. Kishan @ Ram Kishan Etc. -32- Mobile Crime Team on 08.02.2017, on receipt of a call along with his staff members including Ct. Sandeep Photographer and a finger print proficient immediately reached the spot where they met the IO ASI Kanti Prasad. It is an admitted fact that the said PW5 had inspected the roof of the said premises and despite sincere efforts no incriminating article was seized or rather found at the spot on the roof.
49. Also the main IO, PW27 Inspector Anil Malik admitted in his cross examination that the crime team staff inspected the scene of crime in order to find if any blood was there but no blood was found. Admittedly, the crime team did not recover any article from the scene of crime despite minutely and with due diligence they conducted the inspection of the spot.
50. It is pertinent to mention that PW15 Ct. Ankit who is the main witness of recovery had deposed that accused Sagar pointed out towards the roof of the washroom of the house of deceased Munna and got recovered one knife which was stated to be used by him in the commission of the offence. The IO prepared the sketch of the said knife Ex.PW15/J and also mentioned its measurement on the sketch.
51. In his cross-examination there were public persons who were available near the place of recovery but the IO did not request any public person to join the investigation before effecting the recovery of the said knife. This creates a doubt in the recovery of the alleged knife stated to be recovered at the disclosure of the accused from the house of the deceased Munna.
52. Interestingly, IO PW27 Inspector Anil Malik deposed in his examination in chief dated 05.01.2021 that accused Sagar had pointed out towards the roof of the washroom of the house of the deceased Munna and got recovered one knife but in his cross examination dated 09.03.2022, the IO stated that knife was recovered at the house of accused and not the deceased.
SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 32 of 38 State Vs. Kishan @ Ram Kishan Etc. -33- He further emphasised that this statement that knife was recovered at the house of accused is correct. At this stage, it is pertinent to mention that vide seizure memo Ex.PW15/, it transpires that accused Sagar disclosed that he had hidden a buttondar knife on the washroom located on the terrace of his house which was 13 cms in length on the sharp edges and 15.2 cms from the portion of holding the knife. But, the seizure memo is completely silent on the width of knife and any blood stains being found on any portion of the said knife. The said seizure memo bears the signature of one Ct. Ankit, who is PW15, who completely deposed opposite that accused Sagar pointed out towards the roof of the washroom of the house of deceased Munna whereas the memo reflects that seizure was made from the house of the accused. This completely uproots the prosecution story when the recovery witnesses have given such a contradictory account and moreso no independent witness of recovery was examined.
53. Further, it is admitted by the IO that the knife recovered was not wrapped in any material. It is further admitted that the event of recovery of knife was not videographed. The sketch prepared by the IO does not reflect that on which part of the knife the blood was found. Even, the seal was of UR (of SI Umesh Rana) and not of the IO. SI Umesh Rana has never joined the investigation admittedly. The sketch of the knife Ex.PW15/J shows one buttondar knife which is mechanically operated. The blade measuring 13 cm and the body about 15.2 cm. The corresponding seizure memo Ex.PW15/K. But width of the knife is not mentioned from which the depth of the injury could be ascertained. There is no independent witness which has been cited by the prosecution at the time of recovery of alleged weapon of offence. It is pertinent to mention that the measurement does not correspond to the sketch prepared by the Sr. Forensic Expert at the time of analysis as is reflected from SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 33 of 38 State Vs. Kishan @ Ram Kishan Etc. -34- Ex.PW25/B which shows the length of the knife as 12.8 cm.
54. Also, no blood stains on the clothes of the deceased was found as per the death summary report prepared at the initial instance Ex.PW24/D and the alleged reason for death is shown fall from staircase and not stab injury.
55. In the landmark judgment of State (NCT of Delhi) Vs. Sunil 2001 SCC, (Cri) 248, the Hon'ble Supreme Court held that "when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the IO is necessarily attested by the independent witnesses but if no witness is present, it is difficult to lay down as a proposition that the recovery must be tainted or that or unreliable. But in such a situation, the court has to consider the report of the IO on its own merits".
In Mani Vs. State of Tamilnadu decided on 08.01.2008, the Hon'ble Supreme Court, it has been held that:
"Discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon discovery".
In the case of Naveen kumar Verma Vs. State (Govt. of NCT of Delhi) decided by Hon'ble High Court of Delhi on 03.07.2013 relying on the landmark judgment of Mohd. Jabbar Vs. State decision 21.05.2010 Crl. A. 1022/18, it has been reiterated that:
"The courts have to be cautioned and to vigilant against the non practice of the police to plaint ordinary objects on the accused persons to prove access by the accused to the place where the crime was allegedly committed.
In Prabhu Vs. State AIR 1963, Supreme Court 1113, recovery of a blood stained shirt and a dhoti as also on an axe on which human blood SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 34 of 38 State Vs. Kishan @ Ram Kishan Etc. -35- was detected was held to be a weak evidence as was also held in the case of Narsinghbhai Prajapati Etc. Vs. Chatrasingh & Ors. AIR 1977 Supreme Court 1753, where recovery of a blood stained shirt and a dhoti and also a dharia (weapon of offence) were held to be a weak evidence.
56. In the present case, there is material contradiction in the testimony of the recovery witness and the IO regarding the place of recovery of alleged weapon of offence which creates a grave doubt. The recovery has been effected after two days of the alleged crime and admittedly, the knife in question was not wrapped in any material and the possibility of its changing hands cannot be ruled out. There is no mention of any blood stains on the knife or the two sketches prepared or the seizure memo. Although, the FSL result Ex.PW11/A although reflects the DNA analysis shows that the blood on the knife i.e. Ex.P2 and the blood gauze of the deceased Ex.P3 are similar but in the wake of the other oral and documentary evidence which itself creates doubt regarding the place and manner of recovery, the expert opinion cannot be the sole basis of concluding that the knife Ex.P2 was the weapon of offence and more so was used by accused Sagar in the light of Section 45 of the Evidence Act and as such in the wake of the aforesaid case laws the recovery of the knife is a very weak evidence. Moreso, when no blood stains were reported either on the spot by the Crime Team or even on the clothes of the deceased in the death summary report as is already discussed above, grave doubt is raised in the prosecution story
57. In the case of Surjit Singh Vs. State of Punjab AIR 1994 Supreme Court 110, the watch of the deceased and a dagger stained with the blood of the same group as that of the deceased was held to be weal evidence.
58. The reason for death as per death summary report was due to a fall SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 35 of 38 State Vs. Kishan @ Ram Kishan Etc. -36- from the first floor and the possibility of being hurt by any sharp protruding object on the staircase cannot be over ruled.
59. Admittedly, PW24 ASI Kanti Prasad deposed that on receipt of DD No.73B, the deceased had fallen down from the roof, the prosecution story is completely silent on any stab wound on the body of the deceased. It is pertinent to mention that he is the main person who first reached the spot to make inquiry from public persons and record their statements. It is categorically deposed by the said witness that the public persons told that there was a quarrel between Banwari Lal, father of accused Kishan and Sagar and Munna had intervened in the said quarrel and thereafter, fell down from the roof. He further deposed that when he inquired about the parents and relatives of the deceased, he informed that his parents live in the village but the sister lives nearby i.e. Gayatri Devi, PW4. It is categorically deposed by said PW24 that on his inquiry from the sister of the deceased, she told him that she did not know about the incident since she live far off. This is a material contradiction in the version of the prosecution witnesses PW24 and the sister of the deceased PW4 which further raises grave doubt.
60. He further stated that no blood stains were lying at the spot.
61. Neither any public witness had been joined at the time of alleged recovery of weapon of offence and nor any neighbour was examined by the prosecution. There must have been number of neighbours in the locality when the alleged incident happened and also at the time of procedure of alleged recovery of weapon of offence but there appears to be no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 36 of 38 State Vs. Kishan @ Ram Kishan Etc. -37- Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 37 of 38 State Vs. Kishan @ Ram Kishan Etc. -38-
62. The remaining witnesses were formal police witnesses who merely deposed regarding the manner of investigation.
CONCLUSION
63. Thus, in view of the aforesaid findings, since there are material contradictions and improvisations in the testimony of the only eyewitness PW4 and her version being untrustworthy and conduct about the incident being highly improbable, absence of any other public witness and the recovery of the alleged weapon of offence not only being weak piece of evidence but highly doubtful and apparently made out to fill up lacunae in the prosecution case as discussed at length above, there is no hesitation in holding that the prosecution has failed to prove its case beyond reasonable doubts and accordingly the accused Sagar stands acquitted of the charges levelled against him.
64. File be consigned to record room after due compliance.
Dictated and announced in the open (Shefali Sharma) Court on 27.07.2022 Addl. Session Judge-02 (running in 38 pages) (North), Rohini Courts/Delhi SC No. 269/17, FIR No. 63/17, PS Adarsh Nagar Page No. 38 of 38 State Vs. Kishan @ Ram Kishan Etc.