Delhi District Court
Innocence ( Relied Upon Padala Veera ... vs State Of A.P on 2 September, 2011
1
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH)
DELHI
SC NO. 79/10
STATE
versus
Pradeep Paswan s/o Ramvilas Paswan
R/o 364/2, Gali no. 8, Nehru Nagar,
Anand Parbat, Delhi.
Permanent Address : Ward No. 12, PS Joy Nagar,
Distt. Madhubani, Bihar.
FIR No. : 53/09
Offence U/S : 302 IPC
Police Station : Sarai Rohilla
DATE OF INSTITUTION: 3.7.09
JUDGMENT RESERVED ON: 17.8.11.
DATE OF JUDGMENT: 23.8.11
JUDGMENT
1. Accused Pradeep Paswan s/o Ramvilas Paswan has been prosecuted for the offence of murder as punishable u/s 302 IPC on the allegations that he killed his friend Ashok s/o Jageshwar with sharp edged weapon with intention to cause his death.
S.C.No. 79/10 Page 1 of 48 pages 2
2. The prosecution case is that in the night of 2/3309, on receipt of DD No. 3 B regarding stabbing incident at Harijan Basti, Gali no. 10, police reached the spot and found that PCR Van had already removed injured Ashok to the hospital. One witness Jairam s/o Ram Lal met at the spot and lodged the report to the effect that he heard the screams of a person at 12 mid night and found on inquiry that he was Ashok resident of Nehru Nagar. He told that his friend Pradeep stabbed him near railway line. The injured was having deep injury on his chest and was bleeding. One boy named Vicky called the police by dialing 100 and PCR came and removed injured to the hospital. On the basis of this report, FIR was registered u/s 307 IPC. The investigation was conducted by the police at the spot and blood, blood stained earth and earth control were lifted from the spot. The statements of witnesses were recorded. The injured succumbed to the injuries in the hospital and after identification of the dead body postmortem was S.C.No. 79/10 Page 2 of 48 pages 3 conducted. The blood stained clothes and blood samples were seized. During further investigation, it was learnt that accused Pradeep and deceased Ashok were residing together in the same room on rent. On 06.03.2009, the photographs of accused and deceased were seized from the said room and statement of landlord was recorded. During further investigation another witness Pintu Tiwari got recorded his statement to the effect that in the night of 2.3.09, accused and deceased had come together alongwith one Chotu and had liquor near Liberty cinema. He also stated that there were money transactions between the accused and the deceased. During further investigation, the statements of other relevant witnesses were recorded and on 16.3.09 the accused was arrested from the house of his sister and on interrogation, he made disclosure statement of having committed the offence. He also got recovered blood stained clothes worn by him at the time of incident from a room adjoining his rental room and also got recovered the weapon of offence i.e. knife from near S.C.No. 79/10 Page 3 of 48 pages 4 the railway track. The exhibits were sent for scientific analysis to FSL and after completion of necessary investigation, the chargesheet was filed against the accused u/s 302 IPC.
3. On 6.7.09 as amended on 18.10.09, accused Pradeep was charged for the offence of committing murder of his friend Ashok punishable u/s 302 IPC to which accused pleaded not guilty and claimed trial.
4. Prosecution examined 25 witnesses in all to bring home the guilt of the accused. The substance of the prosecution evidence is as follows:
5. PW1 Pintu Tiwari identified the accused in the court and stated that he is known to the accused being resident of the same village and also being school mate. He stated that accused migrated from Bihar to Delhi in the year 1999. Accused was plying rickshaw of Praveen and also used to work at marriage functions. The accused was residing with deceased Ashok after the wife of deceased left for her parental house in the year 2008. The accused and deceased S.C.No. 79/10 Page 4 of 48 pages 5 were friends and they both used to ply rickshaw and were residing together in a room at Nehru Nagar. PW1 further stated that there were money transactions between the accused and the deceased and he had filled up money order form for sending Rs 2000/ to the wife of the deceased at their request. About the day of incident i.e. 2.3.09, PW1 stated that at about 8 p.m. accused alongwith deceased Ashok and one Chotu came to him at Dhaba, near Liberty cinema and they purchased chicken for Rs 20/ and then went to nearby vacant place. They all consumed liquor and deceased Ashok had consumed more liquor and was fully intoxicated. At about 9 pm they went away towards Harijan Basti, Railway line. On 4.3.09, in the morning, police came to him and interrogated him about Pradeep Paswan at which he disclosed about availability of accused at Nehru Nagar. He also stated to the police about the fact of accused and deceased being together on the previous night. During crossexamination, he stated that he is rickshaw puller by profession and is not working at shop S.C.No. 79/10 Page 5 of 48 pages 6 no. 1. He had stated to the police about the accused and deceased coming to his dhaba and purchasing chicken. He was working in the shop at the said time and was also working as rickshaw puller. He started working in the shop from 1.3.09 and dhaba belonged to the owner Ram Jhabbo. The dhaba opened at 9.30 am and closed at about 11.30 p.m. The dhaba is visited by many customers in the evening and other boys were also working there. He denied the suggestion that he was not working in the said dhaba. He further denied the suggestion that on 2.3.09, accused did not visit the said dhaba or that deceased Ashok and Chotu had not visited the said dhaba. He denied the suggestion to be deposing falsely.
6. PW2 Kaleem s/o Mohd Gulam stated that accused Pradeep was plying his rickshaw and was residing at house no. 364/2, gali no. 8, Nehru Nagar, Anand Parbat, Delhi alongwith his friends Ashok Sahu and Chotu. He further stated that accused used to work in marriage functions also. PW2 had also provided rickshaw on hire basis to deceased S.C.No. 79/10 Page 6 of 48 pages 7 Ashok at the request of accused. On 2.3.09, at about 7/8 p.m deceased deposited rickshaw in garage and had gone from there.
7. PW3 Retd. SI Ramkaran was posted with PCR van, he received the information about one person lying injured in gali no.10, Harijan Basti in the night of 2.3.09. He reached the spot alongwith his staff and removed the injured to the Hindu Rao hospital. The injured was unconscious and was not able to speak.
8. PW4 Dr. C.B. Dabas conducted postmortem examination on 6.3.2009 on the dead body of deceased and proved his detailed report EXPW4/A. In his opinion, the death was due to hemorrhage and shock consequent to injuries caused by sharp edged weapon and injuries were sufficient to cause death in ordinary course of nature. The time since death was approximate three days and nine hours. On 11.5.09, he also examined the weapon of offence (knife) produced before him for opinion and on examination, he found that injuries on the person of the S.C.No. 79/10 Page 7 of 48 pages 8 deceased could have been caused by the said weapon. He prepared sketch of weapon EXPW4/B and gave his opinion vide EXPW4/C.
9. PW5 Jairam, is carpenter by profession and has been working at 5/2, Gali no. 10, Harijan Basti, New Rohtak Road, Delhi. He deposed that during the end of winter season, at about 12 mid night, he heard the screams of a person crying for help and on opening the shutter of the shop, he found a person lying on road in injured condition. The injured was not saying anything. His neighbour Vicky came there and informed PCR. The statement of PW5 was recorded by police officials of PS Sarai Rohilla vide EXPW5/A and police also lifted blood, earth control, blood stained earth and he signed the relevant memos EXPW5/B,C&D. He does not know the injured as well as the accused. The witness was cross examined by Ld APP during which he stated that his statement EXPW5/A was not read over to him by the police. He denied the suggestion that injured told him that his S.C.No. 79/10 Page 8 of 48 pages 9 name was Ashok and his friend Pradeep had given knife blow to him. He also denied the suggestion that PCR van came to the spot and took the injured to the hospital, although admitted that police inspected the spot and prepared site plan EXPW5/E. He denied that he told the police about address of the injured. He further denied having stated to the police that accused quarreled with the deceased and accused Pradeep ran away from the spot after giving knife blows. The supplementary statement recorded u/s 161 CrPC read over to him mark PW5/G but denied by the witness. He denied to be deposing falsely.
10. PW6 Vicky Ratawal, also the resident of Harijan Basti, New Rohtak Road, Delhi, stated that on the intervening night of 2/3309 at 12 mid night, on hearing screams, he got up, came out of his house and found public persons gathered there. One person was lying injured on the road and was bleeding. PW6 dialled 100 and PCR van came and took the injured to hospital. He inquired from the injured and he told that he was stabbed by one Pradeep by S.C.No. 79/10 Page 9 of 48 pages 10 knife. The injured had also given his name and address of Nehru Nagar but PW6 could not recall the name of the deceased. He does not know either the deceased or the accused. The statement of PW6 was recorded by the police. He admitted the suggestion that deceased might have told his name as Ashok. During crossexamination on behalf of accused, PW6 stated that persons collected outside his house were of his locality including one Jairam. He denied the suggestion that deceased was not in a condition to speak. He specifically denied the suggestion that deceased did not tell him that he was stabbed by Pradeep. He denied to be deposing falsely.
11. PW7 Suraj Singh is the landlord of house no. 364/2, gali no 8, Nehru Nagar, Anand Parbat, Delhi. He deposed that he has given first floor of the house on rent to accused Pradeep where he was living with his friend Ashok (deceased) and one Chotu. He had not seen anyone of them since 2.3.09 onwards. PW7 further deposed that on 3.3.09 at about 5 am police came to his house and inquired about S.C.No. 79/10 Page 10 of 48 pages 11 the accused. Police again came on 6.3.09 and searched the room of the accused. However, he has no knowledge that photographs were recovered vide seizure memo EXPW7/A. The photographs EXPW7/B1 to B3 were shown to the witness wherein he identified the deceased as well as the accused. On 16.3.09, police brought the accused and had taken him to his room and while the police was taking search, PW7 left in between. He could not tell whether police had recovered anything from that room. He was called to PS where his signatures were taken on memos EXPW7/C&D. PW7 was crossexamined on behalf of the State during which he denied that photographs were recovered by the police in his presence or that pointing out memo EXPW7/D was prepared at the spot. He further denied the suggestion that accused got recovered polythene containing blood stained shirt and pant or that same were converted into sealed parcel and seized vide memo EXPW7/C. He denied the suggestion to be deposing falsely having been won over by the accused.
S.C.No. 79/10 Page 11 of 48 pages 12
12. PW8 Dr. Madhup CMO with Hindu Rao hospital examined Ashok Kumar ( deceased) vide MLC EXPW8/A. The details of the injuries were noted in the MLC. The deceased was admitted as unknown but later on he disclosed his name as Ashok and his father's name Jageshwar Saha. According to PW8 patient became partially conscious during examination and told his name and father's name.
13. PW9 Dukhan Sahu is the relative of deceased Ashok.
He identified the dead body of Ashok on 6.3.09 at mortuary vide EXPW9/A. His statement was recorded by the police vide EXPW9/B. He also identified the photographs shown by the police EXPW7/B1 to B3. PW9 was crossexamined by Ld APP during which he denied having stated to the police that accused and deceased were having enmity as accused had relations with the wife of deceased. He also denied having stated to the police that on inquiry from public persons he came to know that deceased had taken loan of Rs 8000/ to 9000/ from accused and since he did S.C.No. 79/10 Page 12 of 48 pages 13 not return the same, knife blows were given to him by the accused. PW9 does not know accused Pradeep. He denied the suggestion to be deposing falsely having been won over by the accused.
14. PW10 HC Ratan Singh, was working as MHC(M) with PS Sarai Rohilla and deposed about deposition of case property/exhibits of this case on 3.3.09 and 16.3.09 and proved the relevant entries in register no. 19 vide EXPW10/A. On 15.5.09, case property duly sealed was sent to FSL through Ct. Kedarnath vide RC EXPW10/B. He stated that case property remained intact in his custody.
15. PW11 HC Sukhbir Singh posted as Duty officer with PS Sarai Rohilla, received rukka at 2.25 am and registered the FIR u/s 307 IPC vide EXPW11/A. He also recorded DD no. 5A regarding death of the deceased vide EXPW11/C.
16. PW12 SI Ramnath received information about the incident and reached the spot where he found ASI Ramphal already present. The crowd had also gathered at the spot. Injured had already been removed to the hospital S.C.No. 79/10 Page 13 of 48 pages 14 by PCR. SHO with staff also reached there. PW12 recorded the statement of witness Jairam EXPW5/A and then went to the hospital and collected MLC of Ashok who was declared unfit for statement. He received exhibits from the hospital vide EXPW12/A and prepared tehrir EXPW12/B and sent Ct. Sanjeev to PS for registration of FIR. Thereafter he came back to the spot and lifted blood sample, earth control, blood stains from the spot vide seizure memos EXPW5/B,C&D. The Crime Team also reached the spot and inspected and photographed the same. The site plan was prepared at the instance of witness Jairam vide EXPW5/E. On receipt of information at about 5.20 am about death of the injured, further investigation was taken over by Inspector Sunderlal. PW12 again joined the investigation on 6.3.09 with IO and reached the rental accommodation of accused i.e. 364/2, gali no. 8, Nehru Nagar, Anand Parbat, Delhi and recovered photographs EXPW7/B1 to B
3. On 16.3.09, again he joined the investigation when accused was apprehended on the basis of secret S.C.No. 79/10 Page 14 of 48 pages 15 information from Greater Kailash vide arrest memo EXPW12/C and personal search memo EXPW12/D. The accused made disclosure statement EXPW12/E and got recovered the clothes worn by him at the time of incident from his rented house and same were seized vide memo EXPW7/C. On 18.3.09, while on police remand, accused led the police team to railway track and got recovered knife ( weapon of offence). The sketch of the same was prepared vide EXPW12/F and same was sealed in pulanda vide EXPW12/G. The draughtsman visited the spot on 28.4.09 and took measurement and took rough notes. During crossexamination, he deposed that accused was arrested from the house of his sister. There were residential houses on the way while going to the place of recovery of knife. He denied the suggestion that statement of Jairam was fabricated with due deliberations and consultations. He denied the suggestion that no disclosure statement was made by the accused or that no recovery of knife and clothes were effected at the instance of the accused. He S.C.No. 79/10 Page 15 of 48 pages 16 further denied the suggestions that he did not fairly investigate the case and created false evidence against the accused. He also denied that witness Vicky is a planted witness.
17. PW13 H.C Sunderlal took photographs of the place of occurrence vide EXPW13/A1 to A8.
18. PW14 SI Manohar Lal prepared scaled site plan vide EXPW14/A of the place of occurrence.
19. PW15 Ct Kulavtar recorded DD no. 3 B with respect to the incident in question vide EXPW15/A.
20. PW16 Inspector Amar Singh was posted as incharge mobile crime team and visited and inspected the spot on 3.3.09. He proved his report EXPW16/A.
21. PW17 Chandershekhar is the resident of Faridabad and is the relative of the deceased. He stated that deceased had shown him the photographs of accused Pradeep kept in his wallet. However, he has no knowledge about the nature of the relationship between the accused and the deceased. He identified the dead body of deceased. He was cross S.C.No. 79/10 Page 16 of 48 pages 17 examined by Ld APP during which he admitted that he has given statement to the police EXPW17/A but denied the specific contents of the same.
22. PW18 HC Krishan Kumar joined the investigation of the present case and deposed about arrest proceedings of accused, his disclosure statement, pointing out memo and the recovery of blood stained clothes. During cross examination he denied the suggestion that no investigation was joined by him or that accused has been falsely arrested in this case.
23. PW19 W/Ct. Sangeeta posted with PHQ filled up the form about the information of the incident.
24. PW20 Ct. Gajender Singh joined the investigation of the present case and deposed about recovery of knife at the instance of the accused vide EXPW12/G. During cross examination, he denied that recovery proceedings were done while sitting at the same place. He further denied that no recovery was effected from the accused or that he is deposing falsely.
S.C.No. 79/10 Page 17 of 48 pages 18
25. PW21 Inspector Rajpal Singh took over the investigation of the present case on 28.4.09. He stated that he got the scaled site plan prepared on 28.4.09, collected PCR form EXPW21/A on 4.5.09 and sent the weapon of offence for opinion of the doctor on 11.5.09 vide EXPW4/C. On 15.5.09 he sent the exhibits to FSL and collected the FSL result vide EXPW21/BC&E. During crossexamination, he denied that he fabricated the statements of witnesses and evidence against the accused.
26. PW22 Ct. Sanjeev Kumar also joined the investigation of present case and got the case FIR registered on the basis of rukka. During crossexamination he stated that he had carried rukka on motorcycle but does not remember the time when the same was prepared and when he reached with the same at PS. He came back to the hospital after the registration of the FIR. He denied the suggestion that no statement was recorded in his presence.
27. PW23 Dr. Omparkash proved the death summary EXPW23/A of the deceased prepared by Dr Sandeep S.C.No. 79/10 Page 18 of 48 pages 19 Aggarwal by identifying his handwriting and signatures.
28. PW24 HC Kedar took the exhibits of this case to FSL Rohini on 15.5.09 and got the same deposited there. He stated that case property remained intact in his custody.
29. PW25 Inspector Sunder Lal has been the IO of the case.
He has given the details of investigation conducted and documents prepared by him and also proved, inquest proceedings EXPW25/A, brief facts EXPW25/B, postmortem application EXPW25/C besides proving other memos prepared during the investigation. During cross examination, he denied that accused has been falsely implicated or that no recovery of blood stained clothes or knife was effected. He denied that he has not fairly investigated the case.
30. Thereafter prosecution evidence was closed.
31. Statement of accused was recorded u/s 313 CrPC wherein entire incriminating evidence has been read over and explained to the accused to which accused pleaded innocence. According to the accused, deceased Ashok was S.C.No. 79/10 Page 19 of 48 pages 20 his friend and he remained with him at Nehru Nagar in the year 2005 for about one month but thereafter Ashok shifted separately with his wife. He denied having visited dhaba of Pintu Tiwari on 2.3.09, although admitted that Pintu Tiwari is known to him being of his village and school mate. Accused pleaded having no knowledge about the incident and stated that he has been apprehended on the basis of the photographs. He was lifted from the house of his sister on 16.3.09 and has been falsely implicated. The accused preferred not to lead evidence in defence.
32. I have heard Ld APP for the State, Ld amicuscuriae Ms Sadhna Bhatia and given due consideration to the facts and circumstances of the case, evidence and the record.
33. Ld APP argued that case of the prosecution is based on circumstantial evidence and the entire chain of circumstances is complete and proved beyond reasonable doubt and clearly points out towards the guilt of accused Pradeep Paswan. PW1 Pintu Tiwari is the witness of last seen circumstance and PW6 Vicky is the witness in whose S.C.No. 79/10 Page 20 of 48 pages 21 presence deceased made dying declaration as to the cause of his death. The recovery of blood stained clothes and weapon of offence have also been effected at the instance of accused and further the medical and scientific evidence have corroborated the version of the prosecution thereby completing the chain of circumstantial evidence. The conduct of the accused also connects him to the commission of the offence as he was not found at his rental accommodation after the incident and only after 12 days of the incident, he was apprehended on the basis of secret information from the house of his sister. There is no explanation as to why the accused absconded after the incident. It is further stressed by Ld APP that investigation and corresponding documents have been proved beyond reasonable doubt with the consistent testimony of prosecution witnesses and therefore accused should be convicted for the offence of murder punishable u/s 302 IPC.
34. On the other hand, Ld amicuscuriae Ms Sadhna Bhatia arguing for the accused raised following points: S.C.No. 79/10 Page 21 of 48 pages 22 The author of the FIR PW5 Jairam has failed to support prosecution case and denied that deceased named the accused for killing him. The landlord PW7 Suraj Singh has also failed to support the prosecution version about the recovery of blood stained clothes at the instance of the accused. The last seen witness introduced by the prosecution namely PW1 Pintu Tiwari deposed that accused and deceased left his dhaba at about 9 p.m. and went to the nearby vacant place. After about three hours at 12 mid night, the deceased was found lying injured in the Harijan Basti and in the circumstances, the duration of three hours is significant and interception by any other person during this period cannot be ruled out. Ld amicuscuriae further argued that motive of commission of offence has not been proved by the prosecution and therefore the chain of circumstances has not been completely established. Dying declaration alleged by the prosecution cannot be believed as the same has been too brief and it has been clearly stated by PW5 Jairam that S.C.No. 79/10 Page 22 of 48 pages 23 injured was not in a position to speak. Even the PCR official had stated that injured was unconscious. For the aforesaid reasons, the prosecution has failed to prove the case against the accused and therefore accused must be acquitted in the present case.
35. The accused Pradeep Paswan is charged for the offence of murder punishable u/s 302 IPC and the case of the prosecution is based on circumstantial evidence. It is well settled legal position that when a case is based upon circumstantial evidence, such evidence must satisfy following tests :
i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
iii) The circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was S.C.No. 79/10 Page 23 of 48 pages 24 committed by the accused and none else; and
iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence ( relied upon Padala Veera Reddy Vs State of A.P and others, AIR 1990, Supreme Court 79)
36. In other words, there must be a chain of evidence so far complete and not to leave any reasonable ground for a conclusion consistent with innocence of accused. In the background of aforesaid legal position, it has to be seen whether the circumstances established by the evidence form complete chain pointing out towards guilt of accused Pradeep Paswan in the present case .
37. Prosecution has placed reliance on the following circumstances to bring home the guilt of the accused:
i) The deceased Ashok was last seen with the accused near Harijan Basti, railway line at about 9 p.m. S.C.No. 79/10 Page 24 of 48 pages 25
ii) Statement (dying declaration) made by deceased in the presence of independent public witnesses at about 12 mid night while lying with multiple injuries.
iii) Conduct of the accused in not returning to his rental accommodation after the incident.
iv) On the basis of disclosure made by the accused, the blood stained clothes containing human blood were recovered at his instance.
v) Recovery of weapon of offence i.e. knife at the instance of the accused.
38. Taking the first circumstance of last seen, the witness who had seen the deceased lastly in the company of accused is PW1 Pintu Tiwari. PW1 is the friend of accused, both being the residents of same village and also studied in the same school. This fact is also admitted by accused in his statement u/s 313 CrPC. According to the testimony of this witness, the deceased and accused were residing together in one room and they both were friends and used to ply rickshaw. On 2.3.09, at about 8 p.m, accused and S.C.No. 79/10 Page 25 of 48 pages 26 deceased alongwith one third person Chhotu came to the dhaba near Liberty cinema and purchased chicken and then went to nearby vacant place and there they all consumed liquor. They went away towards Harijan Basti, railway line at about 9 p.m. The version put forth by PW1 appears to be natural and probable and there is no reason to disbelieve the claim of PW1 that he had seen the accused and deceased going together towards railway line at about 9 p.m. Thereafter the deceased was found at 12 mid night lying with multiple stab injuries in the area of Harijan Basti itself. It has been argued by Ld amicuscuriae that there is gap of about three hours between the point of time when the accused and deceased were last seen together and the time when the deceased was found lying with injuries and therefore the possibility of any third person other than the accused being the author of the crime cannot be ruled out.
39. It is no doubt true that last seen theory comes into play when the time gap between the accused and deceased last seen together and when the deceased is found dead is so S.C.No. 79/10 Page 26 of 48 pages 27 small that possibility of any person other than the accused being the author of the crime becomes impossible. I have analysed the facts as surfaced with the testimony of prosecution witnesses in the present case. The probability of accused being present with the deceased is strong and interception by any other person during this period of three hours is ruled out by the nature of the circumstances. It is clearly stated by PW1, the witness of last seen that deceased had consumed more liquor and he was fully intoxicated and accused was with him and they went away towards Harijan Basti, railway line at about 9 p.m. It is also true that one third person Chhotu was also with them at that time. It is further clear from the statement of prosecution witnesses and also the site plan where blood trail is shown that incident of stabbing had taken place on the railway line itself and deceased after having received serious injuries walked up to gali no. 10, Harijan Basti, screaming for help. The public persons came to the injured Ashok on hearing his screams and on inquiry he named S.C.No. 79/10 Page 27 of 48 pages 28 Pradeep Paswan responsible for giving him stab injuries. In these circumstances, the possibility of any third person intervening is totally ruled out. The circumstantial evidence consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain from which the existence of the principal fact can be legally inferred or presumed. On proper and careful evaluation of testimony of prosecution witnesses particularly of PW1 and PW6, I am of the opinion that principal circumstance of last seen goes against the innocence of accused. No reason can be attributed to PW1 and PW6 for false implication of accused since PW1 is his friend and PW6 is an independent and neutral person not knowing either the accused or the deceased. I find no reason to discredit the concrete testimony of these witnesses. Otherwise also, the accused is required to explain if any third person intervened during this time gap or if he had left the deceased with any third person. No such plea was ever raised during the trial and no S.C.No. 79/10 Page 28 of 48 pages 29 questioning was done on this point to the witness (PW1). It is therefore established by sufficient evidence that accused and deceased were together lastly and this circumstance is incriminating in nature in view of subsequent circumstances, medical reports and consequent death of the deceased.
40. The next circumstance projected by the prosecution is dying declaration made by deceased in presence of public persons. In order to properly appreciate the evidence on this aspect, the sequence of events is important to examine. The deceased was found screaming in the area of Harijan Basti at about 12 mid night and was lying on the road in injured condition. The PCR was called at the spot and injured was removed to the hospital at 12.45 a.m. The FIR was registered u/s 307 IPC on the basis of tehrir sent at 2 a.m and recorded at 2.25 am. The deceased succumbed to the injuries in the hospital at 3.30 am. The first information was lodged by Jairam (PW5) vide EXPW5/A wherein he detailed the circumstances in which the S.C.No. 79/10 Page 29 of 48 pages 30 deceased was found screaming in injured condition and also specifically stated that injured disclosed his name and address and also the fact that his friend Pradeep stabbed him near railway line. There is clearly no delay in registration of the FIR and contents of the FIR appear to be natural and spontaneous version given by the witnesses. The FIR is vital material as it is the first information about the incident and has less chances of altering the version and improvement. Although the author of the FIR i.e. PW5 Jairam in his testimony has failed to support the prosecution case on the aspect that injured named one Pradeep as his assailant but I find no justification to discard the contents of FIR completely. There appears to be no scope for manipulation as the name of accused is included in the FIR and there is no explanation as to how IO came to know about the name of accused even before the death of the deceased. PW5 Jairam has stated that deceased Ashok was lying injured and was removed to hospital by PCR. He has also confirmed the presence of PW6 Vicky S.C.No. 79/10 Page 30 of 48 pages 31 Ratawal at the place and in fact PW6 was the person who had informed PCR. Coming to the testimony of PW6 Vicky Ratawal, he categorically testified that injured Ashok on inquiry told that he was stabbed by Pradeep by knife. He also stated that injured had also given his name and address of Nehru Nagar but he could not recall the same at the time of giving evidence. PW6 was not knowing the injured as well as the accused and therefore no motive can be attributed to him to depose falsely against the accused or to create false evidence against the accused. No suggestion was given to PW6 that he was not present at the spot. During crossexamination, PW6 specifically denied the suggestion that deceased was not in a condition to speak or that deceased did not tell him that he was stabbed by Pradeep. On analysing the testimony of PW6, I am of opinion that statement given by deceased that he was stabbed by Pradeep is admissible u/s 32(1) of Indian Evidence Act as dying declaration. The law relating to dying declaration is well settled with the various judgments of the S.C.No. 79/10 Page 31 of 48 pages 32 higher courts. It has been held in Kushal Rao Vs State of Bombay, (1958) SCR 552 that : " The legislature in its wisdom has enacted S. 32(1) of the Evidence Act that when the statement is made by a person as to the circumstances of the transaction which resulted in his death or in cases in which the cause of the person's death comes into question, such a statement written or verbal made by a person who is dead(omitting the unnecessary words) is itself a relevant fact. This provision has been made by the Legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by crossexamination, is not admissible. The purpose of cross examination is to test the veracity S.C.No. 79/10 Page 32 of 48 pages 33 of the statements made by a witness. In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies; and secondly, the test of cross examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reasons. Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special position which should, on first principles, be respected.''
41. In Krishna Ram Vs State, AIR 1964, Assam 53, the statement made by deceased very shortly after he sustained the injuries was held admissible. The Ld amicuscuriae S.C.No. 79/10 Page 33 of 48 pages 34 argued that dying declaration cannot be believed in the present case as the same is too brief and no motive is attributed to the accused for giving such fatal injuries to the deceased. On giving thoughtful consideration to the arguments of Ld amicuscuriae on this aspect, I am of the opinion that dying declaration made by the accused in the present case appears to be natural and plausible and there is no justification to discard the same. The dying declaration need not be exhaustive and disclose all the surrounding circumstances. Brevity of dying declaration containing few words would not warrant its rejection. A dying person with fatal injuries may be in severe pain and agony. The shortness of statement itself is the guarantee of its truth.
42. In Suraj Deo Oza Vs State of Bihar, AIR 1979, Supreme Court 1505, where there was no injury which might have affected the brain and the only serious injury was in the abdomen which would not have rendered the deceased unconscious immediately, the doctor who examined the S.C.No. 79/10 Page 34 of 48 pages 35 deceased also did not depose that having regard to the injuries, the deceased would have become unconscious immediately, the deceased gave a short statement, which was proved by his medical the manner in which the deceased was assaulted, the Supreme court held that the dying declaration was truthful and reliable.
43. Coming to the present case, the deceased Ashok named accused Pradeep as his assailant at the earliest opportunity. This verbal statement was given to independent public persons who had nexus either with the accused or the deceased. There was no time to tutor the dying man to tell a lie. At the material time, the deceased was in proper state of mind despite multiple injuries on his person, to remember the name of his killer. It is also testified by PW8 Dr. Madhup Garg that while the injured Ashok was in hospital, he was partially conscious and was able to disclose his name and also his father's name. Therefore, from the circumstances it is clear that deceased was in a position to speak and accordingly he made the statement telling about S.C.No. 79/10 Page 35 of 48 pages 36 the manner as well as was able to name the person responsible for giving him fatal injuries. This itself is a very strong circumstance linking the accused to the commission of the offence and at the same time, is inconsistent with any hypothesis of innocence of the accused.
44. The another important circumstance pointed out by the prosecution is that he was not found at his rental accommodation after the incident. The incident took place in the night of 2/3309 and it is stated by PW7 landlord Suraj Singh that accused was not seen by him thereafter despite that he was living there alongwith the deceased and other person Chotu. It is further proved with the evidence of PW12 SI Ramnath and PW25 Inspector Sunderlal that accused was apprehended on 16.3.09 from the house of his sister. No explanation has come forward from the side of the accused as to why he had not come to his room. In the statement recorded u/s 313 CrPC accused stated that deceased lived with him in the year 2005 and thereafter shifted separately with his wife. However, the prosecution S.C.No. 79/10 Page 36 of 48 pages 37 witnesses have consistently stated that at the time of incident, the accused and deceased were living together at house no. 364/2, Gali no. 8, Nehru Nagar. The landlord Suraj Singh examined as PW7 has categorically stated that accused and deceased were living together on the first floor of his house. No crossexamination of landlord was conducted leading to the conclusion that this fact has not been disputed on behalf of accused. The accused has himself admitted in his statement that he was arrested from the house of his sister on 16.3.09. This circumstance also goes against the accused that after the incident he was not found at his usual place of living.
45. The recovery of blood stained clothes is another incriminating circumstance in the chain of circumstantial evidence. According to the prosecution, on 16.3.09, accused was arrested and in pursuance of his disclosure statement, he took police party to his rental accommodation and got recovered his blood stained clothes. Relevant memos have also been proved on this S.C.No. 79/10 Page 37 of 48 pages 38 aspect. It has however been contended by Ld amicuscuriae that landlord PW7 Suraj Singh has failed to support the prosecution version about recovery of clothes at the instance of the accused. On analysing the statement of PW7, I am of the opinion that his statement is supporting to the prosecution case and does not demolish the version about recovery of clothes. It is confirmed by PW7 that police had brought the accused to his house and had taken the accused to his room on 16.3.09 and also police took search there but PW7 left at that time. Although he signed the memos but he was called at P.S to do the same. He did not witness the recovery of blood stained clothes at the instance of the accused. However, the testimony of prosecution witnesses particularly PW12 and PW25 is clear and categorical on the aspect of recovery of clothes and they have remained consistent and confident during crossexamination. No reason can be attributed to the police officials to create false evidence against the accused. It has not been spelled out by the accused that S.C.No. 79/10 Page 38 of 48 pages 39 clothes do not belong to him. The suggestion given to the police officials that no such recovery was effected stands categorically controverted. I find no reason to discredit their testimony. The clothes of the accused were sent for scientific analysis and it is confirmed with FSL reports EXPW21/C&E that human blood was detected on the same. On examination of testimony of police officials read with the confirming statement of PW7 landlord that police had so visited alongwith accused and, was taking search, I find no justification to disbelieve the prosecution version about this recovery. It is therefore proved that accused got recovered blood stained clothes in pursuance of his disclosure statement and discovery is admissible u/s 27 of Indian Evidence Act, 1872. This circumstance further points out towards guilt of the accused.
46. Recovery of weapon of offence is another crucial circumstance sought to be established by the prosecution against the accused. It is evident that after the arrest of the accused and recovery of blood stained clothes on 16.3.09, S.C.No. 79/10 Page 39 of 48 pages 40 the accused was produced before concerned magistrate and was taken on police remand. The recovery of weapon of offence i.e knife was recovered from the bushes near the railway track. The said knife was sent for expert opinion to the autopsy surgeon who opined that the injuries sustained by the deceased were possible by such knife. As per the FSL report human blood was detected on the knife which further strengthens the case of the prosecution that the same was used for assaulting the deceased. The deceased was found having multiple stab injuries on his face, cheek, middle part of neck, arm and chest extending up to abdomen. The cause of death has been hemorrhage and shock consequent to the injuries caused by sharp edged weapon and they were sufficient to cause death in ordinary course of nature. The postmortem report EXPW4/A and the expert opinion of the doctor about the knife EXPW4/B clearly confirm the prosecution version. The knife so recovered was found consistent with the fatal injuries sustained by the deceased. There is no justification to S.C.No. 79/10 Page 40 of 48 pages 41 disbelieve the prosecution witnesses on this aspect. It is implicit that injuries were caused with full intention and knowledge to cause death. The accused on being arrested was also medically examined. He was found having old injury on right palm, consistent as per his disclosure statement and this also connects the accused to the commission of offence.
47. On analysing the testimony of prosecution witnesses, I am convinced that accused in pursuance of disclosure statement got recovered his blood stained clothes as well as weapon of offence and same is admissible u/s 27 Indian Evidence Act.
48. The next contention raised by Ld amicuscuriae is that motive of murder has not been established and prosecution has failed to prove the reason on the part of the accused for committing such serious offence. On the other hand, it has been argued by Ld APP that accused and deceased were having money transactions as stated by PW1 and also there was possibility of illicit relations between wife of the S.C.No. 79/10 Page 41 of 48 pages 42 deceased and the accused and the same could be taken as motive to commit the murder. On consideration of rival contentions on this point, I am of the opinion that prosecution has failed to establish the exact motive with the accused to commit the murder. No concrete evidence has been brought on record about the money transactions between the accused and the deceased or about any kind of illicit relations between the wife of the deceased and the accused. The photographs recovered from the rental accommodation EXPW7/B1 to B3 do not establish the factum of illicit relationship. The witnesses have not deposed anything on this aspect. However, it is also legally settled that proof of motive is not mandatory and essential if other circumstances proved on record form a complete chain and points unerringly towards the guilt of the accused. It has been held by Hon'ble Supreme court in Ranganayaki Vs State (AIR 2005 SC 418) that: "Motive is the emotion which impels a man to do a particular act.
S.C.No. 79/10 Page 42 of 48 pages 43 Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Though, it is a sound presumption that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate the mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailants. In some cases it may be difficult to establish motive through direct evidence, while is some other cases inferences from circumstances may help in S.C.No. 79/10 Page 43 of 48 pages 44 discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act.
No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to an inference adverse to the prosecution.
Absence of motive, even if it is accepted, does not come to aid of the accused. These principles have to be tested on the background of the factual scenario."
In the present case, the motive for committing the crime on the part of the accused although has not been established but the same loses its importance and significance in the face of clear and categorical S.C.No. 79/10 Page 44 of 48 pages 45 circumstantial evidence.
49. The evidence as established and discussed above leads to only one inference that it was the accused who committed the offence. No other inference is possible from the circumstances proved on record. All the links of circumstantial evidence have been proved beyond reasonable doubt bringing home the guilt of the accused. The medical and scientific evidence have also corroborated the circumstantial evidence thereby leaving no scope of inference consistent with the innocence of the accused. There is no merit or substance in the defence pleas put forth on behalf of accused that he has been falsely implicated or that case has not been fairly investigated. There is no reason with the police officials / prosecution witnesses to falsely implicate the accused.
50. In view of aforesaid observations, I hold that prosecution has been able to bring home the guilt of the accused by establishing complete chain of circumstances pointing out towards guilt of the accused. I therefore S.C.No. 79/10 Page 45 of 48 pages 46 convict accused Pradeep Paswan for the offence punishable u/s 302 IPC.
ANNOUNCED IN THE OPEN COURT ON 23.8.11.
(ANJU BAJAJ CHANDNA)
ADDL. SESSIONS JUDGE
DELHI
S.C.No. 79/10 Page 46 of 48 pages
47
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH) DELHI SC NO. 79/10 STATE versus Pradeep Paswan s/o Ramvilas Paswan R/o 364/2, Gali no. 8, Nehru Nagar, Anand Parbat, Delhi.
Permanent Address : Ward No. 12, PS Joy Nagar, Distt. Madhubani, Bihar.
FIR No. : 53/09 Offence U/S : 302 IPC Police Station : Sarai Rohilla ORDER ON SENTENCE Present : Sh Ramesh Kumar, APP for State.
Convict Pradeep Paswan produced from JC. Arguments on point of sentence heard.
It is submitted on behalf of convict Pradeep Paswan that he is 26 years of age and is sole bread winner of his family consisting of his aged parents, two unmarried sisters and one younger brother. The convict belongs to a poor family and is not a previous convict and hence lenient view is prayed for.
On the other hand, it is argued by Ld. APP that convict murdered his friend and no leniency should be shown to him. It is contended that severest punishment be awarded to the convict.
S.C.No. 79/10 Page 47 of 48 pages 48 Keeping in view the submissions, facts and circumstances of the case, I find that present case does not fall in the category of the rarest of the rare cases. I therefore, sentence convict Pradeep Paswan to rigorous imprisonment for life and fine of Rs. 6000/ for the offence punishable u/s 302 IPC and in default of payment of fine simple imprisonment for three months.
Copy of the judgment and copy of order on the point of sentence be given to the convict free of cost. ANNOUNCED IN THE OPEN COURT ON 02.09.11.
(ANJU BAJAJ CHANDNA)
ADDL. SESSIONS JUDGE
DELHI
S.C.No. 79/10 Page 48 of 48 pages