Delhi District Court
The State vs 1. Sanjay on 21 January, 2015
FIR No. 454/13
D.O.D 21.1.2015 P.S S.B Dairy
u/s 302 /34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 07/14
UID NO . : 02404R0352612013
FIR No : 454/13
P. S : S.B Dairy
u/s 302/34 IPC
The State versus 1. Sanjay
S/O Sh Prem Pal Sharma
R/O D-29/1, Shahbad Dairy, Delhi
2. Jai Ram
s/o Sh Daya Shankar
R/O D-29/2, Shahbad Dairy, Delhi
3. Daya Shankar
S/O Sh Bihari Gaur
R/O D-29/2, Shahbad Dairy, Delhi
Date of committal to session court : 17.12.2013
Date of argument : 21.01.2015
Date of order : 21.01.2015
JUDGMENT
1 Briefly stated case of the prosecution is that on 6.9.2013, at about 8:00 pm, four five persons gave beatings to Bhagwandeen @ Cobra (deceased) SC No.07/14 State vs Sanjay etc., (Page 1 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC with the help of brick. On receipt of the information about the incident, CATS Ambulance reached at the spot i.e house no.29/2, D Block, Gali NO.29 , Shahbad Dairy and injured was removed to BSA Hospital where he was examined by Dr. Rajesh and consequently he expired.
2 In the meanwhile, ASI Parvesh along with Ct.
Karan also reached at the spot. Crime team was called who inspected the spot. Photographer who had come there along with crime team, took the photographs . Exhibits were lifted from the spot. Inspector Brijesh Mishra also reached at the spot and is shown to have recorded the statement of Suman, mother of deceased who alleged that accused persons gave beatings on the person of Bhagwandin due to which he expired.
3 Postmortem on the body of deceased was carried out by Dr. Vijay Dhankar who opined that death was due to combined effect of hemorrhagic shock and cerebral edema consequent to multiple injuries to the body. All injuries were antemortem caused by blunt force and was sufficient to cause SC No.07/14 State vs Sanjay etc., (Page 2 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC death in ordinary course of nature. After postmortem dead body was handed over to the relative of deceased.
4 According to the prosecution, on the basis of the complaint of Suman , FIR was registered and accused persons were arrested and their personal search was carried out. Disclosure statement of the accused persons were recorded. Accused persons pointed towards bricks i.e weapon of offence, which were used in the commission of the offence and same were seized. In the background of these allegations and in the wake of statement of the complainant/witnesses, the present criminal case was registered against the accused persons, on accusation of having committed the offences punishable under sections 302/34 IPC at the Police Station Shahbad Dairy, in the manner depicted here-in-above.
5 After completion of the investigation, the final police report (challan) was submitted by the police against the accused persons to face trial for the offence in question.
SC No.07/14 State vs Sanjay etc., (Page 3 of 22 )
FIR No. 454/13
D.O.D 21.1.2015 P.S S.B Dairy
u/s 302 /34 IPC
6 Vide order dated 05.12.2013, Ld MM took
the cognizance of the offence and subsequently, since the offence u/s 302 IPC was exclusively triable by the court of sessions, therefore vide order dated 17.12.2013, case was committed to the court of sessions.
7 Vide order dated 07.04.2014, accused persons were charged for the offences u/s 302/34 IPC to which they pleaded not guilty and claimed to be tried.
8 In order to prove its case, prosecution has examined as many as seventeen witnesses.
9 PW1 HC Rajesh was posted as duty officer at P.S Shahbad Dairy on 6/7.9.2013. He got registered the FIR through computer. He proved the computer generated copy of FIR as ExPW1/A and made endorsement on the rukka ExPW1/B. 10 PW2 Constable Bhupender was posted as constable at BSA Hospital during relevant time. On SC No.07/14 State vs Sanjay etc., (Page 4 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC 6.9.2013, he gave information regarding death of injured Bhagwandeen who was under treatment in the said hospital. Said information was recorded vide DD no.47 A ExPW2/A. 11 PW3 Ct. Karan Singh is the witness who was along with ASI Parvesh during investigation.
12 PW4 Sh Govind Kuldeep was posted with CAT Ambulance during relevant time. He deposed that on that day, at about 8:30PM, they received a call about the incident at H.No.29/2, D-Block, Gali no.29, S.B. Dairy, Delhi. He along with the CAT Ambulance reached there and had removed the four persons to BSA hospital, Rohini.
13 PW5 Ct. Ajay Kumar delivered the copy of FIR at the house of Ld Ilaka Magistrate, Jt CP and DCP.
14 PW6 Insp. Anil Kumar, I/C Crime team , on 6/7.9.2013, on receipt of information about the incident reached at the spot along with his team including photographer and inspected the spot. He SC No.07/14 State vs Sanjay etc., (Page 5 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC prepared report ExPW6/A. 15 PW7 S.I Satya Narain joined investigation of the present case with Insp. Brijesh Mishra on 10.9.2013. He deposed that on that day Doctor handed over one pulanda, viscera box, four envelopes with sample seal to Insp. Brijesh Mishra which was taken into possession vide seizure memo ExPW7/A. 16 PW8 Sh Dalip identified the dead body of deceased Bhagwandeen vide statement ExPW8/A and after postmortem, he received dead body of deceased vide memo ExPW8/B. 17 PW9 Suman is the complainant and sole eye witness of the incident, who has not supported the case of prosecution and she was declared hostile by ld Adll PP for state and was cross examined by the state.
18 PW10 Constable Hansraj was posted as photographer with Crime team during relevant time. On receipt of information about the present incident, he along with crime team reached at the spot where SC No.07/14 State vs Sanjay etc., (Page 6 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC he is shown to have taken 12 photographs of the spot . Photographs are ExPW10/A1 to A 12 and negatives are ExPW10/B1 to B12.
19 PW11 Constable Om Prakash was with the IO Insp. Brijesh Mishra during investigation and he has deposed on the lines of Insp. Brijesh Mishra (PW12).
20 PW12 Insp.Brijesh Mishra is the IO. He deposed that on 06.09.13, he was posted at PS Shahbad dairy. On the receipt of DD no. 47 A, he along with Ct. Om Prakash reached at BSA Hospital where ASI Pravesh kumar along with complainant Smt. Suman, Ct. Karan and accused Daya Shankar, Sanjay, Jai Ram were present. He obtained the MLC of deceased Bhagwandeen @ Cobra along with death summary and one box containing cloths of the deceased and sample seal of hospital. He got medically examined the accused Daya Shankar, Sanjay, Jai Ram. Thereafter, he along with Ct. Om Prakas and ASI Pravesh and complainant Smt. Suman along with accused persons came at the spot i.e. Gali no. 29, D-block, Shahbad Dairy. Crime Team along SC No.07/14 State vs Sanjay etc., (Page 7 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC with photographer were present at the spot. Incharge crime team inspected the spot thereafter photographer took the photographs from different angles on his directions. Accused pointed out towards two bricks which were used in the offence. Blood stains bricks were kept in separate Jar and both the jars were sealed with the seal of "BM". Blood stained concrete was also kept in a plastic container and plastic container were also sealed with the seal of BM and same was taken into possession vide seizure memo Ex. PW 12/A .
21 PW12 further deposed that he recorded the statement of Suman Ex. PW 9/A and made his endorsement on the statement of complainant Ex.PW 12/B and got registered the FIR. Accused Jai Ram, Daya Shankar and Sanjay were arrested vide arrest memo Ex. PW9/C, Ex. PW 9/D and Ex. PW9/E and their personals search were taken vide memo Ex. PW12/C, Ex. PW12/D and Ex. PW 12/E. T-shirt of the accused Jai Ram , which he was wearing at the time of incident was kept in a pullanda and pullanda was sealed with the seal of "BM" and seized vide seizure memo Ex.PW 12/F. Accused Daya Shankar, Jai Ram and Sanjay SC No.07/14 State vs Sanjay etc., (Page 8 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC made a disclosure statement Ex. PW 12/G Ex. PW 12/H and Ex. PW12/I. 22 PW12 further deposed that on 07.09.2013, he along with SI Satya Narain reached at the mortury of BSA hospital where dead body of Bhagwandin was identified by Smt. Suman and Dalip vide statement Ex PW9/F and Ex PW8/A. Postmortem of the dead body of Bhagwandeen was got conducted and after the postmortem dead body was handed over to Suman vide handing over memo Ex. PW 8/B . After postmortem, Doctor handed over one box containing cloths of the deceased and sample seal of hospital and same was taken into possession vide seizure memo Ex. PW12/J. On 10.09.13, he obtained the postmortem report of deceased Bhagwan Deen @ Cobra from the mortuary of the BSA hospital. Doctor handed over one pullanda, viscera box, four envelopes with sample seal to him and same was taken into possession vide seizure memo Ex.PW7/A. PW12 was cross examined by the ld counsel for the accused persons.
23 PW13 HC Surgyan is a formal witness.
SC No.07/14 State vs Sanjay etc., (Page 9 of 22 )
FIR No. 454/13
D.O.D 21.1.2015 P.S S.B Dairy
u/s 302 /34 IPC
24 PW14 Dr. Vijay Dhankar conducted
postmortem on the body of deceased Bhagwandin on 07.9.2013 and gave detailed postmortem report ExPW14/A. He also proved MLC of Bhagwandin, accused Jai Ram, accused Daya Shanker vide ExPW14/B, ExPW14/C and ExPW14/D. 25 PW15 HC Ishwari Lal was posted as MHC(M) at P.S S.B Dairy during relevant time, with whom case properties were deposited.
26 PW16 Insp. Mahesh Kumar, on 30.10.2013 at the request of Insp. Brijesh Mishra, along with him reached at the spot and took rough notes and measurements of the spot on the basis of which he prepared scaled site plan ExPW16/A .
27 PW17 Dr. Meeth Kumar deposed that on 6.9.2013, injured Bhagwandin was examined by Dr. Rajesh under his supervision vide MLC ExPW14/B . He further deposed that Jai Ram, and Daya shanker was also examined by him vide MLC ExPW14/C and SC No.07/14 State vs Sanjay etc., (Page 10 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC ExPW14/D. 28 Thereafter prosecution evidence was closed and statements of accused persons u/s 313 Cr.PC were recorded. During the statement recorded u/s 313 CrPC, accused persons denied the incriminating evidence put to them. However, they did not opt to lead any evidence in their defence.
29 I have heard the ld Addll P.P for the state and Ld counsel for the accused persons . I have also perused the record very carefully.
30 Accused persons are facing trial on the allegations that on 06.09.2013, they committed murder of Bhagwandin @ Cobra with the help of bricks. From the case of the prosecution, as set up by the prosecution, following two issues need to be adjudicated:
i) The death of Bhagwandeen @ Cobra was homicidal in nature;
SC No.07/14 State vs Sanjay etc., (Page 11 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC
ii) Accused persons committed the murder of Bhagwandeen @ Cobra with the help of bricks.
i) THE DEATH OF Bhagwandeen @ Cobra WAS HOMICIDAL IN NATURE 31 Deceased Bhagwandeen is shown to have been removed to the hospital by Govind Kuldeep (PW4), who was working with CATS Amublance. In the BSA hospital, Bhagwandeen(deceased) was examined by Doctor Rajesh under the supervision of Doctor Meeth Kumar (PW17) vide MLC ExPW14/B. 32 PW14 Dr. Vijay Dhankar is shown to have conducted the postmortem on the body of (deceased) and he proved the postmortem report as ExPW14/A. He opined that death is due to combined effect of hemorrhagic shock and cerebral edema consequent to multiple injuries to the body. All injuries were found to beante-mortem, fresh before death, caused by blunt force and sufficient to cause death in the ordinary course of nature. This has not been disputed by the accused persons.
SC No.07/14 State vs Sanjay etc., (Page 12 of 22 )
FIR No. 454/13
D.O.D 21.1.2015 P.S S.B Dairy
u/s 302 /34 IPC
33 PW14 was not cross examined by the
accused persons despite opportunity. It has not been disputed that the injuries sustained by Bhagwandeen (deceased), as indicated in the postmortem report ExPW14/A, were sufficient to cause his death in the ordinary course of nature. Accepting the medical evidence, it is clear that Bhagwandeen suffered a homicidal death.
ii) Accused persons committed the murder of Bhagwandeen with the help of bricks.
34 In order to bring home the guilt of the accused persons, prosecution has examined PW9 Suman as she is the only eye witness to the incident in question. Rather, I would say that the entire case of the prosecution rested upon her testimony. PW9 Suman completely turned hostile . She testified about the incident and deposed that four five persons were giving beatings to her son. Out of those persons, one boy was Sikh person . He was shouting in a louder voice and was saying that "aaj isko jaan se khatam kar SC No.07/14 State vs Sanjay etc., (Page 13 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC dete hai". She pleaded the public persons to help her. When they tried to save her son, they were also given beatings by assailants. Attention of the witness was drawn towards the accused persons present in the court . PW9 categorically stated that she has seen the accused Sanjay first time in the court and accused Sanjay was not present and he had not given beatings to her son .
35 By pointing towards accused Jai Ram and Daya Shankar, PW9 Suman stated that accused persons did not gave any beatings to her son. She rather stated that aforesaid accused persons namely Jai Ram and Daya Shanker tried to save her son from the clutches of culprit due to which accused Jai Ram and Sanjay also sustained injuries. There is court observation that witness has failed to identify any of the accused persons.
36 PW9 further deposed that she cannot identify weapon of offence i.e bricks.
37 Since PW9 was resiling from her previous
SC No.07/14 State vs Sanjay etc., (Page 14 of 22 )
FIR No. 454/13
D.O.D 21.1.2015 P.S S.B Dairy
u/s 302 /34 IPC
statement, therefore, she was cross examined by ld Adll PP for state. Even during her cross examination, nothing could be brought out from the mouth of this witness to establish the allegations of the prosecution, which may be sufficient to prove the case of the prosecution. She admitted her thumb impression on the complaint ExPW9/A but replied that said statement was never read over to her and she further stated that she did not gave any such statement. All the suggestions put by ld Adll PP for state to this witness has been denied by her.
38 PW9 was also shown the weapon of offence i.e bricks but she stated that she cannot identify the bricks. Even clothes belonging to the deceased put to this witness, were not identified by her.
39 As stated herein above, PW9 was the only material witnesses to establish the case of the prosecution beyond reasonable doubt that accused persons committed the murder of Bhagwandeen (deceased) with the help of brick but she has turned hostile and have said nothing against the accused SC No.07/14 State vs Sanjay etc., (Page 15 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC persons .
40 Other witnesses examined by the prosecution are the police officials. PW1 HC Rajesh is duty officer, PW2 Constable Bhupender was posted at BSA hospital as duty constable, PW4 Sh Govind Kuldeep was working with CATS Ambulance who removed injured to the hospital, PW5 Ct. Ajay Kumar dropped the copy of FIR with authorities concerned, PW6 Insp Anil is I/C Crime team, PW7 S.I Satya Narain is witness in whose presence IO seized the pulanda , viscera box and four envelopes with sample seal handed over by doctor, PW10 Constable Hansraj was photographer with crime team. PW13 HC Surgyan is DD writer . PW15 was posted as MHC(M) with whom case properties were deposited and PW16 Inspector Mahesh Kumar prepared scaled site plan . These witnesses are not the eye witnesses to the incident they had not said even a single line against the accused persons to show that they were involved in the commission of the crime.
41 Now, in these circumstances testimonies of
SC No.07/14 State vs Sanjay etc., (Page 16 of 22 )
FIR No. 454/13
D.O.D 21.1.2015 P.S S.B Dairy
u/s 302 /34 IPC
PW3 Ct. Karan Singh, PW11 Constable Om Prakash and PW12 Inspector Brijesh Mishra remains. Here it would be suffice to mention the testimony of PW12 Insp. Brijesh Mishra, as other witnesses have deposed more or less on the lines of PW12.
42 PW12 deposed that accused Jai Ram, Daya Shankar and Sanjay were arrested vide memo ExPW9/C, ExPW9/D and ExPW9/E. Their personal search was conducted vide memo ExPW12/C, ExPW12/D and ExPW12/E. T Shirt of accused Jai Ram which he was wearing at the time of incident was sealed and seized vide seizure memo ExPW12/F. Disclosure statement of accused Daya Shankar, Jai Ram and Sanjay was recorded vide ExPW12/G, PW12/H and PW12/I. Accused pointed out towards two bricks which were used in the offence. Blood stained bricks were sealed and seized vide seizure memo ExPW12/A.
43. From the testimonies of PW3 , PW11 and PW12 at the most 2-3 things come out. Accused person were arrested, there personal search were conducted and their disclosure statements were SC No.07/14 State vs Sanjay etc., (Page 17 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC recorded . It is alleged that T shirt of accused Jai Ram which he was wearing at the time of incident was kept in a pullanda , it was sealed with the seal of "BM" and seized vide seizure memo ExPW12/F. It is further alleged that two bricks i.e weapon of offence were recovered at the instance of the accused persons and blood stained "bricks" were sealed with the seal of "BM" and was seized vide seizure memo ExPW12/A. Said bricks were identified by the witness as ExP-1 and ExP-2 and the T shirt worn by accused Jai Ram at the time of incident were identified as ExP 7.
44 As per the story of prosecution PW12 Insp.
Brijesh Mishra deposed that the weapon of offence i.e "bricks " were seized vide ExPW12/A at the instance of the accused persons but it wound not be safe to place reliance upon his testimony as there is no corroboration from any independent witness.
45 The weapon of offence i.e bricks EXP1 and ExP2 were sent to FSL for examination. It is correct that as per the FSL result ExPX1, it has come on record that blood was detected on the aforesaid "bricks" but SC No.07/14 State vs Sanjay etc., (Page 18 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC only on the basis of the same accused persons cannot be convicted.
46 At the most the recovery of the weapon of offence i.e " bricks " at the instance of accused persons is the only incriminating circumstance against the accused persons, as brought by the prosecution.
47 That being so, the moot question for consideration for this court is whether the said piece of evidence itself is sufficient to convict the accused persons or not. The answer is "NO" .
48 Only on the basis of this sole circumstance i.e recovery of a possible weapon of offence at the instance of the accused persons , they cannot be convicted for the offence of murder. In this regard , I may mention the authority of Deepak Chaddha vs State of Delhi, 2012 (1) JCC 540 wherein Hon'ble High Court of Delhi held " We do not propose to deal with the purity of the evidence relating to the two recoveries i.e the recovery of the shirt and the knife at the instance of the appellant, for the reason, in the SC No.07/14 State vs Sanjay etc., (Page 19 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC decisions reported as Kallo Passi Vs State, 2009(2) vs Chhatrasing & Ors., AIR 1977 SC 1753; Surjit Singh vs State of Punjab, AIR 1994 SC 110; Deva Singh Vs State of Rajasthan , 1999 CriLJ 265 , & Prabhoo vs State of UP, AIR 1963 SC 1113 the Supreme Court held that in the absence of other incriminating evidence, the circumstances of seizure of blood stained clothes at the instance of the accused as also the recovery of a possible weapon of offence at the instance of the accused are wholly in sufficient to sustain the charge of murder against the accused".
49 Further, during the testimony of PW9 Suman, it has come on record that accused Jai Ram tried to save Bhagwandeen from the assailants and in doing so, accused Jai Ram is shown to have sustained injury . In the background of aforesaid fact, there is every possibility that accused Jai Ram might have received the blood on his T Shirt ExP-7 in that process. Moreover, again it could have been another piece of circumstantial evidence against the accused persons. In the present case, I find that the prosecution has failed to prove the offence against the accused persons beyond shadow of doubt. As indicated herein SC No.07/14 State vs Sanjay etc., (Page 20 of 22 ) FIR No. 454/13 D.O.D 21.1.2015 P.S S.B Dairy u/s 302 /34 IPC above, the moment eye witnesses turned hostile, the case of prosecution took the route of circumstantial evidence.
50 It is well settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
51 The legal position regarding the standard of proof and the test which the circumstantial evidence must satisfy is well-settled by a long line of decisions of Hon'ble Supreme Court and in this regard, one may take the help of decisions of a case Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116.
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52 In the present case, I find that the prosecution
has failed to prove the offence against the accused
persons beyond shadow of doubt. The chain of evidence as brought on record by the prosecution is not so complete from which the conclusion of guilt against the accused persons can be drawn. Thus, I am left with no option but to acquit the accused persons . Accused Sanjay, Jai Ram and Daya Shankar therefore stands acquitted from the charge u/s 302/34 IPC .
53 Accused persons be released immediately, if not wanted in any other case.
54 In terms of section 437(A) CrPC, accused persons are directed to furnish bail bond in the sum of Rs 10,000/- each with one surety in the like amount.
55 File be consigned to record room.
Announced in the open (Rajesh Kumar Goel) Court today i.e 21.1.2015 ASJ-5, North, Rohini Courts SC No.07/14 State vs Sanjay etc., (Page 22 of 22 )