Delhi District Court
State vs . 1. Vishnu@ Bhisham on 24 January, 2009
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS
JUDGE: FTC (CENTRAL) : DELHI
State Vs. 1. Vishnu@ Bhisham
S/o Panchu Ram
R/o 7022/1, M.R.N Nagar,
Karol Bagh, Delhi
2. Kartar S/o Rattan Lal
R/o 16/186 I.H.S. Road,
Bapa Nagar, Delhi
3. Bharat Bhushan @ Bantoo
S/o Bhagat Singh
R/o 16/122 I.H.S Road,
Bapa Nagar, Delhi
4. Sanjay S/o Kawal Ram
R/o 5930, Gali No.1,
Block No.4, Dev Nagar, Delhi.
5. Rinku @ Raju S/o Kawal Ram
R/o 5930, Gali No.1,
Block No.4, Dev Nagar, Delhi.
SC No : 23/08
Case arising out of :
FIR No. : 289/2000
U/S : 302/34 IPC
P. S. : Prasad Nagar
Date of FIR : 31.07.2000
Date of Institution in Sessions Court : 27.11.2000
Date on which case is transferred to
Fast Track Court : 16.12.08
Date of Final Arguments : 15.01.09
Judgment reserved on : 21.01.09
Date of Judgment : 24.01.09
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J U D G M E N T:
1. The accused Vishnu @ Bhisham, Kartar, Bharat Bhushan @ Bantoo, Sanjay and Rinku @ Raju are facing trial before Court for acting in furtherance of their common intention to murder Vijay on 31.7.00 at about 2 pm.
2. As per the prosecution case the Investigating Officer Insp. Ramesh Chander reached the place of incident, at Gurunanak Marg, in between Block No. 9 & 4, Gali No.4, Dev Nagar on receipt of DD No. 33A. He found SI G.P. Singh, Ct. Kashi Nath and Ct. Ram Kripal at the spot. The injured was reported to have been taken to Sippy Nursing Home. Ct. Ram Kripal was left for safe custody of the site of the incident while the remaining police officers proceeded to Sippy Nursing Home where it was revealed that injured had been taken to RML Hospital. Investigating Officer proceeded to RML Hospital where he found that injured Vijay had been declared ''brought dead'' vide MLC No. 84372/2000. His uncle Hem Chand S/o Riti Ram was also present in the hospital and told the Investigating Officer that on 31.7.2000 he was returning from Som Bazar via Gurunanak Marg to his home at about 8 pm. When he reached corner of Gali No.1, Block No.9, Dev Nagar he saw his nephew Vijay's friend Shekhar running towards chowk. As soon as he saw Hem Chand, Shekhar told him that Rinku, Vishnu and their friends were giving beatings to Vijay near Azad Restaurant. Hem Chand went running alongwith Shekhar to the corner of Gali No.4 and saw that a huge crowd was collected there and Rinku, his brother Sanjay, Vishnu and Kartar alongwith their 3 other accomplices had thrown his nephew Vijay on the road and were giving him severe beatings. Rinku and his brother Sanjay had broken Pepsi bottles in their hands while Vishnu had a knife. The other boys had dandas in their hands. Hem Raj raised alarm of "Bachao Bachao" hearing which Devender, Shekhar and other people present at the spot went on to save Vijay. The assailants ran away towards Block No.4. Hem Raj alongwith Devender and Shekhar as well as one policeman, 2 of 27 3 who had reached the spot, took Vijay to Sippy Nursing Home. From the said hospital, upon directions of the doctor, they took injured Vijay, in a PCR Van standing at Chowk, to RML Hospital where Vijay was declared brought dead. The Investigating Officer recorded statement of Hem Raj and commenced investigations of the case. Accused Kartar and Vishnu were first ones to be arrested and were arrested on 1.8.2000. One knife is stated to have been recovered at the instance of accused Vishnu on 4.8.00.
3. Accused Bharat Bhushan was arrested on 18.8.00 after having surrendered before the Court. One knife is stated to have been recovered at the instance of accused Bharat Bhushan. Accused Rinku and Sanjay were the last ones to be arrested and were arrested on 18.9.2000 after they were produced on production warrants issued by the Court at the request of Investigating Officer who informed the Court that both these accused were in custody in another case. One knife is stated to have been recovered at instance of accused Rinku.
4. After completing investigations charge sheet in the case was filed before Ld MM. Pursuant to compliance with the provisions of Section 207 Cr.P.C. the matter was committed to Sessions Court for Trial.
5. Prima Facie case U/S 302/34 IPC was made out against all the accused persons for which charge was framed. The accused did not plead guilty and claimed trial.
6. In order to prove its case prosecution examined 24 witnesses including complainant Hem Raj and eye witnesses Devender and Shekhar.
7. Complainant Hem Raj has been examined as PW-
3. In his statement recorded on 26.7.02 PW-3 deposed that on 31.7.01 at about 8 pm when he was going to his house via Guru Nanak Marg, Devender and Shekhar came running there and told him that accused Kartar, Bantoo, Sanjay and Rinku were giving beatings to Vijay and were accompanied by 1/2 persons. When he reached there he saw Rinku and Sanjay were having big Pepsi bottles in their hands. Accused Bantoo was having a knife and 3 of 27 4 Kartar and others were having iron rods and they all were giving beatings to Vijay who was lying on the ground. When PW-3 reached there all the accused persons started running towards Gali No.4, Block No.9. In the meantime two police officials also came there. PW-3 took his nephew to Sippy Nursing Home but was told by hospital authorities to go elsewhere. From Sippy Nursing Home they came to Pikarwala Chowk in a Rickshaw. One Gypsy came there and injured was taken to RML Hospital in the said Gypsy. He was declared dead on reaching hospital. PW-3 proved his statement as Ex.PW-3/A. He further deposed that Investigating Officer had interrogated Devender and Shekhar on same day and also seized blood stained earth, pieces of Pepsi Bottles, blood stained Rohri, earth control vide memo Ex.PW-1/B to 1/E, after preparing their parcels and sealing them. The PW-3 collected the body of deceased after postmortem on 1.8.00. PW-3 also accompanied Investigating Officer to Prashant Nagar Jheel where accused dug out earth but nothing could be recovered. Accused Kartar and Bantoo also took them to Ajmal Khan Park where they got recovered one knife from under the earth. Accused Rinku and Sanjay were apprehended by the police after about one month. This witness was declared hostile by Ld Addl. PP as it was stated that he was resiling from his previous statement. When Ex.PW-3/A was put to the witness, he stated that only his signatures had been obtained on PW-3/A and that his statement had not been read over to him. He termed it correct that the incident had taken place on 31.7.00 but denied that he had named only accused Vishnu and Rinku in his statement Ex.PW-3/A. He also denied that accused Vishnu was armed with knife or that accused Rinku and Sanjay were having pieces of Pepsi Bottles. He also denied that accused Kartar and Vishnu had been apprehended by the police on 1.8.00. He stated that accused Kartar had been apprehended by police on some other day at instance of the secret informer. He expressed his inability to identify accused Vishnu and denied that accused Kartar and Vishnu had been apprehended by the Investigating Officer 4 of 27 5 at his instance. On being put disclosure statements of accused Kartar and Vishnu, PW-3 stated that his signatures had been obtained there upon without being told of the contents by the Investigating Officer. He also denied that accused Vishnu got recovered one knife on 2.8.00. When the seizure memo of said knife was put to the witness, he stated that he had signed the memo when it was blank and denied that pulanda of knife had been prepared in his presence by the Investigating Officer . He also expressed his inability to identify the knife alleged to have been recovered at the instance of accused Vishnu.
8. The arrest of accused Sanjay and Rinku on 18.9.00 and recovery of knife at instance of accused Rinku was also put to the witness, however, PW-3 denied having identified said accused specifically on 18.9.00. Though he admitted that one knife had been got recovered by accused Rinku, he denied that same had been sealed in his presence and seized vide memo Ex.PW-3/B. The factum of handing over of his blood stained clothes to Investigating Officer was admitted by PW-3, however, he denied that said clothes had been put in a parcel and affixed with seal of GPS and seized vide memo Ex.PW-1/F. The witness was shown broken pieces of Pepsi Bottles and after his identification the same were exhibited as Ex.P-1. PW-3 also identified his pant and shirt which were exhibited as Ex.P-2 & P-3. One knife, stated to have been recovered from possession of accused Rinku, was shown to the witness who failed to identify the same.
9. This witness was recalled for cross examination on 18.9.02. On this day the witness retracted from his earlier statement, made on 26.7.02. During his cross examination by Ld Defence Counsel PW-3 stated that on 31.7.01 he was present at his home at about 8/8.30 pm when 3/4 persons told him that his nephew Vijay was lying in an injured condition near Azad Restaurant. PW-3 went to Azad Restaurant alongwith said 3/4 persons and found that his nephew had already been removed by the police to the hospital. He stated that he had neither seen the persons who had caused injuries nor knew how his 5 of 27 6 nephew sustained injuries. He also denied that he knew any of the accused. He stated that he had given statement in the Court on 26.7.02 upon instructions of one uniformed police officer who threatened him of dire consequences. He clarified that he had neither witnessed the incident nor anything had been recovered from any of the accused in his presence. He stated that his signatures had been taken on blank papers and denied that Ex. PW-3/A and Exhibits PW-1/A to 1/F had been signed by him after the said documents had been drawn up. He also stated that his clothes got blood stained when he had taken his nephew in his arms at Willingdon Hospital. PW-3 claimed that he had identified accused at the pointing out of the police officer at whose instance he had forcibly deposed on 26.7.02.
10. Considering the manner in which witness had changed his statement, Ld Addl. PP sought permission to further cross examine the witness and was allowed to do so. During his cross examination by Ld Addl. PP PW-3 stated that he could not tell the name of police official who had tutored him. He denied that he had signed all the papers after being satisfied with the contents of the documents or that he had seen accused persons giving beatings to deceased Vijay with knives and dandas on 31.7.01.
11. This witness was cross examined further by Ld Defence Counsel as well and stated that he had not been told by Devender and Shekhar on 31.7.00 that accused Kartar, Bantoo, Sanjay and Rinku had been giving beatings to Vijay.
12. The other eye witnesses namely Devender and Shekhar were examined as PW-4 & PW-5 respectively. Both these witnesses have been put forth by prosecution as friends of deceased Vijay. As per case of the prosecution deceased Vijay was going alongwith PWs Devender and Shekar, on the day of the incident, when stopped by accused Sanjay, Vishnu, Rinku, Kartar and Bantoo and their two other accomplices in Gali. When the accused started beating Vijay, both PW Devender and Shekhar ran for help and brought Hemraj to the spot and 6 of 27 7 then alongwith public persons and Hemraj tried to intervene. The injured Vijay is stated to have been taken to hospital by PWs Devender and Shekhar alongwith Hemraj and one police constable who too reached the spot.
13. PW Devender, who was examined as PW-4, gave a different version all together and deposed that on the day of the incident he had gone out of his house at 8 pm after taking dinner. He saw one person in injured condition lying on the road and he left said person with PCR Van for being removed to hospital and returned home. At about 3 am police came to house of PW-4 woke him up and took him to Police Station where he was given beatings by senior police officials and was told to reveal names of the persons who had caused injuries to the injured. When PW-4 expressed his inability to do so his signatures were obtained on several papers and he was permitted to leave. Despite his cross examination by Ld Addl. PP, PW-4 failed to depose in favour of the prosecution. He denied that on the day of the incident he had seen accused Sanjay, Rinku and Bantoo armed with knives, Kartar and two others armed with dandas and accused Vishnu without any weapon or that accused Sanjay had given blow with a Pepsi bottle on the head of Vijay or that accused Rinku, Bantoo and Vishnu, who had been given knife by Sanjay, gave knife blows to Vijay. He did not identify the accused persons despite being pointed out.
14. PW-5 Shekhar also gave a version of his own. He stated that he had merely gone to the hospital on receiving call regarding his friend having met with an accident and on reaching hospital his signatures were obtained on blank papers. This witness was also cross examined at length by Ld Addl. PP but nothing which could be of any aid to the prosecution could be brought about from the mouth of this witness.
15. The remaining witnesses examined by prosecution included PW-9, Dr. G. Prakash, who had examined the injured and prepared his MLC Ex.PW-9/A. He stated that injured had been ''brought dead'' and that he was brought by ASI Kripal Dutt with alleged history of being found on 7 of 27 8 road side with multiple injuries. The postmortem examination on dead body of deceased was conducted by PW-8, Dr. S.K. Khanna. He proved the report of postmortem examination of deceased as Ex.PW-8/A.
16. PW-12, Ct. Satpal, was posted as duty constable at PP, RML Hospital on 31.7.00 and had received one sealed pulanda from CMO RML Hospital and handed it over to Investigating Officer alongwith sample seal vide Ex.PW-1/A and deposed regarding the same.
17. PW-22, Jhamman Singh, was working as technical supervisor, mortuary MAMC College, on 1.8.00 and had handed over two cloth parcels containing clothes and blood sample of deceased Vijay to police vide memo Ex.PW-16/A and deposed regarding the same.
18. PW-7, ASI Balbir Singh, was posted as Duty Officer at Police Station Prasad Nagar on 31.7.00. He deposed about factum of having received call from Sippy Nursing Home, on 31.7.00, which was reduced to writing vide DD No. 32A and about scribing DD No. 33A on the same day. The copies of DD's were proved as Ex.PW-7/A & 7/B. PW-7 also proved copy of FIR as Ex. PW-7/D in accordance with law.
19. It is worthwhile to note the name of hospital to which deceased Vijay ws taken has been mentioned as "C.P. Nursing Home" in some documents and statement of witnesses and as "Sippy Nursing Home" in others. For the sake of brevity the said nursing home would be referred to as "Sippy Nursing Home" which is its correct name as per documents placed on record by prosecution.
20. PW-15, Ct. Krishan Lal, was posted as Motorcycle Rider at Police Station Prasad Nagar on 31.7.00 and had taken copy of FIR to the residence of Ld MM as also senior police officials, at their residence, and deposed regarding the same.
21. PW-21, SI Ganesh Prasad, had received DD No. 32A on 31.7.00 for investigations. He deposed that he alongwith Ct. Kashi Nath proceeded to Sippy Nursing Home, Prasad Nagar, for investigations on receipt of DD No. 32A. On way to Sippy Nursing Home he received DD 8 of 27 9 No. 33A informing him that a person had sustained injuries and on receiving this information they went to Gurunanak Marg, Block No. 9, Gali No. 4 where they found some blood scattered and some scattered pieces of broken Pepsi Bottle. In the meantime, Insp. Ramesh Chander, SHO, Police Station Prasad Nagar, also reached there. PW- 21 went alongwith Investigating Officer to Sippy Nursing Home and came to know that injured had been removed to RML hospital after which they all proceeded to RML hospital where they came to know that "injured Rajiv" had been declared "brought dead" by the doctor who had examined him. Investigating Officer met one Hem Raj in the hospital and recorded his statement through PW-21. He also obtained clothes of deceased from Duty Constable. Tehrir was sent and dead body was inspected and its inquest papers were prepared by the Investigating Officer . They returned to the spot alongwith two boys, one of whom was Ravinder. Ct. Kashi Nath also reached the spot with Tehrir which was handed over to Investigating Officer alongwith copy of FIR. Samples were taken from the spot and statement of witnesses were recorded. Investigating Officer prepared site plan and called crime team to inspect the site.
22. The witness failed to give the details of some of the investigations carried out in his presence and was cross examined by Ld Addl. PP. During his cross examination PW-21 admitted that they had left Ct. Ram Kripal at the spot before leaving for hospital and that the clothes of deceased had been seized vide seizure memo and that name of deceased was Vijay and that of witnesses Devender and Shekhar and that Investigating Officer had prepared site plan at pointing out of Hem Chand and that the samples lifted from the spot had been sealed with the seal of GPS and then seized by the Investigating Officer . He also admitted having visited house of Hem Chand and having seized his blood stained pant and shirt vide seizure memo Ex.PW-1/B. The case property namely broken Pepsi bottle pieces and one pant and blood stained shirt were shown to the witness who identified the same as Ex.P-1 to 9 of 27 10 P-3. During his cross examination by Ld Defence Counsel, PW-21 stated that he had joined investigations of the case only on 31.7.00, however, he admitted having scribed Ex.PW-1/A to 1/F as well as other documents mark X to X3 and X8 dated 1.8.00 and documents mark X4 to X9 (excluding X8) dated 2.8.00. He also admitted having recorded the statement of Hem Chand, complainant. He stated that he had done so under instructions from SHO.
23. PW-1 & PW-2 had joined investigations of the case and deposed regarding the same. PW-1 Ct. Kashi Nath had left with SI G.P. Singh for investigations on 31.7.00 on receipt of DD No. 32A and was also with him when he received DD No. 33A and deposed regarding it. He also stated that clothes of deceased were seized vide memo Ex.PW-1/A by Investigating Officer in his presence and that statement of Khem Chand was recorded at the hospital and that on receipt of rukka he had taken the same to Police Station and got case FIR registered. He further deposed that after getting case FIR registered he returned to the spot and handed tehrir and copy of FIR to Investigating Officer and that Investigating Officer had seized broken pieces of Pepsi bottles, blood stained cotton, earth control and earth samples from the spot and after preparing parcels sealed them with seal of GPS and seized them vide memos Ex.PW-1/B to 1/E. The blood stained clothes of Hem Chand were similarly seized by the Investigating Officer vide memo Ex.PW-1/F. He identified the case property i.e. broken pieces of Pepsi Bottles, one pant and one full sleeve shirt as Ex.P-1 to P-3.
24. PW-2 Ct. Ram Kirpal had taken copy of DD No. 33A to SI G.P. Singh upon directions of the Duty Officer and deposed regarding the same. He then deposed how he had joined investigations of the case and was left at the spot for surveillance. He too identified his signatures on Ex.PW-1/B to 1/F and also identified the case property.
25. PW-24, Insp. Ramesh Chand, is the first Investigating Officer of the case. He deposed as to the manner in which he had proceeded to the place of occurrence on 31.7.00 at about 8 pm on receipt of wireless 10 of 27 11 call and having met SI G.P. Singh and two constables at the spot. He also deposed how they reached RML Hospital where they found that injured Vijay had been declared brought dead. He further deposed that he collected one pulanda from Duty Constable at hospital and commenced investigations during which he recorded statement of Hem Chand, an eye witness to the incident. He proved Tehrir as Ex.PW-24/A which he stated he had sent for registration of case through Ct. Kashi Nath. He proved the death report prepared on inspection of the dead body as Ex.PW-24/B and identification statements of Gyan Chand and Hem Chand as Ex.PW-24/C & D respectively. He further deposed that he had made inquiries from other eye witnesses Devender and Shekhar and thereafter proceeded to spot alongwith SI G.P. Singh, Devender and Shekhar. At the spot the photographer had arrived and photographs were taken in presence of public witnesses Devender, Hem Chand and Shekhar. He also inspected the site and prepared site plan Ex.PW-24/E. He also described the manner in which samples were lifted from the spot and seized vide memos Ex.PW-1/D to 1/E. All these memos he stated were got prepared through SI G.P. Singh.
26. He further deposed about having seized shirt and pant of Hem Chand from his residence vide memo Ex.PW- 1/F. The case property was shown to the witness and was duly identified by him. The witness deposed that case property had been deposited by him in Malkhana upon return to Police Station. He further deposed that on 1.8.00 he had got postmortem examination conducted on the dead body of deceased and seized sealed cloth parcels from Jhamman Singh, technical supervisor, vide memo Ex.PW- 16/A. After postmortem dead body was handed over to the relatives of the deceased. Search for accused was commenced at different places but there was no clue. Thereafter a secret information was received pursuant to which PW-24 alongwith public witnesses reached tank road. The two boys namely Vishnu and Kartar were identified by PWs Hem Chand, Devender and Shekhar as those involved in the murder of Vijay. Both the accused 11 of 27 12 were arrested and their disclosure statements were recorded vide Ex.PW-16/C and Ex.PW-16/B. Pointing out memo Ex.PW-24/1 was prepared at instance of the accused. On 2.8.00 accused Vishnu and Kartar were taken on police custody remand. PWs Hem Chander and Devender as well as SI G.P. Singh and Ct. Dinesh were joined in investigations. One knife was recovered at instance of accused Vishnu from Jheelwala Park. PW-24 proved the sketch of knife as Ex.PW-24/2, the seizure memo of knife as Ex.PW-24/3 and the knife as Ex. P-1A (inadvertently exhibited as Ex.P-1 which is the exhibit number given to broken Pepsi Bottles) and stated that knife was the same that had been recovered at instance of accused Vishnu.
27. During his cross examination by Ld Defence Counsels, PW-24 admitted that most of the documents prepared during the course of investigations as well as statements of witnesses recorded U/S 161 Cr.P.C. were either written by SI G.P. Singh or some other police officials. He denied having obtained the signatures of PWs Hem Chand, Devender and Shekhar by use of force on blank papers. He also stated that he did not remember to whom seal had been given after use and when SI G.P. Singh had taken it back. He also stated that he had made efforts to join public witnesses in recovery proceedings of knife, recovered at instance of accused Vishnu, but none had agreed. He admitted that no site plan of place of recovery of knife had been made and no finger prints of accused were collected. He stated that no chance prints were found on the knife.
28. PW-6, Ct. Dinesh, remained with Investigating Officer during the course of investigations on 1.8.00 and deposed regarding the same.
29. PW-19, SI Umesh, had conducted the investigations in the case with respect to accused Bharat Bhushan and deposed regarding the same. He stated that he had gone to Court alongwith Ct. Prahlad on 18.8.00, when accused Bharat Bhushan moved an application for surrender, and that he had interrogated and arrested the 12 of 27 13 accused with the permission of the court. He had also taken accused on police custody remand. During the course of interrogation accused Bharat Bhushan disclosed about having committed offence with the other co-accused and stated that he could get the weapon of offence namely the knife recovered. PW Shekhar was joined in investigations and one knife was recovered from bushes behind Gurdwara, at the instance of accused, in presence of PW Shekhar and Ct. Prahlad. He proved the disclosure statement of accused as Ex.PW-19/A, arrest and personal search memo of accused as Ex.PW-19/B & C, pointing out memo prepared at instance of accused as Ex.PW-19/D, the sketch of knife recovered at instance of accused as Ex.PW- 19/E and seizure memo of knife as Ex.PW-19/F. One knife, alleged to have been recovered from possession of accused Bharat Bhushan, was produced before the court sealed with the seal of FSL and was shown to the witness after being taken out from the parcel. The witness identified seal of UB as Ex.P-5 and buttondar knife as Ex.P-6. He proved the statement of PW Shekhar recorded on 18.8.00 as Ex.PW-19/G. During his cross examination by Ld Defence Counsel PW-19 admitted that he had not prepared the site plan of place of recovery of the knife. He also admitted that the flower design on the knife actually had 10 circles/flowers on one side of its handle and 11 circles/flowers on other side of handle whereas he had shown only 6 of them on the sketch which he had prepared. He also stated that disclosure statement Ex.PW- 19/B and pointing out memo Ex.PW-19/D and statement of PW Shekhar Ex.PW-19/G were in the hand writing of Ct. Prahlad.
30. PW-16, SI Sharad Chand, had joined investigations of the case with PW-24 on 1.8.00 and deposed on the lines of PW-24. He proved his signatures on Ex.PW-16/B to 16/E and also deposed about the arrest of accused Kartar and Vishnu at the instance of witnesses. PW-16 had also conducted investigations with respect to accused Rinku and Sanjay on 18.9.00 when they surrendered before the concerned court and deposed 13 of 27 14 regarding the same. He stated that he had interrogated and formally arrested the accused with permission of the court and had taken them on police custody remand for one day. He interrogated the accused Rinku and Sanjay and recorded their disclosure statements Ex.PW-16/F and 16/G. Accused Rinku got recovered one knife from park adjacent to lake from beneath the earth. PW-16 proved sketch of knife as Ex.PW-16/H and the seizure memo of knife as Ex.PW-3/B. He also deposed that he had obtained postmortem report of deceased on 20.8.00 and handed it over to Investigating Officer and had taken the exhibits to FSL on 20.10.00. One knife, alleged to have been recovered at instance of accused Rinku, was shown to the witness and was identified and exhibited as Ex.P-4. During his cross examination by Ld Defence Counsel PW- 16 expressed his ignorance as to whether accused Sanjay and Rinku had been produced before the court pursuant to application for issuance of their production warrants filed by the prosecution. He admitted that no site plan of the place of recovery of the knife had been prepared. He stated that recovery had been effected from accused Rinku in presence of PW Hem Chander.
31. PW-11 Ct. Subhash Chand had joined investigations with PW-16 on 18.9.00 and deposed regarding the same. He proved the personal search memo of accused Rinku as Ex.PW-11/A. He also stated that the knife recovered at instance of accused Rinku was covered with mud and had been sealed with the seal of SCN and the seal after use was handed over to Ct. Kashi Nath. He also proved the pointing out memo prepared at the instance of accused Sanjay and Rinku as Ex.PW-11/A and identified the knife as Ex.P-4. During his cross examination by Ld Defence Counsel PW-11 stated that knife had been lying behind the bushes and that information regarding the knife had been given by both the accused. He also stated that Jheel was full of water at that time and number of persons were present in the park around Jheel when they reached there and that number of persons collected when they took accused persons to Jheel. He 14 of 27 15 admitted that except for Ex.PW-11/A , no other document had been prepared by the Investigating Officer .
32. PW-20, Insp. Laxmi Narayan, is the last Investigating Officer in the case. He stated that investigations of the case were handed over to him on 11.8.00 and that he had recorded the statement of witnesses during the course of investigations. On 20.8.00 he received copy of postmortem report handed over to him by SI Sharad and on 2.9.00 got a scaled site plan of the place of occurrence prepared by Insp. Devender Singh in presence of the complainant. The exhibits of the case were sent to FSL Malviya Nagar through SI Sharad on 20.10.00. After completing the investigations he prepared the charge sheet and filed the same in the Court.
33. PW 13, Insp. Devender Singh, is the draftsman and had inspected the site on 2.9.00. He stated that he visited the spot alongwith Insp. Laxmi Narayan and took rough notes and measurements, on the pointing out of Hem Chand, who met them at the spot. He proved the scaled site plan prepared by him as Ex.PW-13/A.
34. PW-14, Ct. Sombir, is the photographer who had visited the spot on 31.7.00 and taken photographs there. He proved the photographs as Ex.PW-14/1 to 14/6 and the negatives as Ex.PW-14/A1 to 14/A6.
35. PW-10 HC Raj Singh (inadvertently examined again as PW-23) was posted as MHC(M) on 20.10.00. He deposed that on said date on instructions of SHO he handed over 11 sealed parcels alongwith sample seal to SI Sharad Chand. 6 parcels were sealed with the seal of GPS, two had the seal of forensic medicine MAM College, one was sealed with the seal of SCN and one was sealed with the seal of RML. The parcels were handed over vide road certificate no. 141/21. After depositing the articles at Police Station SI Sharad Chand deposited the received copy of RC with PW-10A a copy of RC was shown to witness from judicial file and was exhibited as Ex.PW- 10/A.
36. When examined again as PW-23, HC Raj Singh, produced register no. 19. He stated that on 31.7.00 while 15 of 27 16 he was posted as MHC(M) at Police Station Prasad Nagar, Insp. Ramesh Chand had deposited 6 sealed parcels vide entry no. 1324. The photocopy of entry was proved as Ex.PW-23/A. Similarly on 1.8.00, 3 sealed parcels and on 2.8.00 one sealed parcel was deposited by Insp. Ramesh Chand vide entry no. 1325 and 1327 respectively. The photocopy of relevant entry was proved as Ex.PW-23/B & 23/C. On 18.8.00 and 18.9.00 one sealed parcel each was deposited by SI Umesh and SI Sharad Chand vide entry no. 1341 & 1366 respectively. The photocopies of relevant entries were exhibited as Ex.PW-23/D & 23/E. He stated that on 20.10.00 11 sealed cloth parcels were handed over to SI Sharad Chand for depositing at CFSL vide RC No. 143/21 and he had made endorsement regarding the same in column no. 6, 7 & 8 against S. No. 1324 with red pen. He proved the endorsement as Ex.PW-23/F at point encircled A. PW-23 also produced register no. 21 containing RC No. 143/21 dt. 20.10.00 and proved photocopy thereof as Ex.PW-23/G. During his cross examination he stated that he could not give any reason for delay of more than 3 months in sending the case property to CFSL. He also admitted that entries Ex.PW- 23/A to 23/E did not find mention of time of deposit in any of the columns nor the signatures of depositors were taken. He denied that entries Ex.PW-23/A to 23/E had been anti dated.
37. PW-17, HC Rajinder Singh, also claims to be posted as MHC(M) at Police Station Prasad Nagar on 31.7.00. He deposed that on that day Insp. Ramesh Chand deposited 5 sealed parcels sealed with the seal of GPS and one sealed with the seal of CMO RML Hospital. On 1.8.00 two sealed parcels were deposited and on 2.8.00 one sealed parcel was deposited by Insp. Ramesh. On 18.8.00 and on 18.9.00 one sealed parcel each was deposited by SI Ramesh and SI Sharad Chand. On 20.10.00 the case property was handed over by PW-17 to SI Sharad Chand vide RC No. 143/21 for being deposited at FSL Malviya Nagar. He proved the photocopy of relevant entries as Ex.PW-17/A. It appears that MHC(M) has been 16 of 27 17 examined thrice in the case. Firstly as PW-10, then as PW- 17 and lastly as PW-23. However, the name and belt number when he appeared as PW-17 is different then when he appeared as PW-10 & 23.
38. PW-18, ASI Kripal Dutt, was posted as in charge PCR on 043 PCR on 31.7.00. He stated that at about 8.15 pm his PCR Van was stationed at Kikarwala chowk and some persons brought one injured person named Vijay in Rickshaw. PW-18 removed injured Vijay to RML Hospital and intimated control Room at No. 100.
39. After prosecution completed its evidence, all the incriminating evidence was put to the accused persons. The accused termed the same to be incorrect. They did not lead any evidence in their defence.
40. Arguments have been addressed by Ld Addl. PP as well as Sh. R.D. Sharma, Ld Counsel for accused Kartar, Sh. S.K. Kashyap, Ld Counsel for accused Bharat Bhushan, Sh. Chander Maini Ld Counsel for accused Sanjay and Rinku and Sh. L.S. Saini, Ld Counsel for accused Vishnu.
41. Ld Addl. PP has contended that prosecution has successfully proved its case against the accused persons as PW-3 Hem Chand, who is an eye witness to the incident, has not only named and identified each of the accused but has also described the manner in which they had given beatings to Vijay and caused fatal injuries to him. She has further contended that despite the fact that accused Hem Chand turned hostile, during his cross examination by Ld Defence Counsels, the Court is to look into his statement made during his chief examination recorded on 26.07.02 as apparently the witness made subsequent statement under threats from the accused person. She further states that postmortem report corroborates the injuries and on these grounds she has prayed that all accused be convicted for offence U/S 302/34 IPC.
42. Ld Defence Counsels on the other hand have contended that prosecution has completely failed to prove its case against the accused persons. All the three eye 17 of 27 18 witnesses put forth by the prosecution failed to support the prosecution case and even if chief examination of PW-3 is considered, nothing which would be of any aid to prosecution case has come out in testimony of PW-3 which even otherwise is not supported by that of other witnesses. As far as recovery of knife at instance of accused Vishnu, Bharat Bhushan and Rinku is concerned, it is stated that none of the public witnesses, in whose presence recovery is stated to have been effected, have supported the prosecution case or identified the said knives and on this count also prosecution case would fail. They have prayed that accused persons be acquitted of charges U/S 302/34 IPC. Sh. Chander Maini Ld Counsel for accused Sanjay and Rinku has relied upon following judgments in support of his arguments.
(i) AIR 1979 SC 1408 Suraj Mal Vs. The State.
(ii) 1982 Cr.L.J. 1477 Dal Chand Vs. The State.
(iii) 1994 Cr.L.J. 1522 Vasudevan Viswambharan and Anr. Vs. State of Kerala.
43. I have heard Ld Addl. PP for the state as well as Ld Defence Counsels and also perused the record and case law cited before me carefully.
44. In the present case the prosecution story revolves round three eye witnesses namely Hem Chand, uncle of the deceased and Devender and Shekhar, friends of the deceased with whom he is stated to be present when accused persons apprehended him and started brutally assaulting him. The murderous assault was unleashed with broken Pepsi bottles, knives and dandas. Accused Rinku and his brother Sanjay wielded broken Pepsi bottles while Vishnu and Bharat Bhushan @ Bantoo had knives. The remaining accused, including Kartar, had Dandas in their hands.
45. As per prosecution case, accused Vishnu and Kartar were arrested on 1.8.00, upon identification of complainant Hem Chand, and one knife was got recovered by accused Vishnu which is claimed to have been used in commission of offence. Accused Bharat Bhushan was arrested on 18.8.00 when he surrendered before the Court 18 of 27 19 and one knife is stated to have been recovered at his instance from bushes behind Gurudwara in presence of PW Shekhar. Accused Rinku and Sanjay were last ones to be arrested and were arrested on 18.9.00 when they were produced before the Court, on issuance of production warrants, after having been arrested in some other case at Ghaziabad. One more knife is alleged to have been recovered at instance of accused Rinku from park adjacent to lake, in presence of PW Hem Raj. All the recovered knives are stated to have been used to inflict injuries on deceased Vijay. The other weapon of offence which was recovered was broken pieces of Pepsi bottles which were lifted from the site by the Investigating Officer on the night of 31.7.00/1.8.00 vide memo Ex.PW-1/B. The Danda(s) alleged to have been used in commission of offence were never recovered. We have to examine the testimony of these three material prosecution witnesses to see whether prosecution story inspires confidence and whether the testimony of the material public witnesses is supported by the testimony of other prosecution witnesses as well as material placed on record to lead to conclusion that only accused above named and none other was responsible for the murder of Vijay on the fateful day.
46. As far as PW-4 Devender and PW-5 Shekhar are concerned, they have completely failed to support the prosecution case. While PW-4 claimed that he had left one injured person in PCR Van and had gone home, PW-5 Shekhar claimed that he had gone to hospital after receiving telephone call about his friend having met with an accident. None of them state anything about PW Hem Raj being present with them at the spot or they all being at the spot together or any of them having intervened to save the deceased from the clutches of accused persons or having taken deceased to Sippy Nursing Home and later to RML Hospital or joining any investigations with the Investigating Officer. They have also failed to identify any of the accused persons or the case property.
47. PW Shekhar, in whose presence knife is alleged to have been recovered from possession of accused Bharat 19 of 27 20 Bhushan on 18.8.00 does not mention about any such investigation having taken place on 18.08.2000 nor do these two witnesses refer to disclosure statement of accused Vishnu and Kartar having been recorded in their presence on 1.8.00. No such suggestion was put in cross examination of these witnesses by Ld Addl. PP which could elicit the factum of PW-4 and PW-5 having joined investigations on 1.8.00 and 18.8.00.
48. Coming to PW Hem Chand, the statement of this witness was recorded in two sessions. His examination in chief was recorded on 26.7.02 and his cross examination was recorded on 18.9.02. When PW-3 deposed on 26.7.02, he supported prosecution case to some extent, however, with considerable variation from his complaint Ex.PW-3/A. He leveled allegations only against accused Kartar, Bantoo (accused Bharat Bhushan), Sanjay and Rinku. He denied that accused Vishnu had any role at all in the incident. According to him accused Bharat Bhushan @ Bantoo and Kartar were arrested on 1.8.00 and recovery of knife was effected at instance of both the accused. Even the Addl. PP was not satisfied with the statement given by the witness and a detailed cross examination of witness was conducted by Ld Addl. PP. During his cross examination the witness denied that his complaint Ex.PW-3/A had been read over to him. For some strange reason he was asked about accused Vishnu and Rinku only having been named in his statement Ex.PW-3/A whereas infact he had named accused Rinku, Sanjay, Vishnu and Kartar in the said statement. He denied that accused Vishnu was armed with knife or that accused Rinku and Sanjay had pieces of "Pepsi bottles" rather than "big Pepsi bottles" in their hands. He also denied that accused Kartar and Vishnu had been apprehended on 1.8.00 and stated that accused Kartar had been apprehended on some other day at the instance of secret informer by the police. He denied that he was present when Ex.PW-16/B and 16/C i.e. the disclosure statements of accused Kartar and Vishnu were recorded. He also denied that accused Vishnu had got recovered one knife on 2.8.00 in his presence or that any 20 of 27 21 of the memos, prepared subsequent to the recovery of the said knife, had been drawn up on his presence. He expressed his inability to identify knife alleged to have been recovered from possession of accused Vishnu.
49. This witness in his further cross examination stated that he had joined the investigations on the day accused Rinku got recovered one knife but did not elaborate that accused Sanjay was also actively participating in the said recovery proceedings. He also stated that knife had not been sealed in his presence and denied that Investigating Officer had affixed seal of SCN on the parcel of the knife in his presence.
50. When the knife, alleged to have been recovered at that time of accused Rinku, was shown to PW-3 in the Court he could not identify it. The factum of his having handed over a blood stained shirt and pant to Investigating Officer was also put to the witness and though PW-3 admitted having done so, he denied that the clothes had been kept in a parcel and sealed with the seal of GPS before being seized by the Investigating Officer.
51. During his cross examination by Ld Defence Counsels for accused the witness changed his version altogether and stated that he had neither witnessed the incident nor knew about the persons who had caused injuries to his nephew and that his nephew had already been removed from the spot by the police when he reached there on being informed by 3-4 persons on the day of incident. He claimed that he had deposed on 26.7.02 and identified the accused on being threatened by a policeman in uniform. He also admitted that no recovery had been effected in his presence from any of the accused. Although Ld Addl. PP has contended that PW-3 was under threat from the accused, the same is not reflected from the Court proceedings nor apparently any steps were taken either by the prosecution or the investigating officer, to provide any protection to the material witnesses including PW-3, to rule out any apprehension of threat, actual or implied, which the witnesses may have been having, which may have prevented them from disclosing complete truth before 21 of 27 22 the Court.
52. It is well known that one hardly comes across a witness whose testimony does not contain a grain of untruth or exaggerations and also embellishments and the truthfulness of the witness is to be tested on whole. In case of Bhe Ram Vs. State of Haryana, AIR 1980, SC 957, it has been held that "Falsus in uno falsus in omnibus" does not apply to criminal trials and it is the duty of the court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds." It is, however, also true that court would be slow in relying upon the testimony of a witness, who frequently changes his version, without corroboration from other material on record before drawing conclusion of guilt of the accused.
53. As already observed herein above the testimony of PW-3 does not get any support from that of the other two eye witnesses namely Devender and Shekhar. Further the presence of PW-3 at the spot is also put to doubt by the fact that PW-18 does not state anything about PW-3 accompanying the injured when he was brought to the PCR Van. PW-18 has stated that injured had been brought "by some persons" and that they immediately removed injured Vijay to RML Hospital. The MLC Ex.PW- 9/A, of the injured, also does not find mentioned of injured being accompanied by his relative Hem Chand rather it is mentioned that injured was brought by ASI Kripal Dutt, PW-19 with history of ''found road side with multiple injury. Thus, a certain doubt is created as to the presence of PW-3, at the spot on the day of the incident.
54. Coming to the recovery of three knives at the instance of accused Vishnu and Kartar, Bharat Bhushan and Rinku and Sanjay. As far as recovery of knife at instance of accused Vishnu and Kartar is concerned, PW-3 has denied that accused Vishnu had any role in the incident at all. The recovery of knife on 1.8.00 has been attributed to accused Bharat Bhushan and accused Kartar is stated to have been arrested on some other date. This is coupled with the fact that PW-24 Insp. Ramesh Chander, 22 of 27 23 who was in charge of the investigations at that time, did not scribe any of the documents prepared on 1.8.00 and 2.8.00 and stated that same were prepared by PW-21 while PW-21 stated that he had not joined any investigations with the Investigating Officer after 31.7.00. It is noteworthy that PW-21 SI Ganesh Prasad in his testimony gave a sketchy account of having joined investigations with the Investigating Officer on 31.7.00 and was declared hostile by Ld Addl. PP and cross examined at length wherein he responded to leading questions put to him. From cross examination of PW-21 by Ld Counsel for accused Bharat Bhushan it has been brought out that the sketch of knife, alleged to have been recovered at instance of accused Vishnu on 2.8.00 was prepared by PW-21. PW- 21 in response to specific question put by Ld Defence Counsel stated that the sketch had been prepared at Police Station by the Inspector with his assistance. In these circumstances, the recovery of knife Ex.P-1A at instance of accused Vishnu is certainly put to doubt. Certainly the question of tampering with the knife cannot be ruled out, since it was apparently not sealed prior its sketch being prepared at police station.
55. Coming to recovery of knife Ex.P-6, at instance of accused Bharat Bhushan on 18.8.00, it is seen that the knife was recovered by SI Umesh, to whom the investigations appear to have been entrusted for 18.8.00 only. The PW-5 Shekhar in whose presence the said recovery was effected has not stated anything about the recovery of the knife. PW-3, on the other hand, claims that accused Bharat Bhushan @ Bantoo was arrested on 1.8.00 and knife Ex.P-1A was recovered from his possession. Again it has been brought out from testimony of PW-19 SI Umesh, that most of the writing work, during investigation carried out on 18.08.2000 had been done by the Constable accompanying him. More particularly Ex.PW-19/A, the disclosure statement of accused Bharat Bhushan, PW-19/D, pointing out memo prepared at the instance of accused Bharat Bhushan and PW-19/G, statement of PW Shekhar were in hand writing of Ct.
23 of 27 24 Prahlad. Further the sketch of the knife was in variance with the actual knife produced and exhibited as Ex.P-6. While in sketch Ex.PW-19/E, the knife was shown to be having 6 circles/flowers on its handle, the knife actually had 10 circles/flowers on one side and 11 on the other. Moreover, as per PW-19 the seal after use was handed over by PW-19 to Ct. Prahlad rather than public witness PW Shekhar. There is no mention when Ct. Prahlad returned the seal to the Investigating Officer. Even otherwise Ct. Prahlad has not been examined to testify about recovery alleged to have been effected from accused Bharat Bhushan on 18.8.00 and thus testimony of PW-19 is not corroborated by any other witness examined by the prosecution. There is considerable doubt whether any knife was recovered from accused Bharat Bhushan and if so whether it was on 1.08.00 as claimed by PW-3 or on 18.08.2000 as stated by PW-19 and whether knife produced before Court in same as that alleged to have been recovered at instance of accused Bharat Bhushan and question of tampering with knife cannot be ruled out.
56. Lastly coming to recovery of knife from accused Rinku and Sanjay again the recovery of Ex.P-4 is firstly admitted and then denied by PW-3, complainant, in whose presence recovery is alleged to have been effected. The recovery proceedings were conducted by PW-16 SI Sharad Chander who was assigned the investigations of the case on 18.09.00. At that time also Inspector Laxmi Narain was the actual Investigating Officer . Despite recovery having been effected from a public place i.e. park adjacent to lake, no public person was joined in investigations. PW-16 stated that knife was recovered hidden beneath the earth from park adjacent to lake while PW-11, who was accompanying PW-16 has stated that knife was taken out from under the mud of the Jheel. During his cross examination, PW-11 changed the place of recovery of knife by clarifying that it was lying behind bushes. He also stated that a number of public persons had collected when they had reached the Jheel and Ct. Kashi Ram was also accompanying them and that the seal after use was 24 of 27 25 handed over to Ct. Kashi Ram. PW-16, on the other hand, had stated that no public person were present at the spot nor has he stated to whom he had handed over the seal after use. Again it is surprising that seal was not handed over to the only public witness accompanying the police party. PW Ct. Kashi Ram has not been examined and though one PW Kashi Nath was examined but he had only joined investigations with the Investigating Officer on 31.7.00. Moreover, PW-3 Hem Chand in his examination in chief recorded on 26.07.02 and subsequent cross examination by Ld Addl. PP stated that accused Rinku and Sanjay were apprehended after about one month and that accused Rinku got recovered one knife from behind the Gurdwara after removing the earth. He denied that knife was sealed in his presence in a pulanda and he also failed to identify the said knife when shown to him. Thus, PW-3 does not state anything about recovery having been effected from park adjacent to lake/jheel as stated by PW- 16 and PW-11. Thus, recovery of knife Ex.P-4, if any, at instance of accused Rinku in presence of accused Sanjay on 18.9.00 is considerably doubtful. The place from where the knife is alleged to have been recovered has been stated differently by the witnesses to the recovery of the knife. Either the knife was not recovered in the manner put forth by the prosecution or the witnesses put forth by the prosecution were not present at the time of alleged recovery and even in this case the question of tampering with the knife cannot be ruled out.
57. From the detailed discussion herein above it is cleared that prosecution has failed to establish recovery of alleged weapons of offence namely knives Ex.P-1A, Ex.P-4 and P-6 at instance of accused persons. In this scenario, when we consider the testimony of PW-3 recorded on 26.7.02, then we see that the entire prosecution case is demolished by this one testimony, which Ld Addl. PP has urged be accepted as correct version of PW-3 by ignoring his statement which was recorded on 18.9.02 when he retracted from his earlier statement to absolve the accused persons of any involvement in the incident dated 31.7.00 25 of 27 26 in which his nephew Vijay has been murdered.
58. In case of JT 2006 (12) SC 76 titled as Bhimapa Chandappa Hosamani and Others Vs. State of Karnataka, Hon'ble Supreme Court has held:
"This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."
59. Even though the judgment was pertaining to case where testimony of sole eye witness was under
consideration, the principles laid down therein while appreciating the testimony of a sole eye witness to the incident would be fully applicable in the facts and circumstances of the case since PW-3 remained the sole eye witness on whose testimony prosecution sought to prove it case against the accused persons. The testimony of PW-3 is full of inconsistencies and contradictions and is not of such sterling quality that the Court can safely rely upon it.
60. The judgment cited by Ld Counsel for accused Sanjay and Rinku as reported in AIR 1979 SC 1408 also reflects the above noted principle of appreciation of evidence. In this judgment it has been held that:
26 of 27 27 "Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses."
61. In the present case not only is the testimony of PW-3 unreliable, even after detailed consideration of testimony of PW-3 as well as the other evidence produced on record by the prosecution, the prosecution case does not inspire much confidence. The care and caution which ought to have been taken by the investigating agency in carrying out investigations in case involving heinous offence have been totally over looked. The recovery of alleged weapons of offence has been carried out in a lackadaisical manner without making efforts to ensure that recovery of the said weapons ultimately leads to conclusion of guilt of the persons alleged to have committed the gruesome murder of the deceased.
62. The conclusion of forgoing discussion is that in the present case prosecution has failed to prove its case U/S 302/34 IPC against the accused persons beyond reasonable doubt and according accused Vishnu @ Bhisham, Kartar, Bharat Bhushan @ Bantoo, Sanjay and Rinku @ Raju are acquitted of offences U/S 302/34 IPC.
63. Sh. Chander Maini, Ld Counsel has relied upon judgments in 1994 Cr.L.J 1522 ; and 1982 Cr. L. J. However the said judgments are not applicable in the facts and circumstances of the present case and are not been discussed in details herein.
Announced in the Open Court (ILLA RAWAT)
On 24th Day of January,2009 ASJ (FTC) CENTRAL:DELHI
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