Delhi District Court
State vs 1. Ravinder on 23 July, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.04/2013
Unique Case ID No.231/2016
FIR No. 303/2012
U/S: 302/34 IPC
P.S: Gazipur
State Versus 1. Ravinder
S/o. Soney Lal
R/o. Vill. Kheriyan Nagar,
PS. Jaithra Distt. Etah, U.P.
2. Mahesh
S/o. Soney Lal
R/o. Vill. Kheriyan Nagar,
PS. Jaithra Distt. Etah, U.P.
3. Parveen Gupta
S/o. Kali Charan
R/o. RC139, Dharam Pal Ka Makan,
Vandana Enclave, Khora Colony,
U.P.
FIR No.303/2012, PS. Gazipur Page 1 of 26 St. Vs. Ravinder etc.
Date of Institution : 11.01.2013
Date of Arguments : 02.06.2018
Date of Judgment : 23.07.2018
J U D G M E N T
Case of Prosecution
1.Criminal law was set into motion on 17.08.2012 at 5.50 am when Ct. Karampal No. 2944/E informed telephonically at PS Gazipur that a dead body is lying in paper market park, near Machan. Said information was recorded vide DD No.7A and was assigned to ASI Deshraj, who alongwith Ct. Satish reached at the spot and found a dead body of male aged about 35 years wearing pink colour checkdar shirt, light brown colour pant, white vest and orange colour underwear lying there. On inspection of the body, injuries were found on the left side head and ear and large quantity of blood was also found lying near the body. No eye witness of the incident met there. Inspector Sunil Kumar called the Crime Team and got the spot inspected. Photographs were taken and dead body was got preserved in the mortuary. As there was a tag on the wearing shirt of the dead body "Friend Tailor Sirsaganj" therefore, a team was sent to Sirsaganj, U.P and hue and cry notice were got published in local newspapers of Firozabad U.P and wireless message were also flashed on all FIR No.303/2012, PS. Gazipur Page 2 of 26 St. Vs. Ravinder etc. India and all Delhi basis. On 23.08.2012, police of Sirsaganj informed the PS Gazipur, Delhi after seeing the photograph of deceased in local newspaper that same is of Naresh S/o. Gopi Ram and also gave the address of Anita W/o. Anand Thakur and her mobile number. Sister and brother in law of deceased identified the dead body in the mortuary of LBS hospital. Sh. Anand Thakur, brother inlaw of the deceased got recorded his statement. The gist of the statement of Anand Thakur is that " he alongwith his family resided in room no.6 of the house of Dharampal at Ground Floor where accused Ravinder alongwith his family, brother Mahesh & friend Nanhe was also residing at second floor. There used to be quarrel between him and Ravinder, Mahesh & Nanhe since son of Ravinder used to throw something from his floor to ground floor. On 10.08.2012 his brother inlaw (sala) Naresh Chand also came to his house from village and started residing there and thereafter also quarrel between them kept taking place off and on. On 16.08.2012 at about 4 pm, when he alongwith his brother inlaw (sala) Naresh was standing in front of his house, an altercation took place between him and Ravinder, his brother Mahesh & friend Nanhe and Praveen, who runs a shop of gas in front of their house, also joined and asked Ravinder to finish them since there are frequent quarrels between them. Matter was then pacified by the public persons and when Ravinder started to leave from there, Naresh hit Ravinder from behind with a shoe and thereafter, again a quarrel ensued between them, which was also FIR No.303/2012, PS. Gazipur Page 3 of 26 St. Vs. Ravinder etc. pacified by the public. In the evening at about 8 pm, when he was inside his house and his brother inlaw Naresh was standing outside near Tanker, Ravinder, Mahesh, Nanhe & Praveen came to Naresh and started talking with Naresh. Praveen also called him to accompany them with Naresh. His wife Anita asked him to see where the Naresh is and at about 9.30 pm, he went near Theka, near Rajbala Hospital, where his brother inlaw Naresh was standing with Ravinder, Mahesh, Nanhe and Praveen. When he asked Naresh to accompany him, Ravinder asked him to leave what had happened and have liquor with them. Ravinder brought liquor from shop. Praveen asked Ravinder "Aaj Mauka Achchha hai Kar Do Kaam" and left from there. He consumed liquor with his brother inlaw Naresh, Ravinder, his brother Nanhe and friend Praveen while sitting in a park at Paper Market. After consuming liquor, he alongwith Naresh started to leave suddenly Ravinder took a brick from the park and hit the same on the head of Naresh due to which Naresh fell down. Nanhe caught hold the hands of Naresh and Ravinder 23 times hit on the face of Naresh with brick and Mahesh caught hold of him. When he somehow freed himself and started running from there, accused persons said from behind " kaha jata hai ab teri bari hai". He got afraid and hid himself there. At about 1212.30 night he went to his house and narrated the entire incident to his wife." Except accused Nanhe, other accused were arrested. Further investigation was FIR No.303/2012, PS. Gazipur Page 4 of 26 St. Vs. Ravinder etc. carried out and after completion of investigation, chargesheet was filed before the Court.
2. On appearance, in compliance of section 207 IPC, copies were supplied to accused persons, and as offence punishable u/s. 302 IPC is triable by the Court of Sessions, present case was committed to Sessions Court.
Charge framed against the accused
3. Charge u/s. 302/34 IPC was framed against all the accused to which, they pleaded not guilty and claimed trial.
Witnesses examined
4. In support of its case, prosecution examined 23 witnesses. The brief summary of the deposition of Prosecution Witnesses is as under:
5. PW1 is HC Singh Raj Bhati, who was posted as duty officer on 17.08.2012 at PS Gazipur from 12 mid night to 8 am. He recorded DD FIR No.303/2012, PS. Gazipur Page 5 of 26 St. Vs. Ravinder etc. No.7A Ex.PW1/A and also registered present case FIR Ex.PW1/B. He proved his endorsement on the rukka as Ex.PW1/C.
6. PW2 is SI Amardeep Singh, to whom investigation was entrusted on 28.08.2012. He got recorded statement of witness Anita u/s. 164 Cr.P.C. On 30.08.2012, he again joined the investigation alongwith Inspector Sunil Kumar and in his presence accused Ravinder, Mahesh and Praveen Gupta were arrested vide memos Ex.PW2/A to C. He is also the witness of recovery of blood stained clothes of accused Ravinder and Mahesh, which they were allegedly wearing at the time of incident and proved the seizure memos as Ex.PW2/J & K. In his crossexamination, he confirmed that accused persons were not wearing clothes Ex.P6 & Ex.P7 at the time of their arrest.
7. PW3 is Dr. P.N.Acharya, who conducted postmortem on the body of Naresh Chand S/o. Gopi Ram and proved his report as Ex.PW3/A. As per his opinion, the cause of death is croniocerbral damage resulting from head injury. All the injuries were antemortem in nature caused by blunt and hard objects. Injuries on head were opined sufficient to cause death in ordinary course of nature.
In his crossexamination, he deposed that normally an unknown dead body is to be preserved for three days for the purpose of identification FIR No.303/2012, PS. Gazipur Page 6 of 26 St. Vs. Ravinder etc. and he cannot give any reason as to why the dead body was preserved in this case for eight days. To a specific question he deposed that it is not possible to sustain such type of injuries as mentioned in the postmortem report Ex.PW3/A due to fall from the height.
8. PW4 is ASI Kuldeep Singh, who alongwith Inspector R.D.Singh and HC Mahak Singh was present at mortuary of LBS hospital for conducting the postmortem on the dead body. He deposed that after postmortem, doctor handed over some exhibits to Inspector R.D.Singh, which were seized vide memo Ex.PW4/C.
9. PW5 is Inspector Mukesh Kumar, draftsman, who prepared scaled site plan on the pointing out of IO and proved the same as Ex.PW5/A.
10. PW6 is Sh. Anand Thakur, brother inlaw of deceased Naresh. He deposed that accused Ravinder and Mahesh whose names he came to know later on used to reside at the second floor of the house of Dharampal. As per PW6, on 16.08.2012, he alongwith his brother inlaw Naresh went to Gazipur, PhaseIII at a liquor shop to take drink and from there they bought a quarter bottle of liquor. Thereafter, they went to a meat cart standing near the liquor shop, where accused Ravinder and Mahesh FIR No.303/2012, PS. Gazipur Page 7 of 26 St. Vs. Ravinder etc. alongwith one Nanhe were also standing. The rehdy vendor was abusing accused Ravinder and Mahesh and on his persuasion a compromise took place between the rehdy vendor and the accused persons. Thereupon, both accused offered them to drink but they refused as they were already having a quarter bottle of liquor with them. PW6 further deposed that on the way to their house, there is a utensils shop and both the accused Ravinder and Mahesh alongwith Nanhe and other persons met them and again offered liquor to Naresh, thereupon, he took liquor with accused persons. He snubbed Naresh for taking liquor with accused and told him "tumne Balmiki ke saath drink kar liya" on which Naresh gave beatings to Nanhe with slipper. Public persons gathered there and separated Naresh from accused persons and then they went to their house. As per PW6 he went inside the house but Naresh remained standing outside near a water tanker. Accused Ravinder, Mahesh, Nanhe and Praveen also came at the water tanker and someone called his name from outside and they asked him and Naresh to accompany them. He refused to accompany them and also tried to stop Naresh from accompanying the accused but he went away alongwith accused Ravinder, Mahesh, Nanhe and Praveen. PW6 further deposed that after about ½ hour he went in search of Naresh at liquor shop but he was not present there and someone told him that Naresh alongwith 34 persons had gone to Gazipur Paper Market after taking liquor. He went towards Gazipur Paper Market and when he reached near the park, he saw FIR No.303/2012, PS. Gazipur Page 8 of 26 St. Vs. Ravinder etc. that accused Mahesh had caught Naresh and accused Ravinder hit a brick on the head of Naresh, due to which he fell down. Praveen was exhorting his associates towards him by saying 'PakdoPakdo' and he then ran away from there. Nanhe chased him till the boundary of the park. He returned back to his house at about 1212.30 am and narrated the incident to his wife and due to fear he did not come out of his house that night. PW6 deposed that next morning he told his landlord about the incident, who informed him that Mahesh and Nanhe came in the night at house at 1111.30 pm and that they had gone to village after putting lock on their room. He asked him to give their identity proof but he refused. PW6 further deposed that on 17.08.2012, he went to Police Post Ghaziabad and lodged missing report of Naresh and also gave the photograph of Naresh to police. After 34 days, he received a telephone call from his brother inlaw Mantu, who informed him that Sirsaganj police has informed about discovery of a body having label of Sirsaganj tailor with a locket of Bhole Baba and he received a telephone call from PS Gazipur. PW6 also proved his statement recorded u/s. 164 Cr.P.C as Ex.PW6/A. In his crossexamination conducted by Ld. Addl. PP for State, he denied that accused Praveen Gupta as pointed out by Ld.Addl. PP is the same person who met them near liquor shop and who later on came outside his house alongwith Ravinder, Mahesh and Nanhe. He denied the FIR No.303/2012, PS. Gazipur Page 9 of 26 St. Vs. Ravinder etc. suggestion that he had identified the accused persons as assailants or that accused were arrested by the police in his presence. In his crossexamination by Ld. Defence Counsel, PW6 deposed that he was not on visiting terms to the house of accused Mahesh and Ravinder and never had any quarrel with them prior to the incident. He denied the suggestion that he had previous enmity with Ravinder and Mahesh and for this reason he falsely implicated them in the present case.
11. PW7 is Smt. Anita Thakur, sister of the deceased, who has deposed that on 16.08.2012 at about 8 pm, she and her son were sitting outside their house and in the meanwhile her husband came and went inside the room. Her brother Naresh also came and he was standing near a tanker outside the house. PW7 deposed that her husband told her that a quarrel had taken place between her brother and someone and she heard the noise of someone calling 'AnandAnand' from outside. She identified accused Ravinder and Mahesh, who were standing near her brother. PW7 deposed that her husband also wanted to accompany Naresh but she stopped him and when her brother did not return, at about 9/9.30 pm, she sent her husband in search of Naresh. PW7 further deposed that at about 12/12.30 in the night her husband came back perplexed and told her that those four persons have killed her brother and now they want to kill him also. As per PW7 they got afraid and did not come out of the house due to FIR No.303/2012, PS. Gazipur Page 10 of 26 St. Vs. Ravinder etc. fear and next morning they went to PS and made the complaint. PW7 was also crossexamined by Ld. Addl. PP for the State and to a specific question she deposed that she does not know that accused Praveen Gupta was also one of the tenants in the house and denied the suggestion that accused Praveen Gupta was alongwith the four persons, who came at her house and took her brother Naresh with them.
In her crossexamination by Ld. Defence Counsel, PW7 confirmed that her husband and brother were habitual drunker. She further deposed that they made complaint about missing of her brother in Police Station near Noida and they vacated the said premises after 1012 days of the incident. She further deposed that she does not remember whether she had seen accused persons prior to the said date.
12. PW8 is Ct. Karam Pal, who was on patrolling duty and firstly informed the duty officer about a person lying in injured condition near Machan Paper Market, Gazipur, Delhi. PW8 deposed that ASI Deshraj alongwith Ct. Satish came at the spot and prepared the rukka. He took the rukka and got the case FIR registered and when he returned at the spot, Inspector Sunil Kumar met him and he handed over him the copy of FIR to him.
FIR No.303/2012, PS. Gazipur Page 11 of 26 St. Vs. Ravinder etc. In his crossexamination, PW8 deposed that there was no boundary wall of the park and said park was not used by the morning walkers.
13. PW9 is SI Deshraj Singh, who on receipt of DD No.7A alongwith Ct. Satish reached at the spot and found that a male body was lying there. PW9 deposed that a brick in the pool of blood and one empty quarter bottle of liquor were also lying near the body. PW9 deposed that body was wearing a pink colour checkdar shirt having a sticker on the collar on which friend tailor Sirsaganj was mentioned. PW9 deposed that Inspector Sunil Kumar and crime team also reached at the spot and lifted exhibits from the spot. He proved various seizure memos prepares in his presence as Ex.PW9/C to G. In his crossexamination PW9 deposed that the place of occurrence is a park and there was a boundary wall parallel to the road.
14. PW10 is Sh. Dharmender, real brother of the deceased, who identified the dead body vide memo Ex.PW4/A and after postmortem dead body was handed over to him vide memo Ex.PW10/A.
15. PW11 is HC Satender Singh, who was posted as a photographer with mobile crime team, East District and as per direction of the IO, he FIR No.303/2012, PS. Gazipur Page 12 of 26 St. Vs. Ravinder etc. took photographs of the scene of crime and dead body. He proved the photographs as Ex.PW11/A1 to A9 and their negatives as Ex.PW11/A10 to A18.
16. PW12 is Sh. Anil, brother inlaw of deceased, who also identified the dead body of Naresh vide memo Ex.PW4/A.
17. PW13 is Dr. S.B.Jangpangi, CMO LBS Hospital, who proved the MLC of deceased as Ex.PW13/A and deposed that deceased was declared brought dead by Dr. Anshuman Gupta.
18. PW14 is Sh. Naresh Kumar, Sr. Scientific Officer, Biology, FSL Rohini, who conducted biological and DNA examination of nine exhibits deposited in FSL and proved his reports as Ex.PW14/A, Ex.PW14/B and Ex.PW14/D.
19. PW15 is Ct. Satish Kumar, who accompanied ASI Deshraj to the spot after receiving DD No. 7A. He deposed on the same lines as deposed by PW9 SI Deshraj.
In his crossexamination he confirmed that PS Gazipur is at a distance of about 100 meters from the park and generally ACP and SHO used to patrol in the area.
FIR No.303/2012, PS. Gazipur Page 13 of 26 St. Vs. Ravinder etc.
20. PW16 is SI Kaushal Ganguli, Incharge Mobile Crime Team, who alongwith finger print proficient Ct. Narender and photographer Ct. Satender reached at the spot. PW16 proved his report as Ex.PW16/A.
21. PW17 is Sh. S.P.S. Laler, Sr. Civil Judgecum rent controller, who recorded the statement of Anita Thakur u/s. 164 Cr.P.C and proved the same as Ex.PW17/A.
22. PW18 is Sh. Sanjeev Kumar, Ld. ASJ/SE, who also recorded the statement of Anand Thakur, u/s. 164 Cr.P.C and proved the same as Ex.PW6/A.
23. PW19 is Ct. Dinesh, who deposed that on 19.10.2012 MHC(M) gave him sealed pullandas for depositing at FSL vide RC No. 102/21/12 and after depositing the exhibits, he handed over the original receipt to MHC(M).
24. PW20 is S.S.I Salim Ahmed, District Mathura, U.P, who deposed that on 23.08.2012, he was posted as SO, PS Sirsaganj and on that day one female namely Anita alongwith her husband came in PS Sirsaganj and they enquired about one Naresh Chand and he told them to contact PS Gazipur in this regard.
FIR No.303/2012, PS. Gazipur Page 14 of 26 St. Vs. Ravinder etc. In his crossexamination he deposed that one arrival entry of the aforesaid persons was lodged in PS Sirsaganj but he does not remember the number of said entry.
25. PW21 is ASI Mahak Singh, who deposed that on the instructions of the SHO on 19.08.2012 he went to Sirsaganj, U.P, alongwith one logo of friend tailor Sirsaganj, which was found on the shirt of the deceased and he with the assistance of local police officials traced the said tailor. He deposed that he gave the photograph and other details of the dead body to a local news channel and to a local newspaper for publishing the news about that person and later on he came to know that dead body was identified. He identified hue and cry notice as Ex.PW21/A and three logos of friend tailor Sirsaganj as Ex.PW21/P1 (colly.).
26. PW22 is Inspector Sunil Kumar, Investigation Officer. He deposed regarding the steps taken during investigation and proved various memos prepared by him. He also deposed about the blood stained clothes recovered at the instance of accused Mahesh and Ravinder, which they were wearing at the time of incident.
In his crossexamination, he deposed that on 23.08.2012, Anita Thakur and Anand Thakur met him first time. He deposed that during investigation he did not record statement of any neighbour to the effect that FIR No.303/2012, PS. Gazipur Page 15 of 26 St. Vs. Ravinder etc. from 10.08.2012 to 16.08.2012 deceased stayed with Anand Thakur and his wife. To a specific question he deposed that he did not make any enquiry from the wine and beer shop MVIII to know if accused had purchased any liquor from the wine shop or not and no CCTV footage was procured from the said shop. He further confirmed that no public person joined the investigation in recovery proceedings. He further confirmed that during investigation on 23.08.2012 Anand Thakur and Anita Thakur did not produce any application or complaint made before any authority or police about the murder of Naresh being committed by the accused persons on 16.08.2012.
27. PW23 is retired Inspector Ramdhan Singh, who also alongwith IO/SHO Inspector Anil Kumar and other staff reached at the spot. He also went to the mortuary of LBS hospital alongwith other staff. He further deposed that during investigation, he alongwith Anita went to Tihar Jail for the purpose of TIP proceedings but accused persons refused to participate in the TIP proceedings and proved the same as Ex.PW23/D to F. Statement and Defence of accused
28. Statement of accused persons was recorded u/s. 313 Cr.P.C., wherein they denied the case of prosecution and claimed themselves innocent.
FIR No.303/2012, PS. Gazipur Page 16 of 26 St. Vs. Ravinder etc. Arguments and conclusion
29. Arguments have been addressed by Sh. K.P.Singh, Ld. Addl. PP for the State as also by Sh. Swarn Singh, Ld. Defence counsel for the accused Parveen Gupta and Sh. Gautam Pal, Ld. Amicus Curiae for accused Ravinder & Mahesh.
30. Ld. Addl. PP for the State argued that PW6 Anand Thakur, eye witness of the incident and PW7 Anita Thakur, who is witness of last seen, both have proved the case of prosecution beyond reasonable doubt. It has been submitted that due to fear they could not inform the police just after the incident. Ld. Addl. PP for State further argued that blood group found on the recovered clothes of accused Ravinder & Mahesh matched with the blood group of deceased, which is a strong incriminating evidence against the accused persons.
31. Per contra, Ld. Defence Counsel for accused Ravinder & Mahesh argued that although PW6 Anand Thakur claimed himself to be the eye witness of incident occurred on 16.08.2012 but he did not make any complaint till 23.08.2012. Ld. Defence Counsel further argued that complainant as well as accused Ravinder & Mahesh were residing in the same house as a tenant but their landlord was not examined by the FIR No.303/2012, PS. Gazipur Page 17 of 26 St. Vs. Ravinder etc. prosecution. Ld. Defence Counsel vehemently argued that as per witness Anand Thakur, accused Ravinder, Mahesh & Praveen Gupta were arrested on 25.08.2012 but police has shown their arrest on 30.08.2012, which is sufficient to demolish the prosecution story. Ld. Defence Counsel for accused Praveen Gupta argued that complainant PW6 Anand Thakur as well his wife did not identify accused Praveen Gupta and there is no evidence against accused Praveen Gupta.
32. It is a settled law that criminal jurisprudence begins with presumption that unless otherwise proved the person facing the trial would be deemed to be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution if fails to connect the act of the accused with ultimate crime and where the material links constituting the chain of circumstantial evidence are found missing then the benefit of the same goes in favour of the accused.
33. PW6 Anand Thakur, brother inlaw of the deceased claims himself to be the eye witness of the incident. PW7 Anita Thakur wife of PW6 Anand Thakur and sister of deceased claims herself to be the witness of last seen. As per PW6 Anand Thakur, on 16.08.2012 he alongwith his brother inlaw Naresh went to Gazipur PhaseIII at a liquor shop to take drink, from there they reached at a meat cart where accused Ravinder, FIR No.303/2012, PS. Gazipur Page 18 of 26 St. Vs. Ravinder etc. Mahesh and one Nanhe met them and rehdy vendor was abusing accused Ravinder & Mahesh. They intervened and settled the matter, on which both the accused offered them liquor but since they were having a quarter bottle of liquor with them, they refused them and after taking liquor they proceeded back to their house. As per PW6 on the way to their house there is a shop of utensils, where accused Ravinder, Mahesh, Nanhe and Praveen Gupta met them and again offered liquor to Naresh, and he took liquor with them. He snubbed Naresh for taking liquor with accused persons and told him that 'tumne balmiki ke sath drink kar li', whereupon Naresh beat Nanhe with slipper. Public persons got Naresh separated from accused persons and they proceeded back to their house. He straightway went inside his house while Naresh remained standing outside near a water tanker and all the accused came there & called him by name. He refused to accompany them but Naresh went away with accused persons. After about ½ hour, he went in search of Naresh and came to know that he had gone to Gazipur Paper Market after taking liquor. When he reached there, he saw that accused Mahesh had caught Naresh & accused Ravinder hit a brick on the head of Naresh, due to which he fell down. Accused Praveen was exhorting his associates towards him by saying ''maropakdo" on which he ran way from there and Nanhe chased him till the boundary of the park. He came back to his house and narrated the incident to his wife and due to fear he did not come out from his house that night.
FIR No.303/2012, PS. Gazipur Page 19 of 26 St. Vs. Ravinder etc.
34. It is admitted by PW6 Anand Thakur that accused Ravinder and Mahesh were residing at the second floor of the house of Dharampal while he was residing at ground floor as a tenant. Thus, both the accused as well as complainant were residing as tenants in the same house. Although, PW6 claimed that he witnessed the entire incident and even one of the accused also chased him till the boundary of the park where incident occurred but on 17.08.2012 he lodged missing report of his brother inlaw Naresh at PS Ghaziabad. This fact is also admitted by PW7 Smt. Anita Thakur that they made complaint on the very next day of the incident and they did not do anything on that night as they were under fear. A copy of missing report is also placed on record as Mark PW7/DA. The admission of PW6 Anand Thakur and PW7 Anita Thakur that they lodged missing report casts a serious doubt on their testimonies that PW6 Anand Thakur had actually seen the incident on 16.08.2012. There is no explanation on record why a missing report regarding his brother inlaw Naresh was lodged by Anand Thakur at PS Ghaziabad on next day of the incident, when he claimed that he saw accused persons committing the incident and names of accused persons were very well known to him.
35. Both these witnesses have not identified accused Praveen Gupta. They were crossexamined by Ld. Addl. PP for the State on the point of identity of accused Praveen Gupta but they denied the suggestion that FIR No.303/2012, PS. Gazipur Page 20 of 26 St. Vs. Ravinder etc. accused Praveen Gupta, present in the court, is the same person who met PW6 Anand Thakur near liquor shop and later on came outside his house alongwith other coaccused and PW7 Anita Thakur further denied that accused Praveen Gupta was amongst the four persons, who came at her house and took her brother Naresh with them. Although, PW6 Anand Thakur did not identify accused Praveen Gupta but in his cross examination by Ld. Addl. PP for the State he admitted that the utensil shop in front of which Ravinder, Mahesh & Nanhe met them is run by the brother of accused Praveen Gupta. Further, in his statement u/s. 164 Cr.P.C, i.e Ex.PW6/A, PW6 Anand Thakur stated that Praveen, Ravinder and Nanhe reached at the shop of brother of the Praveen before them and when they were passing in front of the shop of brother of Praveen, he called them. These two admissions by PW6 Anand Thakur creates a dent on the veracity of his statement. Apart from this, there are major contradictions in the testimony of PW6 Anand Thakur regarding the main incident, which he allegedly witnessed in the park. As per PW6 Anand Thakur when he reached near the park Gazipur Paper Market, he saw that accused Mahesh had caught Naresh; accused Ravinder hit a brick on the head of Naresh, due to which he fell down; accused Praveen was exhorting his associates towards him by saying 'maropakdo' and Nanhe chased him till the boundary of the park but in his statement u/s. 164 Cr.P.C Ex.PW6/A he stated that Nanhe caught hold the hands of Naresh and accused Mahesh FIR No.303/2012, PS. Gazipur Page 21 of 26 St. Vs. Ravinder etc. chased him. He was confronted with his statement Ex.PW6/A by Ld. Addl. PP for the State but he denied having made such statement. In this state of affairs when witness has even denied certain portion of his statement given before Magistrate u/s. 164 Cr.P.C, it is difficult to rely upon his testimony. Moreover, PW6 has nowhere deposed before the court that he went to Sirsaganj Police to enquire about his brother inlaw and deposed that he received a telephone call from his brother inlaw Mantu, who informed him about recovery of a dead body having label of Tailor Sirsaganj with locket of Bhole Baba and then he alongwith his wife went to PS Gazipur, however, PW20 SSI Salim Ahmed who was posted as SO PS Sirsaganj deposed that on 23.08.2012 one female namely Anita alongwith her husband came at PS Sirsaganj and they enquired about one Naresh on which he told them to contact PS Gazipur in this regard. Hon'ble Supreme Court in 2012 (2) RCR (Criminal) 231, Sampath Kumar Vs Inspector of Police Krishangiri referring to Vadivelu Thevar Vs. State of Madras AIR 1957SC614, spoke of three category of witnesses: those that are wholly reliable, those that are wholly unreliable and who are neither wholly reliable nor wholly unreliable. In the case of the first category the courts have no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of single witness if it is found to be fully reliable. In the second category also there is no difficulty in arriving at an appropriate conclusion FIR No.303/2012, PS. Gazipur Page 22 of 26 St. Vs. Ravinder etc. for there is no question of placing any reliance upon a deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial. The Hon'ble Supreme Court thus held that the testimony of a witness who is not wholly reliable or wholly unreliable, can be relied if it is corroborated on material aspects. In view of the aforesaid inherent improbabilities in the statement of PW6 Anand Thakur and the contradictions and omissions made in his statement, he appears to be a witness of third category, who is neither wholly reliable nor wholly unreliable and no conviction can be based on the statement of such witness.
36. There are several major lacunae in the investigation conducted by IO/Inspector Sunil Kumar. It is admitted case of the prosecution that complainant as well as accused Mahesh and Ravinder were residing as tenants in the house of one Dharampal and as per PW6 Anand Thakur next morning after the incident he narrated the incident to his landlord Dharampal, who informed him that Mahesh and Nanhe came in the night at house at 11/11.30 pm and that they had gone to village after putting lock on their room, however, PW6 Anand Thakur in his statement u/s. 161 Cr.P.C recorded on 23.08.2012 stated that after the incident due to fear he FIR No.303/2012, PS. Gazipur Page 23 of 26 St. Vs. Ravinder etc. went to his village Sirsaganj and police while enquiring came to their village. The statement of landlord Dharampal was not recorded and he was not even enquired by the investigating officer as IO/Inspector Sunil Kumar himself admitted that no statement of Dharampal was recorded by him during investigation. It is further the admitted case of the prosecution that complainant and deceased purchased a quarter bottle from a wine shop and accused persons met the complainant and deceased opposite the liquor shop, however, IO admitted in his crossexamination that he did not make any enquiry from the wine and beer shop MVIII, to know if accused had purchased any liquor from the shop and no CCTV footage was procured from the said wine shop.
37. It was vehemently argued by Ld. Addl. PP for the State that the blood group on the recovered clothes of accused Ravinder and Mahesh which they were wearing at the time of incident, is similar to the blood group of the deceased. In this regard, it is pertinent to note that the present incident occurred on the night of 16.08.2012 and postmortem on the body of deceased was conducted on 25.08.2012 i.e after about eight days and accused were allegedly arrested on 30.08.2012. PW22 Inspector Sunil Kumar deposed that on 30.08.2012, he arrested accused Ravinder, Mahesh and Praveen Gupta from Vandana Enclave, Khoda Colony, from the rented house of Ravinder & Mahesh, where Praveen Gupta was also present, at FIR No.303/2012, PS. Gazipur Page 24 of 26 St. Vs. Ravinder etc. the instance of PW6 Anand Thakur. The alleged blood stained clothes were got recovered by both the accused pursuant to their disclosure statements on 30.08.2012 from their tenanted room. In this regard, PW6 Anand Thakur in his statement recorded u/s. 164 Cr.P.C i.e Ex.PW6/A has stated that accused Ravinder and Mahesh were apprehended on 24.08.2012 and thereafter, accused Praveen Gupta was also apprehended. He further stated that he was made to sit in the PS from 23.08.2012 to 25.08.2012 for identification of the accused persons. This statement of PW6 Anand Thakur is sufficient to demolish the case of prosecution that accused were arrested on 30.08.2012 at the instance of PW6 Anand Thakur. When the arrest of accused persons is doubtful on the day as claimed by prosecution, any recovery of blood stained clothes at their instance also becomes doubtful, particularly, due to the fact that the postmortem on the body of deceased was conducted on 25.08.2012 and as per complainant at that time accused were in the illegal custody of the police.
38. In view of the foregoing discussion, it can safely be held that the statements of complainant PW6 Anand Thakur & his wife PW7 Anita Thakur, coupled with the other evidences brought on record shows that prosecution has failed to prove its case beyond reasonable doubt.
FIR No.303/2012, PS. Gazipur Page 25 of 26 St. Vs. Ravinder etc. Accordingly, all the accused are given benefit of doubt and thus acquitted of the charges framed against them. File be consigned to record room.
SANJEEV
KUMAR
MALHOTRA
Announced in the open court
Digitally signed by
SANJEEV KUMAR
MALHOTRA
Location: Karkardooma
Courts, Delhi
Date: 2018.07.23
14:40:39 +0530
on 23.07.2018 (Sanjeev Kumar Malhotra)
ASJ/FTC/ECOURT
Shahdara/KKD/Delhi.
FIR No.303/2012, PS. Gazipur Page 26 of 26 St. Vs. Ravinder etc.