Delhi District Court
State vs Gopal Singh S/O Aneq Singh on 19 May, 2008
: 1 :
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE,
NEW DELHI
SC No. 122/2004/1986
State Versus Gopal Singh s/o Aneq Singh
Permanent Add: RZ B16,
Gali No. 5, Mohan Block,
West Sagar Pur, Delhi.
Present Add: RZ989A
Sagar Pur, Delhi.
FIR No: 422/84
Police Station Delhi Cantt.
Under Section 147/148/149/427/436/380/302/201IPC
Date of institution : 03.03.1986
Date when the arguments
were heard : 29.04.2008
Date of judgment : 19.05.2008
JUDGMENT
The SHO of Police Station Delhi Cantt has challaned the accused Gopal Singh in the court of Metropolitan Magistrate, New Delhi for the trial of the accused for the offences under section 147/148/149/427/436/380/302/201IPC. After supplying the copies to the accused in compliance of the provisions of the : 2 : section 207 Cr.P.C the learned Metropolitan Magistrate committed the case to the court of Sessions under section 209 Cr. P.C for trial of the accused.
BRIEF FACTS OF THE CASE
2. The prosecution case, in brief, is that complainant Smt Joginder Kaur on 09.11.1984 has filed a complaint with the police that on 02.11.1984 rioters have looted property from her house and put her house to fire and murdered her husband Sh Trilok Singh. After recording statement of the complainant Smt Joginder Kaur u/s 161 Cr. P.C. IO prepared site plan. After recording the statement of witnesses and completion of the investigation the challan, as referred before, was filed against the accused.
CHARGES
3. Accused who initially was declared proclaimed offender was subsequently arrested and case was reopened. After hearing the arguments on behalf of the State and the accused, prima facie case for the offences punishable under section 147 r.w. sec. 149 IPC, 148 r.w. sec. 149 IPC, 302 r.w. sec. 149 IPC, : 3 : 436 r.w. sec. 149 IPC, 201 IPC and 427 r.w sec. 149 IPC were made out against the accused and he was charged accordingly on 08.02.2005 to which he pleaded not guilty. PROSECUTION EVIDENCE
4. Evidence under sec. 299 Cr. P.C. was recorded as the accused could not be arrested and was declared proclaimed offender PW1 ASI Nawab Singh and PW2 Smt Tulsi Rani gave their statements under section 299 CrPC and thereafter prosecution evidence was closed and file was consigned to record room as per order dated 29.7.86 with the direction that the case shall be reopened as and when the accused was arrested and produced in the court. Thereafter accused Gopal Singh was arrested by the police, supplementary challan was filed against him and case was reopened. The complainant Smt Joginder Kaur and witness Smt Tulsi Rani expired and could not be produced in evidence before the court. In support of its case the prosecution has examined PW3 Sh Bhagwan Tiwari s/o Sh Jodhraj Tiwari, PW4 Sh Raja Ram s/o Sh Ram Swarup, PW5 Sh Kiran Singh s/o sh Shauki Ram. PW3 to PW5 are hostile witnesses. PW6 is Ct Bhagwan Dev s/o Subey Singh has : 4 : proved the copy of general power of attorney as Ex. PW 6/A. PW7 is Nikhil Kumar Ghosh who has handed over the five General Power of Attornies which were seized by the IO vide memo Ex. PW 7/A. He has proved the photocopy of General Power of Attorney Ex. PW 7/B and other photocopy of Power of Attorney collectively are Ex. PW 7/A to F. PW8 HC Satpal Singh and PW9 SI Jogender Singh were given up by prosecution. PW10 is Retd. ASI Nawab Singh who has proved the copy of FIR as Ex. PW 10/A. PW11 is Insp Suresh Chand who has stated that on 0911.84 he searched for the complainant and got the information that she was staying in relief camp. On 17.11.84 he received three more complaints regarding the incident from Chander Parkash, Surjit Kaur and Mrs Joginder Kaur and on 20.11.84 the case was transferred to Spl Wing. PW12 is Sarvesh Kumar Yadav and is a hostile witness. PW13 Insp Bhim Singh is Investigating officer of this case who has recorded the statement of witnesses and on completion of investigation challaned the accused. PW14 is Om Prakash Yadav, Retd. Inspector who has recorded the statement of complainant Tulsi Rani and has stated that one Gopal was named by her for the commission of offence in her statement. He also stated that he recorded the statement of Joginder Kaur w/o Achraz Singh and : 5 : she has also named one Gopal for the commission of the offence. He made efforts to arrest Gopal Singh but he went underground. Proceedings under section 82/83 Cr. P.C. was conducted against him. On 26.11.84 he prepared the site plan of the place of incident, certified copy of the same is Ex. PW 14/A. PLEA OF THE ACCUSED AND DEFENCE
5. In his statement under sec. 313 Cr. P.C. accused has denied all the incriminating evidence put to him. he has stated that he was wrongly declared Proclaimed offender and police filed a false case against him. He has also stated that he was implicated in this case because he has owned a vacant piece of land Plot no. 89A, area of 40 Sq. yards in Khasra No. 23/16/17. Infact he has entered into an agreement to sell with Rahbubir Singh Yadav in 1983 itself but final deed was struck only in the month of Nov. 1985. This plot had only a boundary wall and one kaccha room alongwith a small room for kitchen so as to keep possession of the plot safe. It had no toilet or bathroom nor any water electricity connection. He was residing at the address given above prior to 1984 which is situated after 3 galis from 'I' Block and his house falls in Mohan Block which is adjacent to 'I' : 6 : Block or the house where the alleged complainant used to reside He has never resided in plot no. 89 A in block nor he was immediate neighbour of the alleged complainant nor he committed the offence. He was throughout available and never went underground and police never contacted him prior to his arrest. He was falsely implicated.
6. In his defence he has examined two witnesses. DW1 Rajender Singh and has stated that accused Gopal Singh is his friend and was working with him in the company M/s Sylvania Laxman situated at Moti Nagar since 1982. At that time accused was residing at RZ B16, Mohan Block, West Sagarpur, New Delhi46. He is residing there at present address since 1982. DW2 Gopal Singh accused himself appeared in the witness box and has stated that he was residing at RZB16 Mohan Block, Gali no. 5, West Sagarpur, New Delhi since 1980 with his family. He has two brothers and no sister. Mark X is the certified copy issued by Gram Panchayat Vikas Adhikari, Firojabad pertaining to the family members of my father Anek Singh. This certificate has been issued by the authorities as per official record maintained by them. He has no brother in the name of Shyam Lal. His two brothers Kaptan and Sughar reside in a village from : 7 : the very beginning. He was in service with Sylvania Laxman from 1980 to 1986 when the factory was shut down. He was permanent employee in the said factory. ARGUMENTS
7. It is argued by learned Additional Public Prosecutor that the statement of Mrs Joginder Kaur, since deceased, recorded under section 299 Cr. P.C. should be read in evidence. In the statement she had identified the accused Ghopal Singh as one of the assailants who with the common object attacked her home and killed deceased Achraj Singh. It is argued that the prosecution has been able to prove its case against the accused beyond reasonable doubt so the accused is liable to be convicted.
8. The argument on behalf of the accused are that there is no Test Identification Parade conducted for identity of the accused after his arrest. It is argued that the three public witnesses examined PW3, PW4 and PW5 by the prosecution to establish the identity of the accused with the commission of crime have not supported the prosecution case and are hostile : 8 : witnesses. The accused has produced witness DW1 Rajender Singh who was working with him and has stated the accused had resided in some other address which is not in the neighbourhood of the residence of the complainant. DW2 the accused has examined himself and has stated that he has no brother in the name of Sham Lal and his two brothers Kaptan and Sughar are living in the village and not with him. In 1982 he purchased the plot in Khasra. 23/16/17 measuring 40 Sq. yds. bearing No. 89A. A room was temporarily constructed over this plot to secure its possession. There was no water and electricity there and he sold the said plot in 1985 to Raghubir Singh. The complaint payment was received by him in 1985. Prior to the sale of this plot no one could reside in the said plot. There were 34 lanes/ streets in between the plot and the house where he used to reside.
9. It is argued that there is delay in lodging of the FIR as the incident is dated 2/11/1984 but the FIR was lodged on 9/11/1984. It is argued that the complaint is made by one Jasbir Kaur regarding death of one Tarlok Singh and a separate FIR is not lodged in this case. It is argued that the statement of the complainant recorded under section 299 Cr.P.C. as PW2 cannot : 9 : be read in evidence as the conditions of the said sections were not complied with. Reliance is placed upon the authority Nirmal Singh versus State of Haryana 2000 CRLJ 1803 S. C. wherein following observations were made by the apex court: "On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that the preconditions in both the Sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 Cr. P.C. before the arrest of the accused can be utilized in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299 (1) of the Code of Criminal Procedure is established."
10. Reliance is also placed upon the authority Emperor versus Labbai Kutti AIR 1939 Madras 190 wherein following observations were made by the Madras High Court: " Section being complied with S. 512, Criminal P.C., which empowers a Magistrate to take the depositions of certain witnesses in the absence of the : 10 : accused, enacts an exception to the principle embodied in S. 33, Evidence Act, namely that the evidence of a witness which a party had no right and opportunity to crossexamine is not legally admissible. Before an exception can be availed of, the conditions prescribed by the statute must be strictly complied with. Even under S. 33, Evidence Act, strict proof of the conditions required in that Section are insisted on, especially in criminal cases. In 1 Rang 512 at p. 514 May Oung J.
observes thus:
The power given by S. 33 requires to be exercised with great caution and the Court must insist on strict proof before holding that the requisite conditions have been satisfied. More especially is this necessary where a man is being tried for his life and the evidence sought to be put in is of signal importance.
Much more so under S. 512, Criminal P.C. Therefore it is incumbent that the death of the witnesses must be proved and there can be no doubt that the burden of proving the factum of death is upon the party who wishes to tender the evidence. That fact of death must be proved like any other fact and a mere : 11 : report that a certain person is dead is not sufficient."
11. Reliance is placed upon Mehr Lila Meraman and another Vs. State AIR 1954 Saurashtra 159 wherein following observations were made: " Before evidence of a witness recorded in a judicial proceeding can be admitted in a subsequent judicial proceeding under S. 33, that Judge must be satisfied by proper materials that the attendance of such witnesses cannot be obtained within reasonable time. The fact that the summons is not served upon a witness particularly when his whereabouts are known is no ground for holding that he is incapable of attending the Court or his attendance cannot be procured. An oral application from the Public Prosecutor for admission of evidence of the witness is not by itself a sufficient ground for admitting that evidence. In civil cases the other side may waive proof of the circumstances under which such evidence may be admitted under S. 33, Evidence Act. But in criminal cases the fact that no objection was taken to the reception of such evidence cannot dispensed with : 12 : the necessity of seeing that the requirement of that section are fulfilled. See'Chaincha Singh V. Emperor', AIR 1946 PC 1 (a). The learned Judge therefore erred in admitting the evidence of these witnesses."
12. It is argued that the prosecution has not lead any evidence to connect the accused with the commission of the crime in question nor the death of deceased Achraj Singh is proved nor the complaint made to the police with regard to some other incident implicates the accused and no separate FIR is lodged in this case so accuses entitled to be acquitted. FINDINGS 13 I have heard the learned Additional Public Prosecutor for the State and the learned counsel for the accused and have gone through the record of the case and relevant provisions of law and authorities cited carefully.
14. The most important question in this case is the identity of the accused with the commission of the offence in question. When a serious charge is levelled against an accused of : 13 : commission of the heinous offence the credible evidence with regard to identity of the accused must be established to bring home the guilt of the accused by the prosecution. In this case post arrest of the accused none of the witnesses examined by the prosecution from PW3 and PW 14 has been able to establish the identity of the accused with the commission of the crime in question. PW3 Sh Bhagwan Tiwari, PW4 Raja Ram and PW5 Sh Kiran Singh are the public witnesses produced by the prosecution but instead of proving the identity of the accused with the alleged offence they have turned hostile and have not supported the prosecution case, as is also argued on behalf of the accused. Post arrest of the accused no eyewitness is examined by the prosecution. PW7 Nikhil Kumar Ghosh has proved the copy of the GPA Ex PW7/C to Ex PW 7/F and Ex PW7/B to show that the plot No. 89A was transferred from one person to another till it was purchased by PW7 Nikhil Kumar Ghosh. This witness PW7 Nikhil Kumar Ghosh has stated in the crossexamination that nobody was living in the above said house RZ 89 A Sagarpur. He also stated that when he purchased it, it was in damaged condition. Neither there was electricity nor there was any water connection or any other arrangement. Neither it was fit for residence. He came to know : 14 : that nobody resided in it any time before him. Therefore, even if, at one point of time the plot in question belonged to the accused, there is no evidence that he was living in it . The fact that this plot happens to be in the neighbourhood of the premises of the complainant or the place of incident does not necessarily mean that accused was one of the persons who committed murder of Achraj Singh or theft or other offences alleged against him. Therefore, none of the witnesses examined by the prosecution post arrest of the accused in this case being either eyewitness to the incident or otherwise has stated anything to connect the accused with the commission of the offences for which he is charged or is able to connect the accused with the crime in question.
15. Coming to the question of the evidence recorded under section 299 Cr. P.C. the prosecution has examined only two witnesses under this provision of law PW1 is ASI Nawab Singh who has only proved the copy of the FIR as Ex PW1/A and the PW2 Ms. Tulsi Rani the mother of the victim is the only eyewitness examined in this case that too under section 299 Cr. P.C. and not post arrest of the accused. It is true that the prosecution in its evidence has not proved that this witness : 15 : cannot be produced by it post arrest of the accused as she has died. But the summons issued by the court to procure the attendance of this witness were received with the photocopy of her death certificate issued by the office of Registrar, Birth and Death, MCD. Therefore, it can be presumed that PW2 Ms. Tulsi Rani has died so the prosecution could not produce her. The three citations relied upon on behalf of the accused are , therefore, unable to help the accused on this count. Now it is to be seen whether the statement of PW2 Ms. Tulsi Rani recorded under section 299 Cr PC establishes the identity of accused with the commission of the crime.
16. PW2 Tulsi Rani, in short, has stated that on 1/11/1984 at about 10 a.m. about 100/150 had gathered and attacked her house. Her neighbour Gopal was also in that crowd. The crowd and Gopal burnt her household articles. Throughout the night the crowd was raising slogans Mar Do Mar Do. In the night intervening IInd and IIIrd November 1984 at about 4 a.m. the crowd including Gopal entered into her house and at the instance of Gopal the crowd had attacked her son with the Barcha and thereafter they poured kerosene oil on the person of Achraj Singh who was also thrown out of the house from the : 16 : roof. The crowd put fire while Gopal was pointing towards Achraj Singh. Gopal and his brother Sham Lal had entered into her house along with the mob and they had brought entire household goods. They also looted Rs. 25,000/ which was the sale proceed of the truck. The total loss incurred in cash and kind (ornaments) was of rupees 135,000/ besides documents of the house.
17.The above statement of PW2 Tulsi Rani shows the Gopal which she has named as the person who was leading the mob who attacked her house was the brother of Sham Lal. There is no evidence on record to show that the accused was brother of Sham Lal. DW2 the accused himself when examined after provision under section 315 Cr. P.C. has specifically stated that he has no brother in the name of Sham Lal and his two brothers are Kaptan and Sughar. The evidence of DW2 and that of the witness prosecution PW7 Nikhil Kumar Ghosh shows that neither there was any electricity or water supply in the plot owned by the accused which was in the neighbourhood of the house of the complainant not there is any evidence that the accused or anybody else was living in the said premises. There is also no : 17 : evidence on the court file to show that there is no other person by the name of Bhopal living in the neighbourhood of the complainant or that it is the only accused who was living in the neighbourhood of the complainant about whom PW2 has given statement under section 299 Cr. P.C. There is no test identification of the accused conducted after his arrest. Therefore, all these facts show that the identity of the accused with the commission of crimes in question is not established by the prosecution.
18. The FIR No. 422/84 dated 9/11/1984 Ex PW1/A is lodged by one Jasbir Kaur wife of Trilok Singh who has nothing to do with this case. The FIR is not lodged on the complaint Ex PW2/A of the complainant Joginder Kaur. Further there is no evidence of death of Shri Achraj Singh. There is no MLC or postmortem report of Achraj Singh produced to prove his death in the alleged incident.
RESULT OF THE CASE In view of the above discussion the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused is acquitted of the charges under sections 147/148/302/436 read with section 149 IPC. The bail bonds are : 18 : discharged. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The file be consigned to the record room.
Announced in the open court on 19th day of May, 2008 ( S K SARVARIA ) Additional Sessions Judge New Delhi : 19 :