Delhi District Court
State vs Ramu @ Panga S/O Uday Ram @ Uday on 3 September, 2012
1
IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE, OUTER01, ROHINI, DELHI
Sessions Case No:146/2011
FIR No:51/2009
Police Station : Sultanpuri
U/s 302/397/34 IPC.
State
Versus
Ramu @ Panga S/o Uday Ram @ Uday,
R/o B4/305, Sultanpuri, Delhi.
... Accused
Date of Institution : 29.5.2009
Date of Argument : 8.8.2012.
Date of Decision : 3.9.2012.
JUDGMENT
1. Brief facts of the prosecution case are that on 12.2.2009 DD no.27A was recorded in PS Sultanpuri on the information received from PCR that one person has been stabbed near corner of tanki near medical store. The said DD was marked to SI Mukesh Kumar who along with Ct.Satender reached at the spot i.e E Block near water tanki corner opposite to Galaxy Medical Store State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 1 2 E394395 Sultanpuri where he came to know that injured has already been shifted to SGM Hospital and on inquiry he came to know that injured has been stabbed at DTC bus stand A1 block, Nangloi road in front of gate of park, main sarak near purana machi chowk and injured while running towards his house after stabbing fell down at a distance of 50 to 70 mts. from the water tanki.
2. SI Mukesh Rana reached at the hospital where he collected the MLC of injured Sanjay but he did not found any eye witness in the hospital. On receiving the information, SHO Inspector Yashpal along with staff reached there after expiry of injured. He made endorsement on the DD itself and prepared the rukka for registration of FIR u/s 302 IPC.
3. After registration of FIR further investigation was marked to Inspector Yashpal. He collected the MLC and pulunda containing blood clothes of deceased shifted the dead body to Mortuary, SGM Hospital. In the mean while Bhupinder brother of the deceased Sanjay reached at the hospital. They identified the dead body as of Sanjay. Thereafter he reached at the spot i.e in front of gate near DTC bus stand between E and A block where Ct. Tej State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 2 3 9Singh handed over him FIR no. 51/09. He prepared the site plan. Crime team officials took the photographs of the spot. He lifted blood from the spot, blood stained concrete and earth control from the spot and sealed them. Randhir @ Gopal met him and told that he is eye witness. His statement was recorded. Statements of Jitender and Rajesh other eye witnesses were also recorded. From the statements of eye witnesses Randhir and Rajesh it transpired that on 12.12.09 one Ramu R/o B4 Block, Sultanpuri and Mehgo caught hold the deceased near the gate of park, Nangloi road and Ramu put his hand in the pocket of deceased on which deceased had quarreled with them and due to this Mehgo had gave knife blow whereas Ramu took out purse from the pocket of deceased and thereafter they ran away.
4. During investigation on the secret information, accused Ramu @ Panga was arrested on 24.2.2009 from the corner of Ambedkar park and his confessional statement was recorded by the Inspector Yashpal. Witnesses Randhir and Rajesh also came there and identified the accused. Accused pointed out the place of incident. The PC remand of accused was obtained and on State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 3 4 26.2.2009 accused got recovered robbed articles i.e one leather purse of black colour of deceased which was containing one car of Citibank, one card of PF, one bank slip of SBI, and one cash receipt of Mannapur Finance from his residence at village Bakhra, Dist. Jalore, Rajasthan which were seized by SI Mukesh Kumar.
5. On 7.3.2009 Raju @ Mehgo was apprehended on the secret information from Jalebi Chowk. He also made his confessional statement and his personal search was conducted. He recovered one buttondar knife from damaged govt. shochalya, AD Extn., Sultanpuri. Accused Raju @ Mehgo also took the police officials to his jhuggi at Raghubir Nagar near Vishnu Dharamkanta from where he recovered one track suit pyajama of light blue colour which accused claimed to be wearing at the time of incident which was seized by Inspector Yashpal Singh.
6. IO obtained subsequent opinion of the doctor regarding weapon of offence. He collected the bank details of the deceased, sent the exhibits to the FSL, collected the postmortem report and FSL result and after completion of investigation filed charge sheet against both the accused persons. State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 4 5
7. During investigation accused Raju @ Mehgo claimed that he is juvenile. Hence after inquiry accused trial was started and his case was transferred to Juvenile Justice Board for further trial vide order dated 5.6.10 by my Ld. Predecessor. By the same order, my Ld. Predecessor also frame charge u/s 302/34 IPC against accused Ramu @ Panga to which accused pleaded not guilty and claimed trial.
8. In order to prove its case, prosecution examined 29 witnesses i.e Jitender as PW1; Randhir @ Gopal as PW2; Bhupender @ Bablu as PW3; Dr. Mahipal Singh as PW4; Mithlesh as PW5; Surender as PW6; Maan Singh as PW7; Rajesh as PW8; HC Tej Singh as PW9; Ct. Kamal Singh as PW10; Raju as PW11; ASI Ranbir Singh as PW12; Ct. Biri Singh as PW13; Madan Mohan Sagar as PW14; L/Ct. Sangeeta as PW15; Ct. Sanjeev Kumar as PW16; Dr. Manoj Dhingra as PW17; Ct. Daya Ram as PW18; HC Ramesh Kumar as PW19 ; ASI Raj Singh as PW20; Ct. Rupesh as PW21; SI Jaspal Singh as PW22; Inspector Sanjay Gade as PW23; SI Manohar Lal as PW24; Abhay Prakash as PW25; SI Mukesh Rana as PW26 HC Govind Singh as PW27; State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 5 6 Ct. Satender as PW28 and Inspector Yashpal Singh as PW29.
9. PW1 Jitender made a call to the police at 100 number giving information about the lying of one boy near the pani ki tanki, E Block, Sultanpuri.
PW2 Randhir @ Gopal, PW6 Surender, PW7 Maan Singh, PW8 Rajesh and PW11 Raju are the eye witnesses.
PW3 Bhupender @ Bablu is the brother of the deceased. He identified the dead body of the deceased.
PW4 Dr. Mahipal Singh examined the injured Sanjay and proved the MLC.
PW5 Mithlesh is the sister of deceased. She deposed that in her presence IO recorded the confessional statement of accused and prepared the pointing out memo and in her presence accused has pointed out the place of occurrence.
PW9 HC Tej Singh handed over the DD no.31A to SI Mukesh Rana and he after preparing rukka handed over to him for registration of FIR.
PW10 Ct. Kamal Singh is the photographer of crime team.
State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 6 7 PW12 ASI Ranbir Singh is the duty officer and proved FIR and DD no.27A and DD no.13.
PW13 Ct. Biri Singh took the special report to Joint CP, DCP and Ld. MM.
PW14 Madan Mohan Sagar is the branch Manager, SBI and proved statement of account bearing no.39498646769 in the name of deceased.
PW15 L/Ct. Sangeeta was on duty at PHQ and recorded information/message of stabbing of deceased and forwarded the same on PCR net.
PW16 Ct. Sanjeev Kumar deposited the exhibits to FSL.
PW17 Dr. Manoj Dhingra conducted the postmortem and proved the postmortem report and subsequent opinion regarding weapon of offence.
PW18 Ct. Daya Ram and PW19 HC Ramesh Kumar accompanied the IO to the village Bakra, Rajasthan where accused got recovered the case property i.e purse containing citibank card, Karamchari Bhavishyanidi Sangathan Card, one SBI State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 7 8 bank slip and one receipt of Mannapuram Finance Ltd.
PW20 ASI Raj Singh is the Incharge of PCR van who took the injured to hospital.
PW21 Ct. Rupesh remained with the IO during arrest of accused Ramu @ Ponga and pointing out memo of the spot.
PW22 SI Jaspal Singh remained with the IO at the time of lifting blood stained earth control etc. from the spot on the day of incident.
PW23 Inspector Sanjay Gade is the Incharge Crime Team, inspected the spot and proved his report.
PW24 SI Manohar Lal is the draftsman who prepared the scaled site plan.
PW25 Abhay Prakash is the Managar (Legal) of Mannapuram Finance Ltd. and stated that the pledge receipts no. 0700860700717249 and 0700860700718568 in the name of Sanjay are issued by Tilak Nagar branch.
PW26 SI Mukesh Rana initially inspected the spot and also went to village Bakra with the accused and also was the IO State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 8 9 at the time of recovery of case property i.e articles of deceased from the village Bakra at the instance of accused.
PW27 HC Govind Singh is the MHC(M).
PW28 Ct. Satender initially went to the spot with SI Mukesh Rana and is the witness of identification of dead body of deceased by his brother PW29 Inspector Yashpal Singh is the IO.
10. The prosecution has also proved various documents i.e rukka as ExPW12/C; endorsement as ExPW26/A; FIR as ExPW12/A; site plan as ExPW25/A; scaled site plan as ExPW24/A; confessional statement of accused Ramu @ Panga as ExPW5/B; confessional statement of accused Raju @ Mehgo as ExPW29/J; pointing out memo prepared at the instance of accused Ramu @ Panga as ExPW5/A; pointing out memo at the instance of accused Raju @ Mehgo as ExPW29/K; seizure memo of clothes of deceased as ExPW9/A; seizure memo of blood stained concrete as ExPW22/A; earth control sample as ExPW22/B; seizure memo of blood as ExPW22/C; seizure memo of clothes of deceased and envelope containing blood gauge piece of deceased as ExPW28/A; State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 9 10 seizure memo of recovery of articles of deceased and shirtpant of the accused Ramu @ Panga as ExPW18/A; seizure memo of knife as ExPW29/M; sketch of knife as ExPW29/L; seizure memo of track pant of Raju @ Mehgo as ExPW29/N; MLC of deceased as ExPW4/A; application for conducting postmortem ExPW27/G and ExPW27/H; brief facts as ExPW29/F; DD no.31A as ExPW12/D; unnatural death report as ExPW29/E; identification statement of Bhupinder @ Bablu as ExPW3/B; postmortem report as ExPW7/A; application regarding subsequent opinion as ExPW29/D; subsequent opinion of doctor as ExPW17/B; application for providing transaction details of Sanjay to Manager, SBI as ExPW29/P; statement of account of SBI Bank of Sanjay as ExPW14/A; statement of Manappuram Finance Ltd. as ExPW25/B and ExPW25/A; crime team report as exPW23/A; arrest memo of accused Ramu @ Panga as ExPW21/A; personal search memo of accused Ramu @ Panga as ExPW21/B; arrest memo of Raju @ Mehgo as ExPW21/C and his personal search as ExPW21/D; photographs as ExPW10/B2 to B13 and negatives as ExPW10/A1 to A13.
11. Statement of accused u/s 313 Cr.P.C. recorded State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 10 11 wherein he denied the evidence put to him.
12. Accused examined Smt. Mani his mother as DW1. She stated that she and her son Ramu @ Panga went to Jalore to meet her brother Rupa Lal and remained there for 10 days. On 18.2.2009 she came back with her son and her son was lifted from the home and falsely implicated in the case. She informed the CP through fax message dt.21.2.09
13. Argument heard from Shri S.C. Sroai, Ld.Addl.PP for the State and Ms. Rekha Sharma, Advocate for accused. Record perused.
14. The case of the prosecution is that on 12.2.09 deceased Sanjay was coming out from ATM after withdrawing money and he was chased by accused Ramu @ Panga and Raju @ Mehgo (Juvenile) and they tried to snatch his purse and when deceased resisted, they stabbed him due to which he expired. The star witnesses of the prosecution as per charge sheet filed by the police were PW2 Randhir @ Gopal, PW3 Bhupinder @ Bablu; PW6 Surender and PW8 Rajesh who as per the prosecution case were the eye witnesses who had seen the accused persons State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 11 12 snatching the purse from the deceased and stabbing the deceased.
15. However PW2 Randhir, PW6 Surender and PW11 in their testimonies did not support the case of the prosecution and turned hostile.
16. PW2 Randhir in his examination in chief deposed that on 12.2.09 at about 5 pm he along with one Surender was gone to Mangolpuri on foot to receive their wages from the contractor Jakir and when they reached at A block b1us stand they noticed gathering near Indra Park, Sultanpuri and it came into their notice that murder has been taken place between A & E block, Nangloi Road, Sultanpuri. Police met them and recorded their statements and addresses. He is not aware by whom the murder has been committed. He was cross examined by the Ld. Addl.PP and he denied suggestion that his statement was recorded by the police or that accused Ramu @ Panga was earlier known to him or that at 5 pm accused with his one associate caught hold one person near the gate of park at Nangloi Road or that accused Ramu put his hand in the pocket of that person to remove his purse or that the grappling took place between them and his associate caused stab injury to that State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 12 13 person. He was confronted with his statement given to police ExPW2/A where the said fact was recorded. But despite this he did not supported the prosecution case. He denied the suggestion that he is not intentionally identifying the accused or that he has been won over by the accused.
17. PW6 Surender deposed that on 12.2.09 he was taken to PS Sultanpuri in a white colour gypsy and there police made inquiry from him about the incident. He told to the police that he do not know anything about the quarrel and thereafter he was relieved. Accused Ramu @ Panga is not known to him nor he had committed the murder of any person. Since he also not deposed in a manner as deposed by him in his statement u/s 161 Cr.P.C. , therefore, PW6 was declared hostile and cross examined by Ld. APP. In his cross examination he stated that police had not recorded his statement. He denied the suggestion that on 12.2.09 at about 5 pm near Bus Stand old fish market, Nangloi Road, Sultanpuri accused Ramu with his associate robbed a boy or that when the said boy resisted accused Ramu caught hold him and his coaccused caused stab blows on the person of that body. He was confronted with his State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 13 14 statement Mark PW6/A given to the police but he denied that said statement was made by him to the police.
18. PW11 Raju deposed that he was working as Ghoriwala with New Shiv Band, Purana Machli Chowk, Nangloi road, Sultanpuri and know nothing about the present case. Police has not recorded his statement. He do not know the accused present in the court. He do not know any person in the name of Sanjay. He was declared hostile and cross examined by Ld. Addl. PP for the State. In his cross examination he denied that he stated to the police that on 12.2.09 he was feeding his ghori or that one Surender has asked him about the whereabouts of Arvind from him, who was working with him at that time. He further stated that he had not stated before the police that he had seen accused Ramu @ Panga and his associate Mehgo grappling one person near DTC bus stand or that he, Surender and Gopal raised alarm or that the associate of accused Ramu @ Panga namely Mehgo shown the knife which he was carried out at that time or that accused Ramu had took out the purse from the pocket of that person. He was confronted with his statement ExPW11/A but despite this, he has not admitted the State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 14 15 contents. PW11 also denied that he has also given statement mark B and mark PW11/B and PW11/C to the police. He denied the suggestion that he was won over by the accused. He was not cross examined by defence counsel.
19. PW8 Rajesh is the another eye witness, he become most material witness from the side of the prosecution, as other eye witnesses have turned hostile. He deposed in his examination in chief that he is a private driver and on 12.2.09 he was standing at bus stand E Block, Sultanpuri near Machli chowk and there he was waiting for a bus to go to Peeragarhi. He was known to Sanjay because he was working at Gaurav International Industrial Area, Mangolpuri. At about 5 pm Sanjay was crossing the road at that time two boys were doing cheenajhapti with him and out of those boys one put his hand in the pocket of Sanjay and took out his purse and when Sanjay resisted both the boys grappled him and one of those boys took out a knife and gave blow to Sanjay. The person who gave knife blow to Sanjay is present in court today. He pointed out towards accused Ramu @ Panga. He further stated that one boy was wearing one black pant and white shirt and other boy was State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 15 16 wearing sky blue colour tracksuit. He further stated that after receiving injuries, Sanjay fell down towards water tanki side. After seeing the incident he become perplexed. In the mean time bus reached and he boarded and same as he has to go for an urgent work. When he reached at his house at Sultanpuri he found hue and cry among the people and they were talking about the murder of Sanjay. Some media persons were also present there with the police. IO recorded his statement. He further deposed that accused present in the court was brought by the police and he identified the accused who had put the hand inside the pocket of Sanjay at the time of incident. Thereafter accused led them to the place of occurrence and pointed out the spot. IO prepared the pointing out memo. He further deposed that accused Ramu @ Mehgo was also arrested by the police and he accompanied the police to the spot. Ramu @ Mehgo also pointed out the spot. He was cross examined by the Ld. Defence counsel in which he stated that he has not tutored from police file today or on earlier date. He stated that distance between his house and house of accused is 06 streets away. The place of occurrence is about 100 ft. wide road. The State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 16 17 distance between the place where he was standing at the bus stop and the place where the Sanjay was crossing the divider road was about 15/20 ft. The deceased was passing from his side towards the other side of the road by crossing the broken railing affixed on the divider road. He has seen the face of deceased when he was grappling with the accused persons. He did not remember at what time his statement was recorded but it was in the evening. The boy who had a knife in his hand was wearing blue colour track suit. He was standing at the bus stand and was alone at that time. He was going to prepare a video graphy in a marriage function nearby Peeragarhi and he returned back to Mangolpuri from the function at 7.30 pm and thereafter after staying for some time at his house he had again visited the place of function at about 9.30 to 10 pm. He denied the suggestion that deceased was the son of his mausi (maternal aunt). He denied the suggestion that both the accused persons were shown to him by the police in the police station. He also denied the suggestion that after leaving Sanjay at the spot, both the accused persons had went across the road having knife. He further stated that the distance between him and where the State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 17 18 deceased was lying was around 6070 ft. He stated that he was not knowing the accused persons before. He admitted that after seeing the incident he went to his place and had not tried to save the deceased. He denied the suggestion that his signatures were obtained by the IO on blank papers.
20. Statement of accused u/s. 313 Cr.P.C. was recorded, in which he denied all the incriminating evidence put to him, he has taken the defence that he along with his mother had gone to the house of maternal uncle at Jalore, Rajasthan on 09.02.2009 and he only come back on 18.02.2009. Police had not arrested him on the date of arrested and he was lifted from his house on 18.2.2009 in the midnight and later on implicated in this false case. He was working as Beldar and assistant of mechanic of accessories of vehicle. In support of his defence he examined one defence witness i.e. Smt. Mini, his mother, who has deposed the same fact that on 09.02.2009 she went along with her son to Jalore, Rajasthan, as she received a phone call from his brother Rupa Ram. He was not well and there they remained for about ten days and came back on 18.2.2009. on that day 23 police officials came and stated that her husband in their State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 18 19 custody. She gone to the PS Sultanpuri and came back with with her husband and at about 11/11.30 am police again came to her house and lifted her son. Police stated to her on 12.02.2009 a murder had taken place and his son is required for investigation of that case. She has informed to the Commissioner of Police, Delhi through Fax dated 21.02.2009 about lifting of her son. She also gave a complaint to the DCP on 21.02.2009. Police produced her son on 22.2.2009. her son has not involved in any murder case. In her cross examination by ld. Addl. PP for the State she stated that she has no documentary proof that she had gone to the Jalore, Rajasthan. She has not given documentary that her brother in law was ill. She denied the suggestion that documents fabricated in order to create false defence. She denied the suggestion that her son was arrested from Ambedkar Park, Sultanpuri on 24.2.2009. She admits that her son is not having any enmity with any person. She also admitted that her son was involved in one more case of hurt prior to this case. She further admits that her son was also involved in case of chain snatching prior to the present case.
21. Arguments heard from Shri S.C. Sroai, ld. Addl. PP State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 19 20 for the State and Ms. Rekha Sharma, ld. Counsel for the accused.
It is argued by ld. Addl. PP for the State that from the testimony of PW8 Rajesh, it is proved beyond reasonable doubt that accused Ramu @ Panga along with his associates Raju @ Mehgo had robbed deceased Sanjay and when deceased protested they grappled him and accused's associate Raju @ Mehgo stabbed the deceased many times due to which deceased had expired. He further contended that PWs as an independent witness and has no motive to falsely implicate the accused, therefore, accused is liable to be convicted for offence under section 302/392/394/34 IPC.
22. On the other hand, ld. Counsel for the accused Ms. Rekha Sharma has stated that there were four eyewitnesses of the incident, but out of that only PW8 had supported the prosecution, whereas other three witnesses i.e. PW2, PW6 and PW11 have turned hostile and stated that in their presence they have not seen the accused Ramu and his associates have either snatched anything from the deceased or stabbed him. She further argued that PW8 is a planted witness, as despite the fact that PW8 has alleged that he had seen the deceased being stabbed by the accused persons. He State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 20 21 did not try to save him neither took injured to the hospital nor he made any call to the police about the incident. Hence, his conduct is very unnatural, therefore, he is not a reliable witness and his testimony should be discarded.
She further contended that recovery allegedly effected at the instance of accused Ramu @ Panga from the Bankner is also planted, as no independent witness has been joined at the time of recovery nor even local police joined in the investigations, which is mandatory. She further contended that from the FSL Report, it is evident that clothes of deceased recovered at his instance have no blood stains, so clothes cannot connect the accused with the crime. In such circumstances, there is no evidence against the accused and benefit of doubt be given to the accused and he be acquitted.
23. The accused has been charged for culpable homicide amounts to murder u/s 302 IPC.
24. Section 300 IPC deals with murder. It reads as under :
300. Murder : Except in the cases hereinafter excepted, State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 21 22 culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
In section 300 IPC, the definition of culpable State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 22 23 homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii)with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
25. Section 302 IPC deals with punishment for murder. It reads as under :
302. Punishment for Murder : Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
26. As far as death of the deceased Sanjay is concerned, from the PM Report ExPW17/A it is evident that deceased had State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 23 24 received following injuries :
a) on inner back of Rt. Lower below 2.5 cm from mid line.
From a point 31 cm below cervical spine. 2.8 cm X.6 m th X 11 cm. Directed upward forward through the 8 th intercostol space causing a cut # of 8 rib pearsing the diapharm into the substaca of rt. Lobe of liver.
b) Stab wound on outer back of lt. upper chest 2 cm X.8 cm X .5 cm present. 10 cm from tip of lt. Shoulder 4 cm from lt. posterior axillary fold and 16.5 cm from midline directed forward and from rt. to lt. causing contusion in the subcutanius tissue along outer border of lt. scaple.
c) Stab wound on outer aspect of rt. Upper leg 2.8 cm X . 6 cm X up to between the space between tebia and fobule bones present 7.5 cm below the knee and is obliqually placed.
d) Incised wound 4 cm X .6 cm X muscle deep present on back of Lt. hand 2.5 cm below the waist.
e) Incised wound 7.4 cm X 1.8 cm X muscle deep extending from inner front of Lt. upper forearm 4 cm below the elbow on the inner aspect of fore arm with an abrasion talling from the lower end of the wound of size 2 cm X .1 cm. The wound has a tage of skin over lying in the middle of the wound of .4 cm.
Further doctor has opined that the cause of death is hemorrhage and shock consequent to pointooting wound caused by State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 24 25 single edge sharp stabbing weapon via injury no. a), injury b) is caused by singe edge sharp stabbing weapon, injury c), d) and e) could be caused by sharp cutting weapon. Injury a) is sufficient to cause death in ordinary course of nature. All injury are antimortem and fresh.
Hence from the PM Report it is proved that deceased has been stabbed with the intention to cause his death, hence it is a culpable homicide amount to murdered.
27. The next issue is to be decided now whether the deceased has been murdered by the accused Ramu @ Panga along with his associate Raju @ Mehgo (Juvenile).
28. Prosecution has cited four witnesses in the charge sheet i.e. PW2, PW6, PW8 and PW11 as eye witnesses. Out of the said witnesses as discussed above three witnesses i.e. PW2, PW6 and PW11 have turned hostile and had not stated in their testimonies in court that they had seen the accused Ramu @ Panga and Raju @ Mehgo (Juvenile) snatching the purse from the deceased or stabbing the deceased Sanjay. They had not identified the accuse Ramu at all. Neither they had stated that accuse Ramu State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 25 26 was arrested in their presence or he pointed out pace of occurrence. They were extensively cross examined by ld. Addl. PP for the State, which is discussed above, but nothing fruitful has come out as they stick to their stand. Therefore, their testimonies are not helpful to the case of the prosecution.
29. PW8 Rajesh has claimed himself to be an eyewitness of the incident. He is a chance witness who claimed to be present near the spot i.e. bus stand at A1 Block, Sultanpuri near Machli Chowk, at Nangloi Road. From where he saw the incident happened on the divider of the road in his presence. If PW8 had seen the accused Ramu doing this then no other testimony is required to convict the accused, as it is settled law that testimony of sole witness is sufficient to convict a person, if his testimony trustworthy and reliable. As it is held in Dinesh Tiwari @ Raju Cr.L.A.417/2000 dated 17.8.2000 passed by our own High Court that "It has been constantly held that as a general rule the court can and may act on the testimony of a single witness provided the evidence has a ring of truth and the same is cogent, credible and trustworthy.
State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 26 27
30. PW8 Rajesh stated that on 12.2.09 at about 5 pm he was standing at bus stand when he saw Sanjay (deceased) was crossing the road near the said bus stop when two boys were doing snatching (cheenajhapti) with him. Out of those boys, one boy had took out purse from the pant of Sanjay and when he resisted, both the boys grapple him. One boy gave knife blow to Sanjay. He identified the said boy as accused Ramu @ Panga. Thereafter, Sanjay fell down on the road towards water tanki and those two boys ran away towards water tanki side.
31. In his cross examination, PW8 has stated that deceased was known to him being residing in the same locality. But despite this on seeing that deceased was being stabbed by accused and his coassociate he did not intervene in it and did not try to save him. May be he has reason for not doing so, as he may have apprehension that assailant can harm him. But he even did not try to help the deceased by taking him to the hospital when accused person have run away from the spot. Neither he made any call to the police or stopped at the spot to tell the police that he is the eye witness of the incident. He only stated that he become perturbed State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 27 28 after seeing the incident and picked up the bus and went away to do the videography in a marriage function has not stated in his statement given to the police that after the incident he went in a marriage function. Neither IO has tried to sought any clarification from the PW 8 why he left the spot after the incident. Further PW8 stated in chief that he is a private driver. Then for whom he was doing videography. Further PW8 had stated that he stayed in the marriage for about 02 hour i.e till 7.30 pm and came back and gave the statement to the police and then again visited to the marriage function at around 9.30 or 10 pm, whereas PW29 IO Inspector Yashpal in his cross examination stated that he remained at the spot till 8/8.15 pm but PW8 did not met him at the spot. PW29 stated that he recorded the statement of PW8 Rajesh at 9.30 pm at PS . Hence statement of both PW8 and PW29 are contradictory to each other.
32. Further I am agree with the contention of Ld. Defence counsel that h conduct of PW8 is very unnatural and it is very difficult to believe that after seeing such an incident, he did not help the victim who is known to him and he also did not stay at the State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 28 29 spot neither he inform to the police by phone about the incident despite the fact that today mobile phone are easily available.
33. But even if I ignored the conduct of PW8 Rajesh. I do not find his testimony reliable and trustworthy regarding identification of accused Ramu @ Panga. PW8 Rajesh has admitted in his cross examination that accused was not known to him previously. In his testimony PW8 has not mentioned the date when he saw the accused after the incident. He has only stated in his examination in chief that accused was brought to the police and he identified the accused. Accused was interrogated in his presence and accused confessed about his involvement in the murder of deceased Sanjay and thereafter accused took them to the place of occurrence. As stated above though no date is given by PW8 in his testimony when accused was apprehended or accused confessional statement was recorded but from the testimony of other PWs including IO/PW29 it is evident that it was 24.2.09 when accuse Ramu was arrested. PW29 Inspector Yashpal has stated that accused was apprehended on 24.2.09 from the corner of Ambedkar Park, Sultanpuri and he was brought to the police station where State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 29 30 accused confessed his involvement and he recorded accused confessional statement ExPW5/B. But PW29 IO Inspector Yashpal Singh had not stated that PW8 was present in PS when he recorded confessional statement of accused Ramu he only stated that PW8 met him at the spot. Therefore, testimony of PW8 that he saw the accused or that accused confessed his crime is not corroborated by PW29. Signature of PW8 was not obtained on the confessional statement of accused ExPW5/B which further strengthen the said fact. PW29 in cross examination stated that he recorded statement of Rajesh at the spot at about 8.45 pm.
34. Now coming next stage whether PW8 saw the accused on spot on 24.02.09. PW 29 stated that PW8 met him at the spot. But PWs PW26 SI Mukesh Rana, PW21 Ct. Rupesh and PW5 Mithlesh the other witness present at the spot have not deposed that they met PW8 either at police station on 24.2.09 or at the spot. PW26 SI Mukesh Rana stated that PW Raju and Randhir @ Gopal met them at the place of occurrence whereas PW21 Ct. Rupesh stated that only PW5 Mithlesh was present when disclosure statement was recorded. He did not depose that any eye witness State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 30 31 met him at the place of occurrence when pointing out memo was prepared. Hence there is inter se contradiction in the testimony of PW regarding his presence at the PS or at spot on 24.02.2009. Hence i do not find his testimony reliable that he saw the accuse on 24.02.2009. Hence after the incident PW8 had first time saw the accused in the court i.e after about one year as his testimony was recorded on 25.11.2011. No doubt there is no law that first time identification in court is to be discarded, but it has to be evaluated cautiously as witnesses are able to identify the accused in court because accused stand separately in the court and one can easily identifiable, therefore witness can presume that he is the culprit and can point out him.
35. No application for conduction of TIP of accused was filed by the PW29/IO after the arrest of accused for the reason best known to him. I failed to understand when accused was arrested on 24.2.09 at that time no eye witness was present there. Why he was not put the accused in muffled face immediately so that his TIP could be conducted. Furthermore IO has failed to explain how the alleged eye witness have reached at the spot, when he brought the accused State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 31 32 to the place of occurrence for point out. It appears that IO was playing safe game. He did not want to take the chance of non identification of accused in TIP under the zeal of solving the case.
36. Again reverting back to the testimony of PW8, his testimony is also full of contradictions. In his statement u/s 161 Cr.P.C. he has stated that person who was wearing track suit had gave the knife blow to the deceased whereas in his testimony in court, he has stated that accused Ramu @ Panga has gave the knife blows as he has admitted in the cross that accused Ramu @ Panga was wearing white shirt and black pant. Therefore, other person was the assailant who given the knife blow and he again stated in the cross examination that person who was wearing track suit was having knife in his hand. Hence he the changed the version every time.
37. Hence considering the contradictions in the statement of PW8 and inter se contradictions between his testimony and testimonies of other PWs, it would not be safe to rely upon the sole testimony of PW8 to convict the accused without any corroboration.
State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 32 33 Recovery & Pointing Out
38. Prosecution has also relied upon recovery of purse, city bank card, bank slip of SBI bank and slip of Mannapuram Finance Company from the house of accused Ramu situated at Village Bakra PS Bakra, District Jalore, Rajasthan which were affected at the instance of accused Ramu @ Panga in pursuance of his confessional statement ExPW5/B. It is deposed by PW29 that on 24.2.2009 after the arrest of accused he was brought to the PS where in the presence of PW5 Mithlesh, PW26 SI Mukesh Rana accused confessed his involvement in the crime and also stated that from the robbed booty he received Rs.1200/ along with purse of deceased containing papers which he had hidden along with his clothes at the house of his maternal uncle situated at Village Bakra, District Jalore, Rajasthan.
39. As per Order 27 of the Indian Evidence Act, only those portion of confessional statement is admissible in Evidence which led to discovery of any fact. What portion is admissible has been described by Hon'ble Supreme Court in Pulukuri Kottaya V Emperor, AIR 1947 PC 67. Explaining the relationship between State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 33 34 Section 26 and 27 and the ban imposed by Section 26, their Lordships said:--
Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused.
40. It was held in case State of Himachal Pradesh V Jeet Singh, 1991 AD (Cr.) SC 628 as under : State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 34 35 There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
41. In case Bodh Raj V State of J. and K., 2002 (8) SCC 45 it was held as under: Section 27 of the Evidence Act, 1872 (in short State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 35 36 'the Evidence Act') is by way of proviso to Ss. 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by the this Court in Delhi Admn. V Balakrishan (AIR 1972 SC 3) and Md. Inayatullah V State of Maharashtra (AIR 1976 SC 483).
The words "so much of such information" as relates distinctly to the fact thereby fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effects the object of the provision i.e Section 27 was to provide for the State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 36 37 admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police.
Hence, in view of aforesaid provision of law and judgments, only portion of the confessional statement of accused Ramu @ Panga ExPW5/B that 'he kept his clothes and deceased purse in village Bakra, Rajasthan' is admissible in evidence and rest of portion of his confessional statement is to be ignored.
42. PW26 SI Mukesh Rana has stated that after taking police remand on 25.2.09 on the direction of Inspector Yashpal he along with HC Ramesh, Ct. Daya Ram went to village Bakra, Rajasthan and there accused got recovered one polythene bag behind an iron box in a room of the house of his maternal uncle, he found one shirt and one pant of accused which he was wearing at the time of committing robbery. And in the pant he found one red colour purse . On checking the purse it found containing one Citi State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 37 38 Bank card, Bhavisya Nidhi Sanghan Card (EPFO ) on which name of deceased Sanjay was written, and also found one receipt of SBI ATM regarding dt.12.2.09 time 4.46 pm regarding withdrawal of Rs.3000/, one receipt of Mannapuram Finance Ltd. PW18 Ct,Dayaram and PW19 HC Ramesh has corroborated the testimony of PW26. But no one has identified the purse of the deceased Sanjay which was recovered from accused. However, there is no dispute that articles were found in the purse i.e Citi bank card, Employee Provident Fund card and receipt of Mannapuram Finance and ATM receipt were not of deceased. But there is no evidence that deceased was carrying these cards and receipt of Mannapuram Finance at the time when his purse was robbed. The bank statement ExPW14/A and attached sheet of ATM prove that deceased had withdrawn the amount of Rs.3000/ form the ATM on the day of incident i.e 12.2.09 at 4.4.6 pm. In the disclosure statement of accused Ramu @ Panga ExPW5/B, accused has confessed that he was following the deceased from ATM counter to rob him though this part of confessional statement of accused is not admissible in evidence being hit by Section 27 of Indian Evidence State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 38 39 Act. But if, for the sake of argument, I believe that accused and his associate had followed the deceased from SBI ATM and then snatched his purse and which later on came into the share of accused Ramu @ Panga. But I failed to understand, why ATM card by which deceased had withdrawn the amount of Rs.3000/ at 4.46.43 pm was not recovered from the purse seized at the instance of accused. Prosecution has failed to explain where the ATM card of SBI bank has gone. No investigation has been done by the IO on this aspect. If accused can keep the receipts of ATM and Mannapuram Finance and FPFO card which is useless for him and can keep Citi bank card, then why he will throw the SBI ATM card despite the fact that he may knew same can implicate him in the case of murder of deceased. It is not the case of prosecution that any transaction was done with Citi bank card by accused. The answer is simple. All other things which were found in the purse including purse can be procured later on as Citi bank card, EPFO card and Mannapuram slip of deceased might be at home of deceased and slip of withdrawal of Rs.3000/ of the day of incident can be found from the ATM room itself as it is known fact that many State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 39 40 persons after transaction threw the slip or it may be procured later on. But SBI ATM card cannot be planted as it was taken by robber. Non recovery of SBI ATM creates suspicion about the recovery of purse and its articles at the instance of accused. No independent witness has been joined by the prosecution at the time of recovery of alleged articles of deceased. PW26 has stated that he asked the family members of the said home as well as Sarpanch of the village to become witness but they refused. But he failed to explain why he has not given any notice to them. Even if it is believed that public persons were asked to join the investigation and they have refused but I failed to understand why local police official of PS Bakra who accompanied with them to the spot of recovery was not joined as witness. PW26 has neither recorded his statement u/s 161 Cr.P.C. nor has obtained his signature on recovery memo ExPW18/A. Recovery witnesses have not stated that the said police official has also refused to sign. In case, Haish Chander @ Billa V State, 1995 (2) CC Cases Page no.503, which was relied upon by our own High Court in Chander Pal V Sate, 1998 (2) JCC (Delhi) 207 has held that, "the discovery under Section 27 of the Indian Evidence Act in State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 40 41 presence of subordinate police officers when the Investigating Officer is taking his subordinate constable as a witness for the incriminating discovery then the same become very doubtful", Very recently in Kamla Devi V State, 2012 (2) JCC 1457 also it is reiterated that recovery are inconsequential as no independent public witness was associated despite availability. Hence in such circumstances, recovery of articles of deceased from accused is not much inspiring. Moreover no train ticket or warrant regarding the travel of the police official with accused to village Bakra from Delhi by train as claimed by PWs have been placed on record to prove that they traveled village Bakra. Further no departure or arrival DD entry of the either PS Sultanpuri or PS Rajasthan Bakra has been placed on record to prove that the police official i.e PW26 SI Mukesh Rana, Ct. Ramesh, Ct. Daya Ram along with accused have traveled to Village Bakra. In such circumstances i do not find the testimony of Pws18,19 and 26 regarding recovery of article of deceased at the instance of accuse reliable and trustworthy. Hence in such circumstances, I held that there are enough suspicion about the recovery of robbed articles of State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 41 42 deceased at the instance of accused
43. The PW26 has also deposed that clothes of accused has been recovered from Village Bakra at his instance but same has not been shown to any witness to prove that at the time of incident accused Ramu was wearing the said clothes. Moreover FSL report ExPY is also negative as in the report "it is mentioned that no blood was found on the clothes of accused". Hence prosecution has failed to proved that accused was wearing the said clothes at the time of incident. The blood was found only on the track pant recovered at the instance of Raju @ Mehgo (Juvenile) but in my view same is not sufficient to convict the accused Ramu @ Panga as police neither came to know name of Raju through accuse nor he get him arrested. Hence same can not be considered an incriminating circumstances against the accused.
44. As far as pointing out of place of occurrence by accused and preparation of pointing out memo EXPW/ 5A at the instance of accused Ramu is concerned, in my view same is not very material as the place of occurrence was already known to the police.
State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 42 43
45. There is no other incriminating evidence to connect the accused Ramu @ Panga that he has committed robbery with the deceased or participated in stabbing of deceased. Hence, I held that prosecution has failed to prove beyond reasonable doubt that accused Ramu @ Panga along with his associate had committed robbery with deceased Sanjay and stabbed him when he resisted which caused his death later on. Hence, I give benefit of doubt to him and acquit him from the charges of 302/392/34 IPC. Accused is in JC, be released forthwith if not required in any other case. Case property is confiscated to the State. File be consigned to the record room.
Announced in open court (Sanjeev Kumar) on 3.9.2012. ASJ01 (Outer) Rohini, Delhi. State V Ramu @ Panga FIR no. 51/09 PS Sultanpuri Page No. 43