Delhi District Court
State vs . Rakesh @ Commando on 18 July, 2009
1
IN THE COURT OF SHRI S.P.GARG, DISTRICT JUDGE IV
NEW DELHI
S.C.No. 88/07
State Vs. Rakesh @ Commando
s/o Rajinder Singh, r/o A108, Ayur
Vighyan Nagar, New Delhi.
FIR No. 448/2007
U/S 302 IPC
PS: Defence Colony
Date of institution of the case : 18.10.2007
Date when case reserved for orders : 04.07.2009
Date of announcement of judgment : 18.07.2009
J U D G E M E N T:
1. Accused Rakesh @ Commando was arrested by the police of P.S Defence Colony vide FIR no. 448/2007 and was challaned to the court for trial for the commission of offence punishable U/s 302 IPC. In 2 nutshell, the prosecution version as unfolded during trial is as follows:
2. One Kamal Kishore s/o Shyam Lal had arranged a birthday party at his house on 25.7.2007 at A25 Sadiq Nagar, New Delhi. He had invited his friends and relations in the said birthday party. Accused Rakesh @ Commando, deceased Bunti @ Rohit, Naveen, Roshan, Pramod @ Chottu, Virender and Kamal Kishore s/o Dal Chand and others had attended the birthday party. Liquor was also served in the said birthday party. Some of the friends of Kamal Kishore s/o Shyam Lal had consumed liquor.
3. Further case of the prosecution is that in the birthday party accused Rakesh @ Commando was found having a knife in his hand which he was opening 3 and closing. Deepak informed his brother Kamal Kishore s/o Shyam Lal that he should send his friends to their houses. Thereafter Kamal Kishore s/o Shyam Lal asked his friends to go back to their house after having dinner. After about 11 or 11.15 p.m., Bunti @ Rohit (since deceased), accused Rakesh @ Commando and Pramod @ Chottu left the house of Kamal Kishore. When they all reached near Budh Market at some distance away from the house of Kamal Kishore, a scuffle took place between the accused and the deceased. In the said scuffle, accused Rakesh @ Commando stabbed deceased Bunti @ Rohit with a knife on his abdomen and fled away. Pramod @ Chottu went to the house of deceased Bunti to inform his parents. Pramod also informed Virender and Kamal 4 Kishore about the incident.
4. The injured Bunti @ Rohit was removed in a TSR to AIIMS where he was got admitted. D.D No.70B dated 26.7.2007 was got recorded at 3.30 a.m (night) at Police Station Defence Colony by Duty Constable George Kutty who informed that one Bunti had been got admitted by one Kamal Kishore in unconscious state at AIIMS. On receipt of this D.D No.70B, S I Manoj Kumar reached at AIIMS and collected the MLC. The injured Bunti @ Rohit had been declared dead. SI Manoj Kumar made endorsement on DD No.70B and got the present case registered.
5. Further case of the prosecution is that after registration of the case, statements of the concerned witnesses were recorded by Inspector Ashok Kumar 5 who took over the investigation. He along with S I Manoj Kumar, Kamal Kishore, Constable Vir Singh and other staff reached at the spot and inspected the place of occurrence. They found blood lying at the spot. Inspector Ashok Kumar (I.O) summoned Crime Team which on reaching at the spot took photographs of the place of incident. I.O lifted some blood from the spot and prepared necessary pulandhas after sealing the same with the seal of AKT. I.O also lifted earth control and prepared necessary seizure memo. He also prepared rough site plan.
6. Further case of the prosecution is that on 26.7.2007 at about 12 noon accused Rakesh @ Commando was apprehended from Hudco Place, Ansal Plaza. He was interrogated and arrested vide arrest 6 memo. Accused made disclosure statement and in pursuance of his disclosure statement, he took the police party to DMS booth, Sadiq Nagar and got recovered a knife from the bushes there. I.O prepared sketch of the knife which was blood stained. The knife was put in a pulandha and sealed with the seal of AKT and seized vide seizure memo. Thereafter the accused led the police party to the place of occurrence and pointed out the scene of incident. I.O seized the wearing clothes and one pair of shoe of the accused and prepared their seizure memos. On reaching at the Police Station, I.O deposited the case property in the Malkhana.
7. On 26.7.2007 I.O got post mortem on the dead body of the deceased conducted. After post mortem, 7 the dead body was handed over to the brother of the deceased. One love letter was recovered from the pocket of the deceased which was seized vide seizure memo.
8. During investigation the I.O. got sent the exhibits to the FSL and collected the FSL report. He also got recorded the statement of Pramod @ Chottu u/s 164 Cr.P.C. I.O also got prepared the scaled site plan, recorded the statement of relevant witnesses at the relevant stages of investigation and after completion of investigation, filed challan against the accused for the commission of offence punishable u/s 302 IPC in the court of learned M.M.
9. After compliance of the provisions of sections 207 and 208 Cr.P.C the Ld. M.M committed the 8 case to the Court of Sessions.
10. After hearing Ld. Addl. P.P. for the State and Ld. Counsel for the accused, charge U/s 302 IPC was ordered to be framed against the accused by the ld. Predecessor of this court vide order dated 15.11.2007. Accused pleaded not guilty to the charge and claimed trial.
11. In order to substantiate the accusations, the prosecution examined 25 witnesses in all, namely PW1 Kamal Kishore s/o Shri Dal Chand, PW2Umesh, PW3 Pramod Rawat, PW4Naveen, PW5Virender, PW6 Avinash, PW7Smt.Kamlesh, PW8Vikas, PW9Kamal Kishore s/o Shyam Lal, PW10Deepak Kumar, PW11 Arun Kumar, PW12Inspector Ashok Kumar, PW13 H.C.Shyam Lal, PW14Dr.Srividhya, PW15SI Mahesh 9 Kumar, PW16SI Manoj Kumar, PW17 Const.Badri Parshad, PW18 Const.Mohan Singh, PW19 Constable George Kutty, PW20 Dr.Sanjeev Lalwani, PW 21 Const.Prakash Chand, PW22 Inspector Vinod Pal, PW 23 Dr.Rehan Nabi Khan, PW24 Shri Rakesh Pandit ACMM and PW25 Constable Bir Singh.
12. Statement of the accused was recorded U/s 313 Cr.P.C. The accused denied his involvement in the commission of the offence. Plea of the accused is that he has been falsely implicated in this case. He did not stab the deceased; he did not commit the murder of the deceased and he also did not get recover any knife.
13. The accused, however, did not prefer to lead any evidence in his defence.
14. I have heard Ld. Addl. P.P. for the State and 10 Shri S.N.Gaur Ld. Counsel for the accused and have gone through the file.
15. Contention of Ld. Addl. P.P. for the State is that the prosecution has established its case against the accused beyond reasonable doubt. Eye witness Pramod has fully supported the case of the prosecution and there is nothing to disbelieve his positive testimony. There are other circumstances proved on record by the prosecution pointing an accusing finger against the accused.
16. On the other hand learned counsel for the accused has vehemently argued that the prosecution has miserably failed to prove its case against the accused. There are material contradictions, discrepancies and improvements in the testimonies of 11 the prosecution witnesses which make it unsafe to convict the accused. The material prosecution witnesses PW1 Kamal Kishore s/o Dal Chand has not at all supported the prosecution. Similarly PW 2 Umesh, the auto driver also did not support the prosecution. Both these witnesses were got declared hostile by the learned Additional P.P for the State and were cross examined. However, despite cross examination by the learned Addl. for the State, nothing incriminating has been elicited against the accused. The recovery of the knife has not been proved beyond reasonable doubt. There are material contradictions among the PWs regarding time and place of arrest of the accused and recovery of knife at his instance. The FSL reports also did not prove the involvement of the accused in the 12 commission of offence as no blood was detected on the knife or clothes of the deceased.
17. Further emphasis of the learned counsel for the accused is that no reliance can be placed on the testimony of PW Pramod as he exhibited unnatural conduct after the alleged incident of stabbing. He did not intervene in the scuffle and did not remove the injured to the hospital. The present case was got registered on the statement of this alleged eye witness. It shows that PW Pramod was not present at the time of incident and had not witnessed the occurrence. The statement of this witness was recorded under section 164 Cr.P.C after considerable delay. No independent public witness was joined in the investigation at any stage of the investigation. No motive of the accused to 13 murder the deceased has been proved. Time of death of the deceased has not been shown by the doctor in the post mortem report.
18. Learned counsel for the accused has relied upon the authorities reported in 1954 Cr.L.J.905; and (1976) 1 Supreme Court Cases 442. Learned counsel for the accused has also placed on record written submissions.
19. I have considered the arguments of learned Addl. P P for the State and learned counsel for the accused and have scrutinized the testimonies of the prosecution witnesses minutely.
20. The case of the prosecution is being discussed as under: (A) Homicidal death 14 It is not disputed that deceased Bunti @ Rohit met with homicidal death. Only plea of the learned counsel for the accused was not instrumental for the homicidal death of the deceased.
21. Testimony of PW 20 Dr.Sanjeev Lalwani is very material on this aspect. In his testimony, he proved the post mortem report Ex.PW20/A. Post mortem on the dead body of the deceased was conducted by Dr.B.L.Choudhary on 26.7.2007 at about 3.40 p.m. As per post mortem report, 5 injuries in all were found on the dead body of the deceased. Injury No.1 was opined to have been caused by sharp pointed weapon. Cause of death was opined due to haemorrhagic shock due to injury No.1. Injury No.1 was opined sufficient to cause death in the ordinary course 15 of nature. This witness was not cross examined regarding cause of death of the deceased. So the testimony of this witness regarding cause of death has remained unchallenged and unrebutted in the cross examination.
22. Other prosecution witnesses have also testified that the deceased Bunti @ Rohit sustained stab wound on his vital organ i.e. abdomen which resulted in his death despite his removal to AIIMS soon after the incident. PW 23 Dr.Rehan Nabi Khan proved MLC of the deceased prepared by Dr.Umesh T.N. which is Ex.PW23/A. As per this MLC, the patient was brought unconscious, he was not breathing, no pulses were present; blood pressure was not recordable, pupils fixed and dilated; stab injury was present on left of the 16 abdomen with constant oozing of blood. Soon after the injured was brought at AIIMS, he was declared dead.
23. From the above testimony of the expert witness, it stands proved that it is a case of culpable homicide.
(B) Last seen
24. It is not in controversy that on 25.7.2007 PW 9 Kamal Kishore s/o Shyam Lal had organized a birthday party at his residence and the accused had participated there. PW 9 Kamal Kishore in his testimony deposed that on 25.7.2007 he had arranged a party on his birthday. Accused Rakesh @ Commando, deceased Bunti @ Rohit and his other friends had attended the said party. This assertion of PW 9 Kamal Kishore was not denied by the accused in the cross examination. In 17 his statement recorded u/s 313 Cr.P.C, the accused admitted his presence on the night of 25.7.2007 at about 10 or 10.30 p.m at the birthday party of PW 9 Kamal Kishore at A25 Sadiq Nagar. He also admitted presence of PW 1 Kamal Kishore, PW4 Naveen and one Roshan. The accused further admitted in the statement recorded u/s 313 Cr.P.C that in the said party Bunti @ Rohit (since deceased) and Pramod @ Chottu (PW3) had consumed liquor with him. It shows that there is no denial of the presence of deceased Bunti @ Rohit in the said birthday party.
25. The prosecution has further established on record that the accused Rakesh @ Commando (accused present in the court) along with Bunti @ Rohit (since deceased) and PW3 Pramod @ Chottu had left the said 18 party together. PW 1O Deepak Kumar in his deposition before the court deposed that on 25.7.2007 at about 11 / 11.15 p.m. accused Rakesh @ Commando was under
the influence of liquor and he (PW10 Deepak Kumar) had seen a knife in his possession. The accused had attended the birthday party of his brother Kamal Kishore. He told his brother Kamal Kishore that he should send his friends to their houses. Accordingly the friends of his brother Kamal Kishore, had left the house. The witness further testified that the accused and the deceased left their house.
26. In the cross examination this witness stated that there were 2025 persons present in the birthday party.
Some of the friends of Kamal Kishore had taken liquor in the said party. No suggestion was put to this witness 19 in the cross examination that the deceased and accused had not left the party together or that no knife was seen in the possession of the accused by this witness.
27. PW 9 Kamal Kishore has also supported PW 10 Deepak Kumar on this aspect and has deposed that during the party, his brother Deepak told him that accused Rakesh @ Commando was holding a knife and he should send him (Accused) to his house. Thereafter he told all of his friends to go back after having dinner etc. At about 11 or 11.15 p.m. Rohit @ Bunti (since deceased), Rakesh @ Commando (accused present in the court) and Pramod @ Chottu (PW 3) left his house together.
28. This statement of independent witness has remained uncontroverted in the cross examination. 20 No suggestion was put to this witness in the cross examination that the deceased had not left the birthday party of this witness at around 11 or 11.15 p.m. along with deceased Bunti @ Rohit and PW 3 Pramod @ Chottu. The accused did not suggest any other time to leave the birthday party of this witness.
29. PW 3 Pramod @ Chottu has corroborated the version of both PW 9 Kamal Kishore and PW 10 Deepak Kumar on this aspect. He also testified that he along with Bunti (since deceased) and Virender had gone at the birthday party of his friend Kamal Kishore and had reached there at about 9 p.m. Other friends of Kamal Kishore including Rakesh @ Commando (accused present in court) were also present in the said party. Accused Rakesh @ Commando was having a knife. He 21 informed 'Johny', the elder brother of Kamal Kishore about that fact who disclosed that to Kamal Kishore also. Rakesh @ Commando ( accused) and Bunti (since deceased) were sent back by Kamal Kishore. In the cross examination of this witness on this aspect, the witness denied the suggestion of learned counsel for the accused that he had gone to call the accused before going to attend the party and that the accused had refused to come along with him saying that he would come only when 'Johny' called him. This witness further stated that he had gone to the party along with deceased Bunti @ Rohit to whom he knew for the last 5 6 years. Accused Rakesh @ Commando was also known to him for the last 56 years. He had no dispute or fight either with Bunti @ Rohit or with Rakesh @ 22 Commando. The witness further fairly admitted that he had participated in the drink party and had also danced there. Accused Rakesh @ Commando was having a knife and he had seen the knife with accused Rakesh @ Commando. Kamal Kishore who was hosting the party had told him, Rakesh @ Commando and Bunti @ Rohit to go from his house as they all were from the area of Ayur Vighyan Nagar. Another suggestion was put to this witness in the cross examination that he (PW 3 Pramod) had stopped to purchase 'gutka' from a vendor and on seeing him, Rakesh @ Commando had also come to purchase 'gutka' and Bunti had moved ahead towards Budh Bazar. Another suggestion was put to this witness that Rakesh @ Commando (accused present in the court) after taking 'gutka' before him had 23 also proceeded towards the market. These suggestions put by the learned counsel for the accused to the witness support his version that he along with the deceased and the accused had left the party together at about 11 or 11.15 p.m and had reached near Budh Bazar. No suggestion was put in the cross examination that accused and deceased had not left the party of PW 9 Kamal Kishore together.
30. PW 1 Kamal Kishore another friend of PW 9 Kamal Kishore present in the birthday party, though hostile on some facts, has nonetheless supported the prosecution regarding the presence of the accused and possession of knife in his hand in the birthday party. This witness also testified that accused Rakesh @ Commando, deceased Bunti @ Rohit and one Pramod 24 had consumed liquor in the birthday party of Kamal Kishore. Accused Rakesh @ Commando was having a knife in his hand which he was opening and closing. Brother of Kamal Kishore namely 'Johny' informed them that Rakesh @ Commando was having a knife and had also consumed enough liquor. So Rakesh @ Commando, Bunti @ Rohit and Pramod @ Chottu were requested by 'Johny' to leave the party and go and thereafter they all left. After about 1015 minutes he and PW Naveen also left for their houses.
31. This witness was not cross examined on these facts by the learned defence counsel. No suggestion was put to this witness in the cross examination that the accused had not left the birthday party along with deceased Bunti @ Rohit and PW 3 Pramod @ Chottu. 25
32. Cogent and reliable testimonies of all these prosecution witnesses establish beyond doubt that accused Rakesh @ Commando, deceased Bunti @ Rohit and PW 3 Pramod @ Chottu all had participated in the birthday party of PW 9 Kamal Kishore. All these persons had consumed liquor in the party. It further stands proved that all these three persons had left the birthday party together at about 11 or 11.15 p.m when all these persons were found under the influence of liquor and accused Rakesh @ Commando was found having a knife in his hand. Anticipating any untowards incident, it seems that PW 9 Kamal Kishore on the advice of his brother PW 10 Deepak asked all these persons to go to their respective houses.
33. It has further come on record that the 26 deceased Bunti @ Rohit was stabbed soon thereafter near Budh Bazar, a short distance from the house of PW 9 Kamal Kishore. The prosecution has thus established that accused was last seen with the deceased prior to the stabbing incident.
34. No evidence to the contrary has been proved on record by the accused. Accused did not explain as to how and under what circumstances he left the company of the deceased Bunti @ Rohit and PW 3 Pradeep @ Chottu after departure from the house of PW 9 Kamal Kishore with them. Accused did not explain after covering how much distance from the house of the complainant he parted from the company of the deceased and how he and the deceased took their respective journey to their respective houses. 27
35. The circumstance of last seen of the deceased with the accused stands established beyond reasonable doubt.
(C) Stabbing Incident.
36. Case of the prosecution is that after the accused along with the deceased and PW3 Pramod @ Chottu left the house of PW 9 Kamal Kishore and reached near Budh Market, a scuffle took place between the accused and the deceased and accused stabbed the deceased with a knife on his abdomen as a result of which deceased sustained serious injuries and was removed to AIIMS.
37. Material testimony to establish this circumstance is that of PW 3 Pramod @ Chottu. He appeared as a witness and testified on oath that a 28 scuffle took place between the accused Rakesh @ Commando and Bunti @ Rohit regarding who was the 'badmash' etc. Then accused Rakesh @ Commando took out a knife and hit that knife on the stomach of Bunti from which blood started oozing out. He left the place. Outside the house, he informed Virender and Kamal Kishore about the incident of stabbing which took place on the main road. Virender and Kamal Kishore went towards injured Bunti. He himself went at the house of Bunti and informed Vikas, brother of the deceased about the incident. Thereafter, he came to AIIMS and came to know that injured Bunti had expired.
38. This witness was cross examined on these facts by the learned counsel for the accused. In the cross 29 examination, the witness admitted that there used to be fight between the boys of Ayur Vighyan Nagar and Sawal Nagar many times. He expressed his ignorance if any quarrel had taken place between Kamal, Johny and Sunil. The witness fairly admitted that a letter was recovered from the pocket of Bunti and it was a love letter of a girl. The witness however denied that there was a fight on account of that letter prior to the date of incident. The witness further stated that when they came out, the Budh Bazar was already over and nobody was present there. The witness denied the suggestion that at that time the weekly market was not completely over and there were many people standing around, buying things and moving around. The witness further denied the suggestion that he did not witness Rakesh 30 stabbing Bunti with knife. The witness reiterated that he was 56 steps away at the time of incident. He further admitted the suggestion of learned counsel for the accused that as soon as he saw Rakesh stabbing Bunti, he went out to tell Virender and Kamal Kishore. He first told Kamal Kishore and Virender who were also in the party and thereafter he went to inform the relations of Bunti. He further stated that he did not try to save Bunti at that time as he was perplexed and confused and for that reason did not raise voice. He reached at AIIMS at about 11.45 p.m.
39. Overall deposition of this witness on the circumstance of stabbing reveals that material facts asserted by this witness have remained unchallenged. Nothing substantial has been elicited in the cross 31 examination to destroy the credibility of his version. Presence of this witness at the spot at the time of stabbing incident has not been denied in the cross examination. Presence of the accused at the time of stabbing of the deceased has also not been denied. Accused did not claim himself to be present at any other specific place at the time of incident. Sustaining of injuries by the deceased soon after departure from the house of PW 9 Kamal Kishore, with a knife has also not been controverted in the cross examination. No ulterior motive was assigned to this witness to falsely depose against the accused.
40. No material contradictions and discrepancies have been elicited in the cross examination of this witness regarding the incident of stabbing by the 32 accused. In the absence of any prior ill will or enmity, this independent witness has no axe to grind to falsely ropein the accused and to let the real culprit go scot free. It has come on record that this witness was known to both the accused and deceased prior to the incident. This witness along with deceased and accused was also common friend of PW9 Kamal Kishore and they all had participated in his birthday party. In his cross examination PW 3 Pramod categorically asserted that both Bunti and Rakesh were known to him for the last 56 years. He had no old dispute or fight either with Bunti or with Rakesh. No serious enmity was alleged by the accused in the cross examination of this witness prompting him to depose against him. Other prosecution witnesses examined by 33 the prosecution also did not utter a word if there was any previous enmity between the accused and this witness. This witness thus can't be termed as interested or partisan witness to support the prosecution and to make deposition falsely against the accused.
41. This witness in specific words testified that a scuffle took place between the accused and the deceased and in that scuffle the accused stabbed the deceased on his abdomen with a knife. In the cross examination, accused did not deny possession of knife in his hands. Rather PW 10 Deepak Kumar brother of PW 9 Kamal Kishore categorically deposed in his statement before the court that in the birthday party at about 11 or 11.15 p.m. on 25.7.2009, he had seen a knife 34 in possession of accused Rakesh @ Commando. Since the accused Rakesh @ Commando was under the influence of liquor and was having a knife in his possession, this independent witness, brother of the host, had advised him to send his friends to their respective houses. It shows that PW 10 Deepak had anticipated some confrontation to take place among the friends of his brother in the birthday party.
42. In the cross examination of PW 10 Deepak Kumar @ Johny, no suggestion was put that accused was not having any knife. No enmity was attributed to this witness in the cross examination to falsely claim that the accused was having a knife in his hands in that birthday party.
43. PW1 Kamal Kishore s/o Dal Chand though 35 has turned hostile on some facts has nevertheless supported PW 10 Deepak Kumar and has corroborated his version stating that the accused who is also known as Commando was having a knife in his hand to which he was opening and closing. Brother of Kamal Kishore i.e. PW 10 Deepak @ Johny informed that Rakesh @ Commando was having a knife and had also consumed enough liquor. Even in the cross examination of this witness no suggestion was put that accused Rakesh was having no knife whatsoever in his possession. PW 9 Kamal Kishore also supported the prosecution and deposed that he was informed by his brother Deepak that accused Rakesh was having a knife and he should be sent to his house. Only thereafter PW 9 Kamal Kishore told all his friends to go back to their houses 36 after having dinner etc. In the cross examination nothing was suggested to this witness that his brother Deepak had not informed him about the knife in possession of the accused.
44. The testimonies of all these witnesses clearly establish that accused was having a knife in his possession even in the birthday party. Possession of knife in his hand and the factum of his under influence of liquor has forced the host to ask the accused along with deceased and PW Parmodh to go to his house. This circumstance of accused having a knife in his possession lends credence to the version of this witness PW 3 Pramod whereby he categorically asserted that the deceased was stabbed with a knife by the accused.
37
45. Other circumstances proved on record by the prosecution further show PW 3 Pramod @ Chottu to be a reliable witness. In his examinationinchief, PW3 Pramod testified that after the stabbing incident outside the house on the main road, he informed PW5 Virender and PW9 Kamal Kishore about the incident. Thereafter he went at the house of the injured Bunti and informed his brother Vikas.
46. PW 5 Virender in his deposition before the court deposed that after about 15 or 20 minutes of the departure of the accused along with the deceased and Pramod, Promod came in the house of Kamal Kishore and informed him that Rakesh had stabbed Bunti with a knife and thereafter he along with Kamal Kishore and another boy Nanak reached at the spot where Bunti was 38 lying on the road on the partri. He and Kamal Kishore removed Bunti in a TSR and took him to AIIMS. In the cross examination, this assertion of the witness was not denied and no suggestion was put that PW3 Pramod had not informed him and Kamal Kishore about the stabbing incident and had not named the accused.
47. Similarly PW 10 Deepak testified that after the party when the tents were being removed, he saw some persons running towards the road. When he was going to see as to what was the matter, one boy namely Pramod @ Chottu came from his front direction and told him that the accused Rakesh had stabbed Bunti with a knife. Again this witness was not cross examined on this aspect by the learned counsel for accused.
48. PW 8 Vikas, brother of the deceased, has 39 also supported the prosecution on this aspect and has deposed that at about 12 mid night Pramod came to him and told him that accused Rakesh @ Commando had stabbed his brother Rohit. He along with Pramod reached AIIMS and was informed by doctor that Rohit had already expired. In the cross examination nothing was suggested to this witness if he had not come to know about the stabbing incident from PW Pramod.
49. The testimonies of the above witnesses referred above, support the version given by PW 3 Pramod that soon after the stabbing incident he rushed to inform PW5 Virender and PW9 Kamal Kishore at the house of Kamal Kishore which was at a short distance from the place of occurrence. Thereafter PW3 Pramod went to inform the family members of the deceased. This 40 conduct of the eye witness PW3 Pramod is quite natural and makes his presence at the spot highly probable. Simply because this witness failed to intervene at the time of stabbing incident and did not attempt to save Rohit from the stabbing injury, otherwise cogent and trustworthy testimony of this eye witness cannot be brushed aside. The witness has clarified that at the time of stabbing incident, he was at a distance of 56 steps from the accused and the deceased and possibly thus was not capable to save the deceased from the stabbing injury inflicted by the accused. Moreover, the scuffle had taken place at the place of incident all of a sudden and both the accused and deceased had participated in the birthday party and no untoward incident had taken place there, it was highly impossible 41 for the witness Pramod to anticipate the infliction of stab injury by the accused on the person of the deceased to intervene to save him.
50. The timing of the incident narrated by PW 3 Pramod are in consonance with the medical documents. Medical evidence on record does not negate prosecution case. PW 9 Kamal Kishore disclosed in his testimony that at about 11 or 11.15p.m the accused and the deceased along with Pramod had left his house. After some time, he came to know that accused Rakesh @ Commando had stabbed Rohit with a knife. It shows that the occurrence had taken place soon after about 15 minutes and when the deceased etc. had left the house of PW 9 Kamal Kishore. PW 1 Kamal Kishore and PW 4 Naveen also in their statements before the court stated 42 that they left the house of their host after about 10 or 15 minutes and when they were on their way, they saw a crowd of people near Budh Bazar. They saw Bunti lying on the road. He was requested to bring an auto. He brought an autorickshaw and in that auto rickshaw injured Bunti was removed to AIIMS. In the cross examination by the learned Additional P.P. for the State, this witness further admitted that they tried to move Bunti. PW 4 Naveen also stated that PW 1 Kamal Kishore who was accompanying him, brought an auto rickshaw. He requested PW 1 Kamal Kishore to take Rohit to AIIMS and he (Naveen) went and informed mother of Rohit regarding the injuries. He with the mother and brother of Rohit reached thereafter at AIIMS. PW 5 Virender also testified that he and Kamal Kishore 43 removed Bunti in a TSR to AIIMS. All these statements corroborate the version of PW 3 Pramod that the stabbing incident had taken place near the house of PW9 Kamal Kishore after about 10 15 minutes prior to 12 'O' clock (night).
51. MLC of deceased Rohit Ex.PW23/A was prepared. Name of PW 9 Kamal Kishore resident of A 40/B, Sawal Nagar finds mention there to be the name of the relative or friend who had brought the injured/deceased to the hospital. The timings of arrival of the patient has been recorded in the MLC as 00.11 hours. The injury narrated by PW3 Pramod sustained by the deceased on his abdomen finds mentioned in the MLC Ex.PW23/A. The contents of this MLC regarding time of arrival of the patient and the person who had got 44 him admitted there have remained unchallenged in the cross examination. PW 19 Constable George Kutti also th th deposed that on the intervening night of 25 /26 July 2007, he was posted as Duty Constable at AIIMS. On that day one Kamal Kishore got admitted injured Bunti and he (PW19) informed Duty Officer, Police Station Defence Colony about the admission vide DD No.70B. The injured was declared dead and he informed the Duty Officer about the death of Bunti vide DD No.77B. Rukka was prepared after DD No.70B (Ex.PW16/A) was recorded at 3.30 a.m at Police Station Defence Colony after the Duty Officer at AIIMS informed about the admission of injured Bunti at AIIMS. Rukka was sent at about 5.30 a.m. itself to get the present case registered.
52. The timings regarding stabbing incident as 45 narrated by PW 3 Pramod have been thus proved by oral and medical evidence which makes the testimony of PW 3 Pramod more reliable.
54. Statement of this witness was got recorded during investigation u/s 164 Cr.P.C. PW 24 Shri Rakesh Pandit the then learned M.M proved the statement u/s 164 Cr.P.C recorded by him on 23.8.2007. The statement u/s 164 Cr.P.C is Ex.PW24/B and the certificate regarding correctness of the proceedings is Ex.PW24/C. In the statement recorded u/s 164 Cr.P.C again PW 3 Pramod gave detailed account as to how and under what circumstances, he along with the deceased and accused had left the house of Kamal Kishore and how the scuffle took place between the accused and the deceased and how the deceased was stabbed with a 46 knife on his abdomen by the accused. The witness gave detailed account of the entire incident and specifically named the accused who had stabbed the deceased with a knife. This witness thus supported the version given by him in the statement recorded u/s 161 Cr.P.C and while appearing as PW 3 this witness proved the contents of the statement recorded u/s 164 Cr.P.C without any deviation. The evidence of PW3 Promod does not suffer from any deficiency.
54. All the other prosecution witnesses including PW4Naveen, PW5Virender, PW6Avinash, PW7Smt.Kamlesh, PW8Vikas, PW9Kamal Kishore s/o Shyam Lal, PW10Deepak Kumar and even PW12 Inspector Ashok Kumar all had come to know about the name of the accused to be the culprit who had stabbed 47 the deceased with a knife soon after the incident. All these witnesses are not expected to conspire against the accused to name him to be the culprit. The stabbing incident has been established by the prosecution beyond doubt and is a material circumstance to establish the involvement of the accused.
(D) Recovery of knife.
55. The next reliance of the prosecution to prove the guilt of the accused is on the circumstance of recovery of weapon of offence i.e. knife at the instance of the accused. Case of the prosecution is that in pursuance of the disclosure statement, accused got recovered knife Ex.P1 used in the commission of offence from the bushes behind DMS Booth. Learned 48 counsel for the accused has denied the recovery of any such knife at the instance of the accused.
56. On perusal of the evidence led by the prosecution on this aspect, I am of the considered view that the prosecution has miserably failed to establish this circumstance beyond reasonable doubt. There are material contradictions in the testimonies of the prosecution witnesses on this aspect. PW16 SI Manoj Kumar in his examination in chief testified that accused made disclosure statement Ex.PW12/C after his apprehension and he disclosed that he could get recover the knife used in the offence. Accused took them to DMS booth, Sadiq Nagar and got recovered a knife from the bushes near DMS booth. It was blood stained. Sketch of the knife Ex.PW3/C was prepared and 49 the knife was sealed in a pulandha with the seal of AKT and taken into possession vide memo Ex.PW12/D. In cross examination this witness was confronted with his statement Ex.PW12/DA recorded by the I.O. In his statement recorded u/s 161 Cr.P.C Ex.PW12/DA, the witness did not if the accused led the police party behind bushes near DMS booth or that he got recovered any knife from there.
57. PW 12 Inspector Ashok Kumar I.O of the case also supported PW 16 SI Manoj Kumar and deposed about the recovery of knife by the accused after his apprehension from the bushes near DMS booth. In the crossexamination, the witness admitted that he had recorded statement of SI Manoj Kumar and PW Pramod and they had stated in their statements that 50 the accused had got recovered a knife from behind the bushes near DMS Booth. This witness had confronted with statements Ex.PW3/DA and Ex.PW12/DA where it was mentioned that the knife was recovered from the pocket of the accused at the time of his search. The prosecution has failed to reconcile this material improvement made by the prosecution witnesses in their testimony before the court. In their statement recorded u/s 161 Cr.P.C both PW3 Pramod and PW 16 SI Manoj Kumar categorically stated that the knife was recovered from the pocket of the pant of the accused at the time of his search after his apprehension. There is no mention in the statement recorded u/s 161 Cr.P.C of both the witnesses, if the accused led the police party to bushes near DMS booth or got recovered any knife 51 from there.
58. In his deposition as PW 3 Pramod merely stated that a knife was recovered from the possession of the accused which was taken by the police. He did not testify in his examination in chief that the accused had led the police party to bushes behind DMS booth in pursuance of the disclosure statement and had got recovered the knife Ex.P1 from there. In the cross examination this witness come up with the plea that the knife was recovered at the instance of the accused from the bushes near DMS booth. However the witness failed to explain as to how in his statement recorded u/s 161 Cr.P.C (Ex.PW3/DA) he had mentioned that the knife was recovered from the pocket of the pant of the accused after his apprehension.
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59. No independent public witness at the spot was joined by the I.O at the time of alleged recovery of knife from bushes behind DMS booth. Disclosure statement Ex.PW12/C allegedly made by the accused does not bear signature of PW 3 Pramod. The seizure memo of the knife Ex.PW12/D also does not contain signature of PW 3 Pramod. Had PW 3 Pramod been present at the time of recovery of the knife behind DMS booth, the I.O must have got his signature on the seizure memo Ex.PW12/D. Sketch of the knife Ex.PW3/C however contains the signature of PW3 Pramod. I.O has failed to explain as to why he preferred to get signature of PW 3 Pramod on the sketch and not on the seizure memo.
60. Moreover, case of the prosecution is that this 53 knife Ex.P1 used in the commission of offence was blood stained at the time of its seizure. However, FSL report produced on record by the prosecution contradicts this plea of the prosecution. As per FSL report Ex.PW12/J, blood could not be detected on exhibit 5 i.e. the knife. So it cannot be said with certainty that it was the knife Ex.P1 which was used in the commission of the offence. Moreover, during investigations this knife Ex.P1 was never shown to the doctor who had conducted postmortem on the dead body of the deceased to infer if the injuries on the person the deceased were possible with the weapon recovered at the instance of the accused. Even when PW 20 Dr.Sanjeev Lalwani appeared in the witness box to prove the post mortem report prepared by 54 Dr.B.L.Choudhary Ex.PW20/A, he was not shown the knife Ex.P1 to seek his expert opinion if injuries on the person the deceased were possible with knife Ex.P1.
61. All these facts and circumstances referred above show that the prosecution has failed to prove that knife Ex.P1 was got recovered by the accused in pursuance of a disclosure statement or that it was the same knife which was used in the commission of the offence. The prosecution has failed to establish this circumstance.
(E) Recovery of clothes of the accused
62. Case of the prosecution is that at the time of apprehension of the accused, blood was detected on his clothes which he was wearing at that time. The wearing clothes i.e. Tshirt and Jeans and one pair of shoes of 55 the accused were seized vide seizure memo Ex.PW3/E.
63. On scrutinizing the testimonies of the prosecution witnesses, it stands established that T shirt Ex.P4, jeans pant Ex.P5, pair of shoes Ex.P6 seized in this case belong to the accused. Accused did not deny that these articles did not belong to him or were not seized by the police at the time of his arrest. However, mere seizure of these articles from the possession of the accused is not sufficient to connect him with the commission of the offence. The FSL reports did not support the prosecution if these articles belonging to the accused were having any blood. FSL report Ex.PW12/J discloses that exhibit 9 (Tshirt of the accused); exhibit 10 (Jeans of the accused) and exhibit 11 shoes of the accused did not exhibit any blood. So 56 the prosecution has failed to prove that the clothes of the accused which he was wearing at the time of incident were blood stained or it was the blood of the deceased. PW 3 Pramod in his examination in chief did not depose if the clothes of the accused were blood stained at the time of his apprehension. So recovery of the clothes and shoes of the accused are not an incriminating piece of circumstances against the accused.
(F) Motive
64. Next circumstance relied upon by the prosecution to establish the guilt of the accused is that the accused had motive to murder the deceased as there was previous enmity between the two. Prosecution has examined PW 6 Avinash, brother of the 57 deceased, PW7 Smt.Kamlesh mother of the deceased and PW 8 Vikas another brother of the deceased to prove enmity between the accused and the deceased. In their deposition before the court, all these witnesses stated that the accused Rakesh @ Commando used to threaten the deceased to leave the locality and had extended threats to him. There used to be enmity between the accused and the deceased. The deceased had ignored the threats extended by the accused considering the same to a small matter. Accused has denied if he was nurturing any ill will against the deceased.
65. Scanning the testimonies of the prosecution witnesses , I am of the view that prosecution has failed to prove beyond doubt that there was previous enmity 58 between the accused and deceased so acute as to force the accused to commit his murder. Only for the first time in their statements before the court, all these prosecution witnesses who are closely related to the deceased have come up with the plea that there used to be threats by the accused to the deceased. However, at no stage, prior to the occurrence, any complaint was ever made by the deceased or his family members against the accused for extending any such threats. Again these prosecution witnesses did not complain regarding the conduct and behaviour of the accused to his family members or to his common friends. On the fateful day of incident the accused and the deceased both had participated in the birthday party of their common friend PW 9 Kamal Kishore. No quarrel had 59 taken place between the accused and the deceased in the birthday party. Accused had not extended any threat to the deceased at that time. Rather accused along with the deceased and PW3 Pramod had departed from the house of PW 9 Kamal Kishore together to go to their respective houses after the party was almost over. Had the deceased any apprehension at the time of departure at the hands of the accused about his murder, he must not have departed from the house of their host along with him. Number of witnesses have been examined by the prosecution who were common friends of both the accused and the deceased. None of them has testified in their deposition before the court if at any time, prior to the occurrence, there used to be any enmity between the two forcing the 60 accused to take extreme step. So the prosecution has failed to establish if the accused had planned in advance to commit murder of deceased due to any previous enmity.
66. Testimony of PW 3 Pramod is material when he stated in his examination in chief that on the way after departure from the house of PW 9 Kamal Kishore, a scuffle took place between the accused and the deceased as to who was the 'Badmash'. This scuffle led the accused to stab the deceased on his abdomen.
67. The prosecution has thus failed to establish prior motive of the accused to commit murder of the deceased.
(H) Conduct of the accused
68. Conduct of the accused soon after the 61 incident also is an additional link to establish his guilt. Admittedly accused had departed along with the deceased and PW 3 Pramod from the house of PW 9 Kamal Kishore. After about 15/20 minutes the incident of stabbing took place. Accused has failed to explain as to how and under what circumstances deceased Rohit sustained injuries or who else had caused the injuries. Accused did not explain his presence at any other specific place soon after the incident. There is nothing on record in the statement of the accused recorded under section 313 Cr.P.C as to where else he had reached soon after the incident or where he was present at the time the deceased sustained injuries. Had the injuries been caused to the deceased by some one else, the accused must not have absconded from 62 the spot and in that eventuality must have removed the injured to the hospital or must have informed the family members of the deceased. Accused did not examine any member from his family to show as to when and at what time he reached at his house after the incident. The circumstances of abscondance after the occurrence is additional incriminating piece of evidence against the accused.
(I) Conclusion
69. Taking into consideration all the above circumstances established by the prosecution, I am of the view that the prosecution has proved that it was the accused who caused fatal injury on the vital organ of the deceased with a knife. Non recovery of the weapon of offence is not fatal to the case of the prosecution. 63 There is overwhelming evidence on record to show that the injuries sustained by the deceased were caused with a sharp edged weapon i.e. the knife. It was for the accused to explain the whereabouts of the weapon with which the injuries on the person of the deceased were inflicted. Merely because the accused, did not get recover the weapon of offence it will not help him to seek acquittal on that score as it was within his special knowledge as to where the weapon of offence was.
70. It is also well settled that in case of ocular / direct testimony, prosecution is not required to prove the motive of the incident. Motive plays a significant role mainly in circumstantial evidence. In the present case, there is direct testimony of eye witness who had seen the accused inflicting fatal injury on the person the 64 deceased.
71. In the statement recorded u/s 313 Cr.P.C accused did not give plausible explanation to the incriminating circumstances appearing against him. He did not adduce any evidence in defence to show that any incriminating circumstance appearing against him is false and fabricated. He did not examine any witness in his defence to show his innocence or to establish his presence at some other particular place.
72. I do not subscribe to the contention of the learned counsel for the accused that there are material contradictions and discrepancies in the testimony of prosecution witnesses and benefit of doubt should be given to the accused. It is well settled law that minor contradictions, discrepancies, improvements and 65 exaggerations are not fatal to the case of the prosecution as these do not go to the root of the case. Irrelevant details which do not in any way corrode the credibility of a witness cannot be levelled as omission or contradiction. (AIR 2007 SC 2257). There is no substance in the plea of learned defence counsel that prosecution case should not be believed as PW 1 Kamal Kishore has not supported the prosecution. It is true that PW 1 Kamal Kishore has not fully supported the prosecution regarding presence of the accused and exhortation by the accused at the spot. However, this witness cannot be permitted to sabotage the case of the prosecution simply because he did not opt to support the prosecution on all facts. There is other cogent and reliable evidence on record to prove the guilt of the 66 accused. So even if the evidence of PW 1 Kamal Kishore on the facts on which he did not support the prosecution is ignored, the evidence on record is enough to nail the accused.
73. The prosecution was thus established that fatal injury on the person deceased Rohit was caused by the accused. The deceased subsequently succumbed to the injuries sustained by him.
(J) Intention
74. Learned counsel for the accused has argued that there was no intention of the accused to commit murder of the deceased. The deceased had suffered only one single stab blow and it does not prove that the accused had intended to commit murder of the deceased.
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75. I do not subscribe to this plea of the learned counsel for the accused. Intention on the part of a person to commit murder must be gathered from the back drop of events and the circumstances attending to. It has come on record that the accused was having a deadly weapon in his possession. Even in the birthday party, the accused was seen having a knife in his hands which he was opening and closing. Accused has failed to explain the purpose to keep a deadly weapon in his possession without any justification particularly when the purpose of the visit was to participate in a birthday party of his friend. It has further come on record that on the way, a scuffle took place between the accused and the deceased. The deceased was unarmed at that time and the accused 68 was having a knife in his possession. The deceased was not aggressor. In the said scuffle the accused intentionally took out the knife lying in his pocket and stabbed the deceased on his vital organ i.e. abdomen. The injury caused proved fatal and despite immediate medical aid made available to the deceased at AIIMS, he could not recover. It shows the impact/force with which the accused had stabbed the deceased. There was an intention to inflict that particular bodily injury that is to say that it was not accidental or unintentional or that some other kind of injury was intended. Moreover, after infliction of the fatal blow, the accused absconded from the spot and did not bother to remove the injured Rohit to hospital to provide him medical aid. Had the accused not intended to cause that fatal injury to the 69 deceased, he must have intervened to remove the deceased to the hospital for medical aid.
76. The injury sustained by the deceased was opined sufficient to cause death in the ordinary course of nature. All these facts and circumstances prove that at the time of infliction of the fatal blow the accused had intended to commit murder of the deceased.
77. The law regarding single blow is also very clear. Infliction of simple injury by itself not a relevant factor to hold that the accused had no intention to cause murder of the deceased. In the case of Mannu Bhai Atta Bhai vs. State of Gujrat reported in 2007 SC 2347 , the Hon'ble Supreme Court converting the conviction under section 304 Part 1 of the IPC into section 302 of the IPC observed as under: 70 " The nature of intention has to be gathered from the kind of weapon used, the part of the body and the circumstances attendant upon death. In the instant case, the accused had used a knife the blade of which had a length of 6 inches. The injury was caused just below the stomach and had affected a vital part i.e. liver. Knife had gone as deep as 6 inches in the body which clearly is indicative of the fact that blow was given with great force and the outcome of the injury was that the deceased expired instantaneously."
"The Hon'ble Supreme Court further observed that merely because a single blow was given does not automatically bring the application of section 304 Part 1 of the IPC. "71
(K) Result
78. On analysis of the factual scenario and on applying the principles of law stated above, the inevitable conclusion is that the prosecution has proved its case against the accused for the commission of murder of the deceased Rohit, punishable under section 302 IPC beyond reasonable doubt. Accused is accordingly held guilty under section 302 IPC and is convicted.
Announced in open court dated 18/7/2009 ( S.P.GARG ) DJIV / ND