Delhi District Court
State vs . on 7 December, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1.Akhil Pathak
S/o Sh. Arvind Prakash
R/o K219, Gali No.4, Gautam Vihar,
3 ½ Pushta, New Usmanapur, Delhi.
2. Nagender
S/o Sh. Rajbir Singh
R/o Village Balalpur, P.S. Nasirpur,
Distt. Firozabad ( U.P.) (Proclaimed Offender)
3.Shyam Prasad @ Sampat
S/o Sh. Jait Singh
R/o Village Balalpur, P.S. Nasirpur,
Distt. Firozabad ( U.P.) (Proclaimed Offender)
FIR No.: 180/2006
U/ ss 393/394/398/302/120B/34 IPC
Police Station : New Usmanpur
Sessions Case No. : 57/2011
Date of Institution of case : 20.9.2006
Date on which assigned to this court : 28.09.2011
Date on which reserved for Judgment : 26.11.2011
Date of Judgment : 7.12.2011
Sessions Case No.57/2011 Page1/26
2
JUDGMENT:
In brief the facts of the case are that on 22.5.2006 a call was received in Police Station New Usmanpur through wireless from PCR that at 4th Pushta Kartar Nagar that two persons had run away from the spot after firing on a person. On this information DD No. 9A was registered and was handed over to S.I. Virender Singh. On this information, SI Virender Singh along with Constable Satish reached at the spot at 4th Pushta, Kartar Nagar. There, no eye witness met them and SI Virender Singh came to know that injured had already been taken to GTB Hospital. They reached at GTB Hospital where Aram Singh was found admitted with alleged history of gun shot injury. SI Virender Singh collected the MLC of the injured on which he was declared fit for statement. Smt. Mithlesh wife of the injured Aram Singh also met the police in the hospital, who made her statement to SI Virender Singh.
Smt. Mithlesh has stated in his statement that about four months ago, her husband had sold their house to Vishram Singh. On 22.5.2006 she along with her husband Aram Singh had gone to the house of property dealer Ram Niwas in Street No.8, Kartar Nagar for taking the payment. At about 10.30 a.m. she along with her husband Aram Singh were going from the house of property dealer Ram Niwas, obtaining the payment of Rs.4,50,000/ in a bag. When they reached near Ganda Nala near Sessions Case No.57/2011 Page2/26 3 Kartar Nagar, 4th Pushta, two boys aged about 2020 years, medium built, came there. One of them was wearing black pant and black shirt and the second was wearing check shirt. They tried to snatch the bag from her husband. Her husband pushed them by leg blow. The bag fell down on the earth from the hand of her husband and then she picked up the bag after running. She further stated that in the meantime, the boy who was waring black clothes, took out a katta and fired on her husband. Thereafter, both the boys fled away in the street and she could identify of both them on seeing them.
Thereafter, SI Virender Singh put his endorsement on the statement of Smt. Mithlesh, prepared rukka and sent Constable Satish to the police station for the registration of the FIR, who got the case registered u/ss 393/394/397/34 IPC vide FIR No. 180/06 at P.S. New Usmanpur.
During investigation, SI Virender Singh seized the blood stained clothes of the injured Aram Singh from the hospital, recorded statement of injured Aram Singh and prepared site plan.
Aram Singh in his statement stated that on the fateful day at about 10.15 a.m. when he and his wife had gone some distance from the house of property dealer, carrying the payment of Rs.4,50,000/ in a bag. Akhil Pathak was standing at some distance in a street with Nagender and Shyam Partap. When they Sessions Case No.57/2011 Page3/26 4 were proceeding on foot via 4th Pushta road towards Indra Puri, Loni, Sampat tried to snatch his bag and Nagender fired at him. He further stated that in the meantime, his neighbour namely Romi Dubey tried to catch hold the culprit. Sampat again opened a fire. Thereafter both the boys fled away from the spot. He knew Nagender and Sampat.
Thereafter, the investigation was handed over to SI Lal Sahab. During investigation on 24.5.2006 accused Akhil Pathak was arrested by the IO SI Lal Sabab and his disclosure statement was recorded.
On 25.6.2006 injured Aram Singh expired in the hospital. He prepared inquest proceedings, got conducted the postmortem on the dead body of injured Aram Singh. After the postmortem on the dead body of deceased, it was handed over to the relatives of deceased. Thereafter, sections 302/120B IPC were added in the FIR, on the basis of the statement of deceased Aram Singh and disclosure statement of the accused Akhil Pathak. The other two accused Nagender and Shyam Pratap @ Sampat could not be arrested. Thereafter the investigation was handed over to Insp. Dinesh Sharma. Accused Nagender and Shyam Pratap who were absconding were got declared proclaimed offender.
After completion of investigation, challan was filed in the court against accused Akhil Pathak for the offences Sessions Case No.57/2011 Page4/26 5 punishable under sections 393/394/398/302/120B/34 IPC.
The Ld. Metropolitan Magistrate after compliance of the provisions of Section 207 Cr.P.C. committed the case to the court of Sessions.
Vide order dated 2.12.2006, my Ld. Predecessor framed at charge for offences punishable U/ss 120B IPC, 393 IPC read with section 120B IPC, 394 IPC read with section 120B IPC & u/s 302 IPC read with section 120B IPC against the accused Akhil Pathak to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined as many as 24 witnesses.
PW1 Smt. Mithlesh is wife of the deceased Aram Singh. She is the complainant. She has stated that four months prior to date of incident i.e 22.5.06, his husband Late Sh. Aram Singh had sold his house to one Vishram Singh for Rs.5,40,000/. Her husband had agreed to purchase a house at Indrapuri, Loni for Rs. 4,00,000/. On 22.5.2006 at about 8 a.m., a telephonic call was received by her which was made by property dealer Ram Niwas. She had passed on the said telephone call to her husband, who attended the call. On the same day at about 9.00 a.m. Ram Niwas again made a telephone call which was attended by her husband. After about 1015 minutes her husband left the house asking her to meet him in the Sessions Case No.57/2011 Page5/26 6 house of Ram Niwas R/o Gali No.12,3 ½ Pushta, Kartar Nagar, Delhi.
PW1 further stated hat she went to the house of Ram Niwas. From the house of Ram Niwas, she along with her husband left the house of Ram Niwas for Chota Pushta. They were about to go to the office of Sub Registrar at Nand Nagri. Ram Niwas property dealer told them that they should reach 4th Pushta and he would bring vehicle there for going to Sub Registrar Office. When they reached near Satnarayan Marriage Home at 4th Pushta at about 10.00 a.m., two boys came from behind and one of them snatched the bag from the hand of her husband. When her husband turned and tried to chase the boys, he was shot at by the other boy. They both fell down after the gunshot. The assailants fled away from the spot along with the bag. One boy was wearing black shirt and jeans pant and the other boy was wearing white shirt. She could not identify any of the two boys.
PW1 further stated that she cannot identify the accused nor she knew them. Police was informed by the public. She along with her husband were removed to GTB Hospital. Her statement was recorded in the hospital by the police which is Ex.PW1/A. PW1 further stated that she did not see Vishram Singh giving Rs.4,50,000/ to her husband at the house of Sessions Case No.57/2011 Page6/26 7 property dealer Ram Niwas.
This witness did not support the prosecution case and was cross examined by Ld. Addl. P.P. for the State as she has resiled from her previous statement made to the police. In her cross examination by Ld. Addl. P.P. she did not support the case of the prosecution. She stated that her husband did not tell her while he was being taken to the hospital that Akhil Pathak who was friend of Manoj @ Manju used to ask him about the payment and registry or that he used to be accompanied by his two friends at that time and that he also told her their names are Nagender and Sampat and Nagender or that Sampat had opened fire at him and tried to snatch the bag.
PW2 is Ram Niwas. As per the prosecution, he is a material witness but he did not support the case of the prosecution.
He stated that he is a property dealer. He stated that about 34 months prior to the murder of Aram Singh, Vishram Singh had agreed to purchase a house from Aram Singh, through him. On 22.5.2006 at about 9.00 a.m. Vishram Singh had made payment of Rs. 4,50,000/ to Aram Singh at his house which was kept by Aram Singh in a black colour bag. No one was present at that time. He went away to his office. He further stated that at about 11.00 a.m. he came to know about gun shot injury to some one. Police officials came to his office and he Sessions Case No.57/2011 Page7/26 8 was taken to P.S. New Usmanpur.
PW2 has stated that he told the police that he did not know anything about any incident with Aram Singh. He did not know as to who had shot at Aram Singh.
This witness was cross examined by Ld. Addl. P.P. for the State as he has resiled from his previous statement made to the police. But even in his cross examination he did not support the prosecution case. He stated that he did not know Akhil Pathak.
PW3 is Manoj @ Manju. As per the prosecution he is also a material witness, but he has not supported the prosecution case. He stated that he knew accused Akhil Pathak. About 34 months prior to the murder of Aram Singh, he had agreed to purchase a house from Vishram Singh through Raju Yadav and Khanna for Rs.6,00,000/. He had given Rs.50,000/. On 22.5.2006 at about 7.30 a.m. he had given Rs.5,50,000/ to Vishram Singh. He did not know whether Vishram Singh had also agreed to purchase any house from Aram Singh. He did not know Aram Singh prior to his murder. Akhil Pathak never inquired from him about making payment of Vishram Singh for registration of sale deed of the house purchased by him from Vishram Singh. He did not know as to who shot at Aram Singh for snatching the bag containing money form his hand and who were the persons responsible for the said incident.
Sessions Case No.57/2011 Page8/26 9This witness was cross examined by Ld. Addl. P.P. for the State as he has resiled from his previous statement made to the police. Even in his cross examination by the Ld. Addl. P.P. he did not support the prosecution case.
PW4 is Pankaj Kumar Yadav. As per the prosecution case he is a material witness . He did not support the prosecution case.
He stated that he was doing job at Gandhi Nagar. His mausa (uncle) Ram Niwas Yadav is a property dealer and doing the business at 3 ½ Pushta Kartar Naar, Delhi.He did not know accused Akhil Pathak. He did not know any person by the name of Aram Singh. He did not know as to how and who murdered him.
This witness was cross examined by Ld. Addl. P.P. for the State as he has resiled from his previous statement made to the police. He stated that he was never interrogated by the police nor his statement was recorded. He denied the suggestion that he used to assist his mausa Ram Niwas in his business of property dealing and that he knew Akhil Pathak s/o Arvind Prakash who worked in cloth shop at Gandhi Nagar and that he was known to him and that he used to visit his uncle Ram Niwas and Aram Singh, who had told his house to Vishram Singh through his uncle Ram Niwas. He also denied the suggestion that when he reached Gali No. 15, Kartar Nagar at corner of Kartar Nagar, he Sessions Case No.57/2011 Page9/26 10 saw Akhail, Nagender, Shyam Pratap and two other boys were standing there and that Aakhil was sayaing that '' aaj badi game khelni hai''. He denied that when Aram Singh and his wife went out from the house of his uncle Ram Niwas with payment money in the black colour bag, they were followed by Nagender, Shyam Pratap @ Sampat and that two other boys and that Akhil went away towards his house and that he told this fact to his uncle Ram Niwas that Akhil, Nagender, Shyam Pratap and two other boys were roaming in their gali and that Akhil was saying that '' aaj badi game khelni hai'' and Aram Singh and his wife went away with payment and that all the four boys had also followed them and Akhil went away towards his house and that his uncle Ram Niwas immediately went to the house of Aram Singh which was found locked and that after some time it was revealed that Aram Singh was shot at by someone and money was tried to be snatched and that he is sure that Akhil after making a plan got the same executed by his associates Nagender, Shyam Pratap and two boys. Even in his cross examination by the Ld. Addl. P.P. he did not support the prosecution case in any manner.
PW7 is Praveen Kumar Yadav. As per the prosecution he is also a material witness, but he has not supported the prosecution case.
He stated that he is running his office under the name and style of Khanna Property Dealer at Kartar Nagar, Delhi. He Sessions Case No.57/2011 Page10/26 11 know Raju Yadav ,Vishram Singh and Ram Niwas. He does not know Aram Singh. He know Raju Yadav as he is his partner in the business. He knows Ram Niwas as he is his neighbour. Vishram Singh was their client and had sold a house to one Manju through them. He never dealt with Aram Singh in any property matter.
This witness was cross examined by Ld. Addl. P.P. for the State as he has resiled from his previous statement made to the police. Even in his cross examination by Ld. Addl. P.P. for the State, he did not support the prosecution case.
PW9 is Rajeev Yadav. He stated that in the year 2006, he used to work at Khanna Property Dealer. About one year ago, Manju Yadav had purchased house of Vishram Singh for Rs.6.30 lacs. Manju Yadav had given payment of the house to Vishram Singh. Mr. Khanna had taken Manju Yadav to court. He had gone to his house at about 9.30/9.45 p.m. PW16 is Vishram Singh. He stated that about 11½ years ago, he had purchased a house of Aram Singh and Mithlesh Kumari, through Ram Niwas, property dealer. He had handed over Rs.4,90,000/ to Aram Singh and his wife at the house of Ram Niwas property dealer. He had given the amount at about 10.00 a.m. He had gone to Registrar Office for registration of sale deed. Aram Singh did not reach the Registrar Office. Later on he came to know that he had sustained bullet injury.
Sessions Case No.57/2011 Page11/26 12PW5 Mukhiyar Singh and PW6 Ram Saran have identified the dead body of deceased Aram Singh and police recorded their statements Ex.PW5/A and Ex.PW6/A in this regard. After the postmortem, they have received the dead body.
PW10 is Constable Ram Kumar. He stated that on 22.5.2006 he was working as Duty Constable in GTB Hospital. On that day, doctor handed over him a sealed pulanda containing the clothes of injured and a sample seal. He handed over the pulanda and seal to the IO which was seized vide memo Ex.PW10/A. PW11 is ASI Maha Singh. He was also examined as PW19. He stated that on 22.5.2006 he was posted as Incharge PCR Van B45. On that day, he along with his staff were present at Khajuri Chowk. At about 10.40./10.45 a.m. on receipt of call he reached at 4th Pushta at the place of occurrence. One injured Aram Singh was found there. He removed the injured to GTB Hospital and got him admitted in the hospital.
PW13 is Constable Vijay Singh. He stated that he was posted at P.S.New Usmanpur. After the death of Aram Singh, the dead body of Aram Singh was handed over to him for its safe custody. After the postmortem, the dead body was handed over to the brother of the deceased namely Mukhtiyar Singh on 26.5.2006. Nobody tampered with the dead body till it remained in his custody. After the postmortem, doctor handed over him a Sessions Case No.57/2011 Page12/26 13 pulanda sealed with the seal of GTB, which was seized by the IO vide memo Ex. PW13/A. PW14 is Constable Khem Chand. He stated that on 28.5.2006 he was posted at P.S.New Usmanpur. On that day, he joined the investigation of this case with IO SI Lal Sahab. In his present, the accused Akhil Pathak made disclosure statement Ex. PW14/A stating therein that coaccused Nagender and Sampat who were involved in this case were concealing themselves somewhere in Uttam Nagar, Nangloi Railway Colony. Accused has taken them there, but despite efforts both the accused could not be traced. Accused Akhil Pathak was also got medically examined in GTB Hospital while he was in the custody of the IO.
PW17 is Dr. Devender Kumar, CMO GTB Hospital. He stated that on 22.5.2006 at 11.45 a.m. he examined the patient Aram Singh which was brought by ASI Maha Singh of PCR, with alleged history of gun shot injury with no history of loss of consciousness, ENT bleeding and seizure. Patient was conscious and oriented. He was declared fit for statement at 11.45 a.m. Patient was referred to surgery emergency, medicine emergency. His detailed report is Ex. PW17/A. PW18 is Shivaji A.B. Duty Executive Reliance Communication, Barakhamba Road, Connaught Place, New Delhi. He has proved the call details ( running into four pages) Sessions Case No.57/2011 Page13/26 14 of mobile no. 9310002235 in the name of Akhil Pathak which is Ex. PW18/A. PW21 is Head Constable Shiv Kumar. He stated that on 22.5.2006 he was posted as Duty Officer in P.S. New Usmanpur, from 9.00 a.m. to 5.00 p.m. On that day, at about 10.50 a.m. he had received a PCR call sent by Ct. Parvinder. He recorded DD Entry No. 5A, copy of which is Ex. PW21/A. One copy of the said DD was sent to SI Virender Singh through Ct. Satish Kumar.
PW21 further stated that on that day, at about 1.35 p.m. on receipt of rukka from Ct. Satish, he recorded FIR No. 180/06, copy of which is Ex. PW15/D. PW22 is SI Pramod Chauhan. He stated that on 5.8.2006 he was posted at P.S. New Usmanpur. Addl. SHO Insp. Dinesh Sharma has handed over him the case file. He along with HC Ramesh appeared before the court of Sh. Ajay Gupta, Ld. M.M. where he produced the copy of process u/s 82 Cr.P.C. Thereafter, the statement HC Ramesh was recorded and accused Nagender and Shyam Partap who were absconding were declared proclaimed offenders by the Ld. M.M. PW23 is Jyotish Moharana, Executive, Vodafone Essar Mobile Service Ltd. He proved the call details of phone no. 9873057895 for the period from 10.5.2006 to 25.5.2006, which was issued from their office vide reference no. 050012480625.
Sessions Case No.57/2011 Page14/26 15The call details( running into five pages ) is Ex. PW23/A. He proved the call details of phone no.9811830463 for the period from 10.5.2006 to 23.5.2006, which was issued from their office vide reference no. 050003400623. The call details ( running into five pages ) is Ex. PW23/B. PW24 is Dr. Meghali Sr. Demonstrator Department of Forensic Medicines, UCMS & GTB Hospital, Delhi, who proved the postmortem report No. 535/06 dated 26.5.2006 of deceased Aram Singh. The said postmortem report was prepared by Dr. Barkha Gupta, who has left the services of the hospital and her whereabouts are not known. She had seen Dr. Barkha Gupta writing and signing the documents during the course of official duties. The postmortem report is Ex. PW24/A which bears the signatures of Dr. Barkha Gupta.
The cause of death is septicemia due to antemortem injuries to the internal organs, likely to be produced by projectile of a firearm.
PW15 S.I. Virender Singh is the first Investigating Officer of the case. He stated that on 22.5.2006 he was posted at P.S. New Usmanpur. On receipt of DD No.5A, regarding firing of the incident, he along with Ct. Satish Kumar went to 4 th Pushta, Kasrtar Nagar where they came to know from the public present there that injured had already been taken to GTB Hospital in PCR. No eye witness met at the spot. Thereafter, he along with Sessions Case No.57/2011 Page15/26 16 Ct. Satish Kumar reached at GTB Hospital and obtained the MLC of injured Aram Singh. Doctor declared the injured fit for statement.
PW15 further stated that Smt. Mithlesh wife of injured was also found present in the hospital along with Aram Singh. He could not record the statement of Aram Singh at that time as sometimes he was being taken to Xray room and some times he was being taken to other departments for his medical examination. So, he recorded the statement of the wife of injured Aram Singh which is Ex.PW1/A on which he prepared tehrir Ex.PW15/A and handed over the same to Ct. Satish for registration of the FIR.
PW15 further stated that SHO had also come in the hospital. On the directions of the SHO, he had taken Mithlesh to the spot of occurrence. He prepared site plan Ex. PW15/A at the instance of complainant. Constable Satish came back to the spot and handed over the copy of the FIR and original rukka to him. Ram Niwas and Pankaj met him at the spot, who claimed themselves to be the witnesses and accordingly, he recorded their statements u/s 161 Cr.P.C. He could not trace out any empty cartridges at the spot. Thereafter, he went to GTB Hospital along with complainant Mithesh and Ct. Satish. He recorded the statement of injured Aram Singh which is Ex.PW15/C. Constable Raj Kumar handed over him a sealed pulanda sealed with the seal Sessions Case No.57/2011 Page16/26 17 of hospital. It contained shirt and baniyan of injured and sample seal, which was seized by him vide memo Ex. PW10/A. He recorded statement of ASI Maha Singh Incharge of PCR Van. He deposited the case property in the malkhana. On 23.5.2006 he went to the spot and there Manoj Kumar met him. He recorded the statement of Manoj Kumar. Thereafter, he fell ill and the case file was handed over o SI Lal Sahab.
PW8 is Constable Satish Chand. On 22.5.2006 he along with SI Virender Singh reached at the spot. There they came to know that two persons had fired on one person and injured had been removed to GTB Hospital by PCR officials. Thereafter, they reached the hospital. IO recorded the statement of the wife of injured. He took the rukka to the police station for the registration of the case. He got the case registered. After registration of the case, he came back at the spot and handed over the copy of the rukka and copy of FIR to the IO.
PW20 SI Lal Sahab is the second Investigating Officer of the case. He has stated that on 24.5.2006 he was posted at P.S. New Usmanpur. On that day, the investigation of this case was marked to him. He received a secret information that accused involved in this case was present near Sat Naraian Dharmshala,Ganda Nala. They reached there and apprehended the accused Akhil Pathak. He arrested the accused vide arrest memos Ex PW12/B and Ex. PW12/C., recorded his disclosure Sessions Case No.57/2011 Page17/26 18 statement Ex. PW12/A and seized his mobile phone no. 9310002235 vide memo Ex. PW12/D. PW20 further stated that he searched for the other accused persons. On 25.5.2006 injured Aram Singh expired in the hospital. On 26.5.2006 he had gone to GTB Hospital Mortuary and moved an application Ex.PW20/A for conducting the postmortem of the dead body. The dead body was identified by Mukhtiyar Singh and Ram Saran vide their statements Ex. PW5/A and Ex. PW6/A. He conducted the inquest proceedings which is Ex.PW20/B. After postmortem the dead body was handed over to Mukhtiyar Singh the brother of he deceased vide receipt Ex. PW5/B. He could not arrest the accused Nagender and Shyam Pratap,so, he obtained NBWs against them & initiated proceedings u/s 82/83 Cr.P.C against them. He collected the call details of mobile phones of accused Akhil Pathak, Nagender & Sampat. On 3.6.2006 he was transferred.
PW12 is Constable Harinder. He has joined the investigation of the present case with IO SI Lal Sahab on 24.5.2006. He supported the testimony of SI Lal Sahab on all the material points. In his presence, IO apprehended the accused Akhil Phatak and recorded his disclosure statement Ex. PW12/A. IO arrested the accused Akhil Pathak vide memo Ex.PW12/B, conducted his personal search vide memo Ex. PW12/C. IO seized the mobile phone of the accused vide memo Ex.PW12/D. Sessions Case No.57/2011 Page18/26 19 The statement u/s 313 Cr.P.C. of the accused was recorded in which he has stated that he was innocent and falsely implicated in this case. He was arrested on 22.5.2006 from the office of SDM Nand Nagri and his arrest was shown on 24.5.2006 when his cousin brother made a complaint to DCP concerned. He further stated that he was making inquires from some mohalla people for preparing an affidavit to be filed by him in the Food and Supply Office. In the meantime, police officials reached there and arrested him.
. In defence, accused has examined four witnesses.
DW1 is Ram Babu, DW2 Sanjay Sharma, DW3 Ajay Prakash Pathak and DW4 Anun Bhatia.
I have heard Sh. Atul Kumar Srivastva Ld. Addl. P.P. for the State & Sh. Rakesh Kochar Ld. Counsel for the accused. I have also gone through the file and written arguments submitted by the Ld. Defence Counsel.
It was submitted by Ld. Addl. P.P. for the State that accused Akhil Pathak hatched a conspiracy with his coaccused Nagender and Shyam Parshad @ Sampat, (who are proclaimed offenders) . It was further submitted by Ld. Addl. P.P. that in pursuance of the said conspiracy, the accused along with the co accused have committed the murder of Aram Singh. It was further submitted that from the evidence on record, prosecution has been able to prove its case against the accused.
Sessions Case No.57/2011 Page19/26 20On the other hand, it was contended by Ld. Counsel for the accused that the accused has been falsely implicated in this case. It was further submitted that none of the prosecution witness has supported the case of the prosecution. It was further submitted that the prosecution has failed to prove that neither the accused has hatched the conspiracy with his coaccused nor they committed any offence in pursuance of the alleged conspiracy.
The perusal of the file shows that in this case prosecution has examined as many as 24 witnesses, out of which PW1 Smt. Mithlesh wife of the deceased Aram Singh is the eye witness of the alleged incident and the present case was registered on her statement. She turned hostile and did not support the case of the prosecution. Neither she identified the accused nor she has stated that it was the accused was involved in the crime.
The charge against the accused is of conspiracy which he has hatched with coaccused who are proclaimed offenders. As per prosecution case the murder was committed in pursuance of conspiracy by accused namely Shyam Parsad and Nagender who are proclaimed offenders. So far as the charge of conspiracy against accused Akhil Pathak is concerned, this witness did not support the prosecution case in this regard. She denied the suggestion of Ld. Addl. P.P. that her husband told her that accused Sessions Case No.57/2011 Page20/26 21 Akhil Phatak used to ask him regarding the payment and the registry. She also denied that Akhil Pathak was accompanied by two other persons. This witness she did not know accused Akhil Pathak. The testimony of this witness is of no help to the prosecution.
PW2 Ram Niwas is a public witness & he has also not supported the prosecution case. He denied that accused Akhil Pathak used to ask him regarding the payment which was to be made to Vishram Singh . The testimony of this witness is also of no help to the prosecution case.
PW3 Manoj also did not support the prosecution case. He stated that accused Akhil Pathak never enquired from him regarding the payment which was to be made to Vishram Singh for registration of the house purchased by him from Vishram Singh. The testimony of this witness is also of no help to the prosecution.
PW4 Pankaj Kumar Yadav has also not supported the prosecution case in any manner. He denied the suggestion of Ld. Addl. P.P. that he saw the accused standing in Gali No.15, Kartar Nagar along with Nagender and Shyam Pratap. He also denied the suggestion of he Ld. Addl. P.P. that at that time accused Akhil was saying that he had to play a big game that day. The testimony of this witness is also of no help to the prosecution.
The testimony of PW5 Mukhtiar Singh is formal in Sessions Case No.57/2011 Page21/26 22 nature as he has only identified the dead body of his deceased brother Aram Singh.
The testimony of PW6 Ram Saran is formal in nature as he has only identified the dead body of his deceased relative Aram Singh.
The testimony of PW7 Praveen Kumar Yadav is also of no use for the prosecution and he has not supported the prosecution case.
The testimony of PW8 Ct. Satish Chand is formal in nature as he has taken the rukka from the spot for registration of the FIR.
The testimony of PW9 Rajiv Yadav is also of no use for the prosecution as he has simply stated that Manju Yadav had purchased the house of Vishram Singh for Rs.6,30,000/. The payment was made by Manju Yadav to Vishram Singh.
The testimony of PW10 is formal. At the relevant time, he was working as Duty Constable in GTB Hospital.
The testimony of PW11 ASI Maha Singh is also formal as he has reached the place of occurrence as he was posted Incharge PCR at that time.
The testimony of PW12 Ct. Harinder is also of not much relevance as he came into action after the registration of the FIR.
The testimony of PW 13 Ct. Vijay Singh is also Sessions Case No.57/2011 Page22/26 23 formal as he remained with the dead body in GTB Hospital.
The testimony of PW14 Ct. Khem Chand is of not much relevance as he has joined the investigation with the IO in whose presence accused made the disclosure statement.
PW15 SI Virender Singh has investigated the case. The testimony of PW16 Vishram Singh is also formal as he has purchased the house from Aram Singh and made payment of Rs.4.90,000/ to deceased Aram Singh and his wife at the house of property dealer Ram Niwas.
PW17 Dr.Davender Kumar has examined the patient /deceased in the hospital.
PW18 Shivaji A.B. from Reliance Communication has proved call detail record..
PW19 is PCR official who has reached the spot after receiving wireless message.
PW20 SI Lal Sahab has also investigated the case. PW21 is Duty Officer.
PW22 SI Parmod has conducted the proceedings u/s 82 Cr.P.C. against accused Nagender and Shyam Pratap.
PW23 is Executive of Vodafone and proved certain call detail record.
PW24 is the doctor who has conducted the postmortem on the dead body of deceased Aram Singh.
Thus, from the above discussion, it is clear that no Sessions Case No.57/2011 Page23/26 24 direct evidence has come on record against the accused regarding the conspiracy which was hatched between the accused Akhil Pathak, Shyam Prashad and Nagender, who are proclaimed offenders.
It was submitted by the Ld. Addl. P.P. that though no evidence has come on record against the accused Akhil Pathak from the statements of the prosecution witnesses, even then, the prosecution case is proved from the statement of deceased Aram Singh which was recorded u/s 161 Cr.P.C.by the IO. It was submitted that in his statement u/s 161 Aram Singh has stated that accused Akhil Pathak used to ask him regarding the payment which was to be received on account of sale of his house. It was submitted that as per his statement accused was standing at a some distance when he left after receiving the payment.
It is important to note that PW15 SI Virender Singh has recorded the statement u/s 161 Cr.P.C. of deceased Aram Singh. He has admitted in his cross examination till the investigation was with him, the deceased Aram Singh was alive. He also admitted that he did not get the statement of Aram Singh recorded u/s 164 Cr.P.C. Nor he requested the CMO to record the statement of deceased Aram Singh.
It is important to note that PW15 SI Virender Singh has stated that the doctor declared at 11.40 a.m. regarding the fitness of Arm Singh for making he statement. He has also Sessions Case No.57/2011 Page24/26 25 admitted that he recorded the statement of Aram Singh at 3.40 p.m. This means that after the deceased was declared fit for statement, his statement was recorded after four hours. It has also come on record that no doctor has given the certificate of fitness that when the statement of Aram Singh was recorded, he was fit for statement. It is also admitted by PW15 that he did not get the said statement attested from any doctor.
In a case reported as 1996 (4) Crimes 235, the Hon'ble Delhi High Court has held that the dying declaration cannot be believed, where the Magistrate recorded the dying declaration at 5.00 p.m. but the deceased was declared fit to make statement at 11.35 a.m. and no evidence was there to show that the deceased was fit to make statement when her statement was recorded.
In a case reported as 1996 Crl.L.J. 4284 the Hon'ble Allahabad High Court has held that when the dying declaration is recorded in hospital but in the presence of Doctor and Nurse though present and their signatures were not obtained, the dying declaration does not inspire confidence.
It is also important to note that PW15 SI Virender Singh has stated that when he reached the hospital he obtained the MLC of Aram Singh whereupon the doctor has declared Aram Singh fit for statement. He has also stated that he then recorded the statement of Smt. Mithlesh wife of Aram Singh. If at that Sessions Case No.57/2011 Page25/26 26 time, Aram Singh was fit for making the statement then why his statement was not recorded by IO and why the case was not registered on his statement.
In view of the above discussion and the judgments referred above, I am of the considered view that statement of deceased Aram Singh which was recorded u/s 161 Cr.P.C. cannot be treated as dying declaration of Aram Singh.
The call details record produced by the prosecution also does not prove any conspiracy hatched between the accused persons.
The perusal of the file further shows that there is nothing on record which could connect the accused with the criminal conspiracy. Therefore, I am of the considered view that prosecution has failed to prove its case against the accused persons. Accordingly, the accused is acquitted for the offences charged with.
The bail bond of accused is cancelled. His surety is discharged. The file be consigned to Record Room and the same shall be revived as and when the accused Nagender(PO) and Shyam Pratap @ Sampat (PO) are arrested.
Announced in Open Court on 7th December 2011 (Surinder Kumar Sharma ) Addl. Sessions Judge/North East KKD, Delhi.
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