Delhi District Court
State vs 1 Suraj @ Pardeep @ Bablu @ Kana on 7 March, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0217452013
Sessions Case No. 143/1/13
FIR No. 98/2013
PS Sultan Puri
U/s 302 IPC
State Versus 1 Suraj @ Pardeep @ Bablu @ Kana
Son of late Sh. Gulab Singh
Resident of H. No. X-81 Jhuggi,
Mangol Puri, Delhi.
Date of institution in Sessions : 22.08.2013
Date of conclusion of arguments: 07.03.2015
Date of judgment : 07.03.2015
Memo of Appearance:
Sh. Pankaj Bhatia, learned Addl. P.P. (Substitute) for State
Sh. Amit Kumar Kaushal, learned defence counsel for accused
JUDGMENT
1 On 02.02.2013 at about 7.15 PM, Police Control Room was informed that one boy had been stabbed near Kumharo Ki Basti, Thane Wali Road, Nallah of C-Block, Sultan Puri. SI Vikas Sahu was immediately asked to reach there. He along with Ct. Baljeet reached at C-10 Jhuggies and learnt that injured Prem had already been taken to SGM Hospital, Mangol Puri. He, however, inspected the room of injured and saw blood lying on the floor as well as on the mattress. He could not find any eyewitness at the spot. He then rushed to SGM Hospital, Mangol Puri where injured Prem was found admitted with stab injuries. He was unfit for making any statement. As per the MLC, patient had been brought unconscious with alleged history of found on roadside with stab injuries.
2 SI Vikas Sahu got the spot inspected through Crime Team. Spot was also photographed and a rukka was prepared with request for registration of case for offence under Section 307 IPC.
FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 1 of pages 9 3 During investigation, it was learnt that one boy, namely, Akshay was a last seen witness. His statement under Section 161 Cr.P.C. was recorded. I would like to mention right here that his statement was not that of 'last seen', simpliciter. He was rather an eyewitness and had seen accused Suraj @ Kana quarreling with Prem in the jhuggi of Prem. He also saw accused taking out one chhura (knife) from beneath the mattress and stabbing Prem with the same. Thereafter, out of fear, he came out. His such statement was also recorded on 02.02.2013 at dead hour of the night.
4 Injured Prem succumbed to his injuries and case was converted for commission of offence under Section 302 IPC. Thereafter, further investigation was conducted by Insp. Puran Pant. Statement of Akshay under Section 164 Cr.P.C. was also got recorded. Postmortem report was also collected which revealed that stab injury was sufficient to cause death in the ordinary course of nature.
5 Accused Suraj @ Kana had been arrested under Section 41.1 (b) Cr.P.C. and information to that effect was flashed to PS Sultan Puri on 27.04.2013. He was then arrested after taking formal permission from the concerned Court. His disclosure statement was recorded. His police remand was also taken to recover the weapon of offence and clothes which he had worn at the time of incident. However, no such thing could be recovered.
6 After comprehensive investigation, accused was charge-sheeted for offence under Section 302 IPC.
7 Charge-sheet was filed on 19.07.2013 and the case was committed to Court of Sessions vide order dated 08.08.2013.
8 Case was received on allocation by this Court on 22.08.2013.
9 Accused was ordered to be charged under Section 302 IPC. Charge was framed on 09.10.2013 to which he pleaded not guilty and claimed trial.
FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 2 of pages 9 10 Prosecution was directed to adduce evidence and has examined 21 witnesses. Witnesses can be classified as under:-
Public witnesses
(i) PW3 Sh. Mahender Kumar (brother-in-law of deceased).
(ii) PW9 Smt. Seema (sister of deceased).
(iii) PW8 Sh. Naseem (informer of incident).
(iv) PW12 Master Akshay (alleged last seen witness).
Witnesses related to investigation
(i) PW1 W/HC Rakesh (Duty Officer).
(ii) PW2 HC Balwan Singh (Duty Officer).
(iii) PW4 Ct. Hem Raj (DD Writer).
(iv) PW5 Ct. Amit Kumar (Computer Operator)
(v) PW10 Ct. Hansraj (Photographer/Crime Team).
(vi) PW11 ASI Ajeet Singh (Crime Team Incharge).
(vii) PW13 Ct. Nagraj K. (Collector of PCR form)
(viii)PW14 Ct. Naresh Kumar (police official who had taken the sealed pullandas to FSL).
(ix) PW15 W/Ct. Grace (PCR official).
(x) PW17 Ct. Baljeet (police official who reached at the spot with IO)
(xi) PW18 SI Vikas Sahu (1st investigating officer).
(xii) PW19 Insp. Ram Kishore (3rd investigating officer).
Doctors/expert/other witnesses
(i) PW6 Dr. Vivek Rawat (postmortem surgeon).
(ii) PW16 Dr. M. Dass (doctor who initially medically examined Prem)
(iii) PW7 Sh. Aslam Khan (Paramedics posted at CATS Ambulance)
(iv) PW20 Ms. Sunita Guptda (Scientific Expert).
(v) PW21 Ms. Meenu Kaushik (learned MM who recorded statement of Master Akshay under Section 164 Cr.P.C.).
11 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence and denied to lead any evidence in defence.
12 I heard Sh. Pankaj Bhatia, learned Addl. P.P. for State and Sh. Amit Kumar Kaushal, learned defence counsel and carefully gone the entire material available on record.
13 Sh. Kaushal has contended that prosecution has not been able to prove its case. He has asserted that accused has been falsely implicated FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 3 of pages 9 merely because of his various previous involvements and he was not responsible for the incident in question. He has also argued that testimony of solitary eyewitness also clearly points out towards the false implication of accused. He has argued that during the investigation, police had pressurized Master Akshay and made him an eyewitness simply to show that the case had been worked out and cracked. He has argued that testimony of Master Akshay, as recorded by the Court, has clearly spilled the beans and, therefore, accused deserves a clean chit.
14 Ld. Addl. PP has, on the other hand, refuted the aforesaid averments. He has contended that Court can still fall upon the previously recorded statement under Section 164 Cr.P.C.
15 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
16 Undoubtedly, there is no other eyewitness of the occurrence except Master Akshay. When statement of Master Akshay was recorded under Section 164 Cr.P.C., he claimed that when he was going to ease himself at about 6.00/6.30 PM on 02.02.2013, he saw Prem and Suraj fighting. He also claimed that during such quarrel, Suraj took out one chhura (knife). In his such statement, he never mentioned about the place of occurrence. He also did not mention that he saw incident of stabbing. He claimed that he, out of fear, ran away on seeing chhura. He did not say, in his statement under Section 164 Cr.P.C., that accused had stabbed Prem and that had seen such incident as well.
17 Let me now see as to what he has deposed in the witness box. He was examined as PW12 and before recording of his deposition, the Court had put several questions to him in order to ascertain whether he was able to comprehend the questions properly or not and in order to ascertain whether oath could be administered to him or not. After satisfying itself on this score, witness was administered oath by the Court. In his deposition, he claimed that he knew deceased Prem as he was his neighbour. He then claimed that on 02.02.2013 FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 4 of pages 9 at about 7.00/7.30 PM when he was present outside his jhuggi, he had seen huge gathering of people outside the jhuggi of Prem and saw Prem lying dead in his jhuggi. He deposed that thereafter one ambulance came and took Prem to Hospital and he returned to his house. He further deposed that in the night police had come to his jhuggi and made inquiries from him and asked whether he had seen any occurrence taking place to which he replied that nothing had happened in his presence. Police accordingly noted down his name and address. He further deposed that on 05.02.2013 one police official came to him and told him that his statement was to be recorded before a Magistrate and, therefore, he accompanied him. He further claimed that en route police official told him that he was to state before the Court that he had seen one Suraj @ Kana quarreling with Prem and stabbing Prem with knife and, therefore, he stated the aforesaid facts before the Magistrate. He admitted his signatures on such statement but categorically claimed that he did not know any person with the name of Suraj and also out-rightly denied involvement of Suraj. He was cross-examined by the prosecution with the permission of the Court and was grilled exhaustively but he remained adamant to his such stand taken in the examination-in-chief and denied that he had seen the incident with his own eyes.
18 Naturally, statement made before the Court during trial has to be given preference over the previously recorded statement. PW12 Master Akshay was duly confronted with his previously recorded statement but he has, in no uncertain terms, deposed that had not seen the incident at all and he was made to name Suraj under the pressure of police. State has contended that Akshay had made no complaint in this regard anywhere and, therefore, what he has later on claimed before the Court must be due to the fact that he has been won over by the accused. However, there is no material to assume so.
19 In RAM LAKHAN SHEO CHARAN AND OTHERS VS. STATE OF U.P. 1991 CRI.L.J. 2790, when the witness, whose statement has been recorded by the learned Magistrate under Section 164 Cr.P.C., during the Sessions' trial, turned hostile, did not support his statement to the Magistrate, a Division Bench of the Allahabad High Court observed as under :
"The trial was held when the new Code of Criminal Procedure had come into FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 5 of pages 9 force. The wordings of Section 164 in the new and old Code of Criminal Procedure with little changes are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 : (1942) 43 Cri LJ 277 a Division Bench of the Calcutta High Court had held that the statements Under Section 164 of the Code can be used only to corroborate or contradict the statements made Under Sections 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh Vs. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 : (1946) 47 Cri LJ 344) the Privy Council had observed that the statement Under Section 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257 : (1949) 50 Cri LJ
872) and in Bhagi v. Crown, 1950 Cri LJ 1004 : (AIR (37) 1950 HP 35). It was also held by a single Bench of the Himachal Pradesh Judicial Commissioner's court that statement Under Section 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642 : (1960 Cri LJ 1167). A division Bench of this Court had also observed that statements Under Section 164 of the Code cannot be used as a substantive evidence."
20 Statement recorded under Section 164 Cr. P. C. is not substantive evidence. It can be used only to corroborate the statements of the witness or to contradict them. If any witness does not support the prosecution case and retracts and resiles from his previous statement, then his statement earlier recorded under Section 164 Cr.P.C. would not be available to the prosecution for corroboration. It could, to the maximum, be used by the prosecution for contradiction. It is, therefore, evident that it would be a fallacy of a legal approach to have reliance upon the statement of a witness recorded under Section 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis. In this regard, reference be made to R.Palanisamy vs State By Inspector Of Police (Crl.A.No.158 of 2013 DoD 23 April, 2013, Madras High Court). In said case, Hon'ble Madras High Court had made reference to various precedents and held as under:-
"Thus, from the survey of the decisions relating to Section 164 Cr.P.C., as to its FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 6 of pages 9 nature, scope, evidentiary value, consequences of the author of the statement resiling from his such statement before the learned Sessions Judge, his statement under Section 164 Cr.P.C., which is not a substantive piece of evidence loses its value. It cannot be used to record a finding of guilty. When the position of law is such that, in the case before us, inspite of the fact that the prosecutrix (P.W.1) has turned hostile, disowned her statement, the learned Additional Sessions Judge relied on it since it was recorded by a Judicial Officer. The trial court has completely went wrong."
21 In Ram Kishan Singh vs. Harmit Kaur and Another ((1972) 3 SCC
280), it has been held by Apex Court that a statement of 164 Cr.P.C. is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-a-vis statement made in Court. In other words, it can be only utilized only as a previous statement and nothing more.
22 I have seen the statement of PW18 SI Vikas Sahu who had allegedly recorded the statement of Master Akshay under Section 161 Cr.P.C. According to him, he had recorded statement of Akshay who had come at the spot. But in his cross-examination, he claimed that he had recorded his statement at about 12.00 night at his house and also claimed that Akshay had never come at the spot. This is not a small inconsistency in the present context.
23 Jhuggi of Master Akshay is reportedly at a distance of 300-400 mtrs. from jhuggies of C-10 and it has not been explained by the prosecution as to why Master Akshay had to take such long path when he merely wanted to ease himself. It also does not make him neighbour of Prem. Akshay resides in P-1 Jhuggies and Prem in C-10 Jhuggies.
24 Moreover, if Master Akshay is to be believed then at the time of incident Prem started shouting and if that was so, his neighbourers would have certainly collected. However, no resident of adjacent jhuggies has been examined or produced as witness which also creates a little bit doubt over the case set up by the prosecution.
FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 7 of pages 9 25 Let me also see the testimony of one another prosecution witness i.e. PW8 Naseem. He is a driver by profession and on 02.02.2013 at 7.00 PM he went towards C-10 Jhuggies where he found his father and other people present and there he learnt that some quarrel had taken place in the jhuggi of Prem and someone had stabbed Prem. He also rushed to jhuggi of Prem where he found him lying on the floor in pool of blood. He informed the police from his mobile. His deposition before the Court is also to the same effect. If his testimony is to be believed then before he reached the jhuggi of Prem, he knew that there was some quarrel between someone and Prem. He also learnt that some had stabbed Prem. This means that various other people knew about such fact even before the police had been intimated. However, investigation conducted by the police does not reveal so. Rather, police has come up with the assertion that incident had been witnessed by Master Askhay alone and as discussed, he was not even resident of those jhuggies of C-10 and was merely a chance witness to the occurrence.
26 Moreover, it's not abundantly clear where incident took place. Bloodstained mattress was recovered from jhuggi of Prem and as per police, incident had taken inside such jhuggi. PW8 Naseem also saw Prem lying in pool of blood in his jhuggi. He was the one who informed PCR. However, when he was removed to hospital by PCR and CATS Ambulance, it was mentioned that patient had been brought with history of 'found on roadside'. PCR form reveals that incident was due to 'group clash'. Prosecution has failed to explain these incongruities.
27 It was expected that police had recorded the statements of residents of adjacent jhuggies in order to have complete clarity.
28 No recovery has been effected at the instance of accused which may even remotely connect him with the commission of murder in question. There is no other eyewitness. This is despite the fact that incident had taken place at a busy residential area where lots of jhuggies are situated. Other investigational aspects of the case are neither in dispute nor have any bearing over the case in view of the hostile testimony of solitary eyewitness.
FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 8 of pages 9 29 Be that as it may, fact remains that testimony of Master Akshay has caused irreparable damage to the case of prosecution. Resultantly, I grant benefit of doubt to accused and acquit him of all the charges levelled against him in the present case.
30 He be released from jail forthwith if not required in any other case.
31 Case property, if any, be destroyed as per Rules after expiry of period of appeal or as per the outcome of appeal, if any.
32 File be consigned to Record Room.
Announced in the open Court
On this 07th day of March 2015 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West Distt: Rohini: Delhi
FIR No. 98/2013 PS Sultan Puri (State Vs. Suraj @ Pradeep @ Kana) Page 9 of pages 9