Delhi High Court
Sanjay @ Nagin @ Sohan Pal vs State on 18 September, 2006
Author: R.S. Sodhi
Bench: R.S. Sodhi, P.K. Bhasin
JUDGMENT R.S. Sodhi, J.
1. Criminal Appeal No. 507/2003 seeks to challenge the judgment of Additional Sessions Judge, Karkardooma Courts, Delhi in Sessions Case No. 65/2002 arising out of FIR No. 309/01, P.S. Kalyan Puri. Learned judge vide his judgment/order dated 18.03.2003 has held the appellant guilty for the offence under Sections 302/380/460/34 IPC. Further, by his order dated 20.03.2003, has sentenced the appellant for imprisonment for life under Section 302 IPC and a fine of Rs. 5,000/-, in default Rigorous Imprisonment for one year. He also passed sentence of 10 years under Section 460 IPC and a fine of Rs. 1,000/-, in default Rigorous Imprisonment for one month. He further sentenced the appellant for seven years for offence under Section 380 IPC and a fine of Rs. 1,000/-, in default Rigorous Imprisonment for one month. All the sentences were directed to run concurrently.
2. The facts of the case as has been noted by learned judge in his judgment under challenge are as under:
On 16.8.2001, PCR informed the police that Mayur Public School, E-27, East Vinod Nagar, was lying closed, where in a chowkidar was lying dead and the students were standing outside the school. The above said report was reduced in writing in DD No. 9-A. Inspector S.N. Khan, SHO, SI Dharamvir Gautam and staff were on the wing and arrived at the school. The inner channel gate of the school was found to be locked. The dead body of Ram Kishan was found lying in the corridor of main entrance channel gate. It transpired that blood had profusely oozed out from the dead body and it had slipped down towards the gate. SHO demanded key from the staff. PW Meena, maid servant (Aaaya) of the school informed him that she was having the key of the west side channel gate. She handed over a bunch of keys to the SHO. SHO opened the door and found that the dead body was lying naked and it was laced with stabbed wounds all over its body.
Ashwani Kumar Pandey, an employee of the school, made following statement. On 14.8.2001, the school was closed at 2.10 p.m. Ram Kishan and maid servant Meena remained present in the school. The school was closed on 15.8.2001 due to Independence Day. PW Ashwani Kumar found that the lock of the office was broken. He checked and found that Rs. 270/- were missing from the drawer. He also found that the lock of the Manager room, inner almirah and drawer of the table were lying broken/open. One window pain of wooden showcase was found to be broken. Supplementary statement of PW Ashwani Kumar was recorded on 16.8.2001, wherein, he disclosed that on checking his office, he found that one telephone set maroon coloured, make Beetal, on which words MPS were engraved, was also missing.
On the basis of this statement, SHO got the case registered under Section 460 and 380 IPC. Crime team was called and necessary steps were taken. SHO was tipped off and accused Sunil @ Navva was arrested on 12.3.2001. Accused Sunil stated that while working in cahoots with his co-accused Sanjay @ Nagin, they had killed Ram Kishan chowkidar and committed robbery. Accused Sunil @ Navva led the police party to Ghazipur Shamshan Ghat and got recovered black coloured T-shirt which according to him, he was wearing, at the time of commission of offence.
On 15.3.2002, accused Sanjay @ Nagin was in J.C. in another case. He appeared in the court through production warrants. After seeking permission from the court, Inspector S.N. Khan interrogated him. His disclosure statement Ex. PW 17/A was recorded. His police remand was obtained. He led the police party to Khoda Colony, U.P. but nothing could be traced. Accused Sanjay was again interrogated and his second disclosure statement Ex. PW 20/F was recorded. Then, Sanjay @ Nagain led the police party to Machhli Market, Ghazipur and got recovered phone and knife wrapped in a polythene bag. The phone was of Maroon coloured MTNL on which words M.P.S. were engraved. The blade and handle of the button actuated knife were imburded with blood.
On 13.3.2002, PW Mohd. Sajid made a statement before the police. He stated that accused Sunil @ Navva is his friend. He explained that a week earlier to his making statement before the police, Sunil had met him at Chand cinema. He explained that accused Sunil had made clean breast of this offence before him and had divulged that on the night falling between 15.8.2001, he along with Sanjay @ Nagin, who was imprisoned in Tihar jail in a murder case, went to Mayur Public School, East Vinod Nagar to commit theft. Sunil further explained that they had entered the school through the trees but the chowkidar woke up and got wind of their presence. The chowkidar raised a hue and cry and both of them killed him with knife. Accused Sunil further confessed that the had got Rs. 30/- only and remaining amount was kept by accused Sanjay @ Nagin.
Expert A.K. Srivastava, SSO, FSL Delhi, opined that T-shirt and knife in question bore human blood but gave no reaction. On 26.4.2002, the above said weapon of offence was produced before Dr. L.C. Gupta. After examining the weapon of offence, he opined that injuries No. C to J as listed by him on post mortem report Ex. PW1/A could be inflicted by the said weapon or a like weapon. Injuries No. C to J run as follows:
1. abrasion irregular save at both sides knee at its middle aspect of right knee and lateral aspect of left knee and dooso lateral aspect of left foot, dooso lateral aspect of right toe;
2. abrasion with bruise at back of left hand and left forearm;
3. incised wound of eleoptical shape of size 2.5 x 1 x 5 cms at epigastric region in abdominal muscle going left to right and downward;
4. incised wound eleoptical shape 2 x 3/4 cm at left sterno calvicular joint and it cuts only hair of thickness of joint;
5. incised wound 2 cm x 2 x 3/4 cm just above the right enterior iliact spine, it was muscle deep;
6. incised wound 2 cm x 1/2 cm into muscle deep at right side neck at supra clavicular region;
7. 4 incised wound 2 cm x 1/2 cm toe 3 cm x 1/2 cm at left side neck;
8. lacerated wound 4.3 cm x 1 cm x brain cavity with depressed signature fracture at forehead with fractured part of the skull bone going inside and entangled in brain meninges were lacerated correspondingly along with brain matter; sub-archnoid haemorrahage were also present correspondingly at both side occipital region.
He gave his opinion Ex. PW 1/B in this context. Consequently, the prosecution pinned the murder on both the accused and booked them for offences punishable under Sections 302/380/460/34 IPC.
3. The prosecution in order to establish its case examined as many as 23 witnesses. The trial court, upon completion of evidence, acquitted Sunil Kumar @ Sunil @ Navva, but held the appellant Sanjay @ Nagin @ Sohan Pal guilty primarily on account of recoveries, namely, knife and a telephone.
4. It is contended by learned Counsel for the appellant that the knife which is stated to have been recovered at the instance of the appellant was shown to the doctor at which time the doctor opined that it was capable of causing the injuries suffered by the deceased. However, the doctor noted that the knife did not have any blood stains. This knife, according to the counsel, was sent to the CFSL where on a naked eye examination, was found to be blood stained. Learned Counsel submits that in all likelihood, the knife recovered has either not been sent to the CFSL or the same has been tampered with. He also submits that the recovery of the so called telephone which has weighed heavily with the trial court is also doubtful since Investigating Officer in his deposition states that the telephone recovered by him at the instance of the appellant was one which had 'MTNL' written on it. The words 'MPS' are conspicuously absent in his testimony. This witness also does not indicate that any recovery memo of the telephone was made by him. PW-17, SI Madhur Rakesh, who exhibited the recovery memo and is stated to be signatory thereof, in his deposition does not say that he signed the recovery memo of the telephone or that any such memo was prepared by the Investigating Officer. This by itself, learned Counsel submits is sufficient to give rise to suspicion that a telephone has been tampered with by writing 'MPS' on it.
5. Learned Counsel for the State has taken us through the recovery memo where it is mentioned that the telephone which has 'MPS' written on it was taken into possession. He has also heavily relied upon the report of the CFSL in respect of the knife and the blood stains on it.
6. Having heard counsel for the parties and with their assistance, examined the record of the case, we find that the prosecution has not been able to link the appellant with the crime in as much as the hair found in the clinched fist of the deceased did not match with that of the appellant. The recoveries effected from an open place accessible to all does not inspire confidence in as much as in the depositions, we find no mention of a seizure memo having been prepared of the telephone as also the identification mark was missing. We also find that the knife which was forwarded to the CFSL had blood stains. This knife was clean and spotless when shown to the doctor prior to its being dispatched to the CFSL. We further find that the charges framed against the appellant were under Sections 460/380/302/34 IPC, however, the trial court, when it had acquitted Sunil Kumar, could not have possibly convicted the appellant with the aid of Section 34 IPC. We also find that the prosecution has not been able to explain as to how the deceased was found naked. There is no explanation of the injury caused on the skull of the deceased. Taking the material on record in its totality, we find that the reasoning of the learned trial court in holding the appellant guilty is far too flimsy and imaginative. The benefit of doubt given to accused No. 1, Sunil Kumar and the reasoning thereon would squarely apply to the appellant Sanjay as well. Consequently, we set aside the judgment/order dated 18.03.2003 and acquit the appellant of all charges. Criminal Appeal No. 507/2003 is allowed. The appellant, who is in custody, shall be set at liberty forthwith, if not wanted in any other case.