Delhi District Court
State vs . Sanjeev Kumar Singh on 24 May, 2010
1
IN THE COURT OF SHRI S.P.GARG,
DISTRICT JUDGE IV/ASJ,NEW DELHI
S.C. No. 07/10/07
State vs. Sanjeev Kumar Singh
S/o Sh Raj Bahadur
R/o H213, Jaitpur Extn.
Badarpur, New Delhi
(presently lodged in J.C)
FIR No. 353/07
P.S. Okhla Indl. Area
U/s 302 IPC
Date of institution of the case : 31/07/2007
Date of committal of the case : 14.08.2007
Date when case reserved for orders : 11.05.2010
Date of announcement of judgment : 22.05.2010
J U D G E M E N T:
1 Accused Sanjeev Kumar Singh was arrested by the police of Police Station Okhla Industrial Area vide FIR No.353/07 and was challaned to the court for the commission of offence punishable u/s State Vs Sanjeev Kumar Singh Page 1/39 2 302 IPC. In nut shell, case of the prosecution is as under: FACTS 2 Present case was registered at PS Okhla Industrial Area on 3.5.2007 u/s 307 IPC on the statement of Sh Vishal. In his statement to the police, Sh Vishal disclosed that he was working as TSR driver and injured Pankaj was his brotherinlaw (Saala). On 3.5.2007 at about 8.20 PM he had gone to see Pankaj at Flour Mill at C29. There he saw Pankaj alongwith Gautam, Ajay and accused Sanjeev Kumar Singh consuming eatables while sitting on a Trolla No. HR47A4861. There Pankaj (since deceased) told accused Sanjeev Kumar, "Langre Peechhe Hatt" as he was to go to his home. On that an altercation took place between the accused and the deceased and they both started abusing each other in the name of mother and sister. On that the accused told the deceased that he always used to call him "LoolaLangra" and he would teach him a lesson. On that, the accused took out a knife like weapon from the pocket of his pant and stabbed Pankaj on his chest. Pankaj started bleeding and fell down then and there on the trolla and was smeared in blood. They started taking care of the Pankaj(since deceased). Finding an opportunity the accused slipped towards jhuggies. He caught hold the accused after running for some distance. Ajay removed the deceased in his canter to a doctor. Thereafter police reached at the spot and he handed over the custody of the accused to the police.
State Vs Sanjeev Kumar Singh Page 1/39 3 3 On 3.5.2007, HC Satyavir Singh was posted at PS Oklha Industrial Area and was on emergency duty. At about 8.32 PM he received an information that in front of C29, Okhla PhaseI, one person had been stabbed. On that information he alongwith Ct Hanuman reached at the place of incident and found that injured had already been taken by his friends to Jeevan Jyoti Hospital. In the meanwhile, SI Mahender Singh and Ct Bhagwan Singh also reached there on the basis of the information.
4 Complainant Vishal produced the accused to SI Mahender Singh. SI Mahinder Singh recorded above referred statement of the complainant Vishal. He left HC Satayvir Singh and Ct Hanuman and complainant Vishal at the spot and he alongwith Ct Bhagwan Singh reached at Jeevan Jyoti Hospital. There he came to know that injured had been taken to AIIMS. Accordingly, SI Mahender alongwith Ct Bhagwan Singh reached AIIMS and collected MLC of injured Pankaj. He was declared "unfit" for statement by doctor. Duty Constable produced clothes of the injured to SI Mahender and he seized vide seizure memo. SI Mahender Singh prepared rukka and got the present case registered by sending the same to PS through Ct. Bhagwan Singh. SI Mahender Singh reached at the spot. He summoned the crime team including the photographer. Photographer took photographs at the spot. SI Mahender Singh lifted exhibits from the spot, i.e. one bottle bearing words "Shokeen Masaledar"
containing small quantity of liquor; two glass tumblers and two plastic tumblers and prepared necessary seizure memo. He also lifted blood State Vs Sanjeev Kumar Singh Page 1/39 4 and earth control from the spot and prepared their pullandas and sealed them and seized vide seizure memo. He also seized blood stained raxine seat cover of Eicher Canter in which the injured was removed to hospital. SI Mahender Singh summoned the Welder at the spot and got the piece of floor of the truck cut where the blood was lying and sealed the same in a cloth parcel with seal of MS and prepared its seizure memo. He interrogated the accused. He also seized the blood stained Tshirt which the accused was wearing at the time of incident. He arrested the accused vide arrest memo and conducted his personal search.
5 At about 11.55 PM information was received from AIIMS vide DD No. 32A that injured Pankaj had expired. On that Insp. B S Rana, SHO PS Okhla Industrial Area reached at AIIMS and came to know that dead body had been shifted to the mortuary.
6 On 4.5.07, Insp. B S Rana interrogated the accused and recorded his disclosure statement. Efforts were made to recover the knife used in the incident pursuant to the disclosure statement made by the accused but the same could not be recovered. During further investigation, postmortem on the dead body of deceased was got conducted. After postmortem the dead body of the deceased was handed over to his father.
7 Further case of the prosecution is that on on 5.5.07, the accused was again interrogated and his disclosure statement was recorded. He led the police party near the place of incident and from a heap of garbage, he got recovered the knife used in the commission of the State Vs Sanjeev Kumar Singh Page 1/39 5 offence. IO prepared the sketch of the knife. Knife was put in a pullanda, sealed with the seal of BSR and its seizure memo was prepared. 8 During further investigation, IO produced weapon of offence before the doctor who conducted postmortem to seek his opinion. IO got sent the exhibits to FSL and subsequently collected FSL reports. IO recorded statements of the concerned witnesses at different stages of investigation and after completion of investigation filed challan for commission of the offence punishable u/s 302 IPC against the accused in the court of the concerned Metropolitan Magistrate.
COMMITTAL 9 After compliance of the provisions of sections 207 and 208 Cr.P.C, Ld. M.M committed the case to the Court of Sessions on 7.8.2007.
CHARGE 10 After hearing the learned Addl. P P for the State and learned defence counsel for the accused , charge for the commission of offence punishable u/s 302 IPC was ordered to be framed against the accused vide order dated 5.9.2007. The accused pleaded not guilty to the charge and claimed trial.
PROSECUTION EVIDENCE 11 To prove its case, prosecution examined 20 witnesses in all. State Vs Sanjeev Kumar Singh Page 1/39 6 The witnesses examined by the prosecution are PW 1Vishal, PW2 Ct Mohan Singh, PW 3 Ct George Kuti, PW 4 Ajay Kumar, PW 5 Marinal Rai, PW 6 Kailash, PW 7 ASI Kalyan Sahai, PW 8 Dr. Narhari Sharma, PW 9 Dr. Kamal, PW10 ASI Satyavir Singh, PW 11 Ct Bhagwan Singh, PW 12 SI Mahesh Kumar, PW 13HC Satya Narayan, PW 14 Dr Sukhdeep Singh, PW 15 SI Mahender Singh, PW 16 SI Kaialash Chand, PW 17 Ct Pramod, PW 18 B S Rana, PW 19 Dr Rajender Kumar and PW20 Srinarain.
STATEMENT OF ACCUSED AND DEFENCE 12 Statement of the accused was recorded u/s 313 Cr. P.C. 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 was at his Gas Cylinder shop at Tehkhand on 3.5.2007 at about 10.30 PM and was closing his shop when Ajay from whom he had to take some money, came in a vehicle with the police and got him apprehended. He had not committed murder of the deceased. He did not get recover any knife.
13 Accused produced DW1 Jitender Tiwari, DW2 Dr V K Gautam, DW3 Prof. (Dr) Mukesh Kalra and DW4 Dr Harmeet Singh in his defence.
ARGUMENTS 14 I have heard learned Addl. P P for the State, learned defence counsel Sh Avdesh Kumar Singh for the accused and have gone through State Vs Sanjeev Kumar Singh Page 1/39 7 the file.
15 Plea of learned Addl. P P for the State is that the prosecution has proved its case against the accused beyond reasonable doubt. Material eye witnesses have fully supported the case of the prosecution and there is nothing to disbelieve their positive testimonies. Weapon of offence used by the accused in the commission of the incident was got recovered by him.
16 On the other hand learned defence counsel for the accused has vehemently argued that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused has been falsely roped in this case. There are material contradictions, discrepancies and improvements in the statements of the prosecution witnesses which make it unsafe to convict the accused. Ingredients of section 302 IPC are not attracted in this case. The alleged occurrence had taken place all of a sudden during fight. Hence, ingredients of section 302 IPC are not attracted in this case. Complainant Vishal was not present at the spot. He was introduced as a false witness subsequently. No independent public witness was joined in the investigation. In the FSL report no blood was detected on the weapon of offence. It is further argued that the accused being handicap was unable to inflict the blow. DW4 Dr Harmeet Singh substantiated the version of the accused and testified that the blow at the height alleged by the prosecution was not possible by a handicapped person like the accused. PW Gautam Avasthi has not been examined by the prosecution in this case. State Vs Sanjeev Kumar Singh Page 1/39 8
FINDINGS 17 I have considered the arguments of the learned Addl. P.P for the State and the learned defence counsel for the accused and have scanned the testimonies of the witnesses examined by both the parties. 18 Case of the prosecution is being discussed as under:
(A) HOMICIDAL DEATH 19 Ld. Defence Counsel for the accused has not disputed that
deceased Pankaj had met with homicidal death. Only plea of the Ld. Defence Counsel for the accused is that the accused was not instrumental in causing homicidal death of deceased. He was murdered by Vishal, Ajay and Gautam as Vishal, brotherinlaw of the deceased had illicit relations with the wife of deceased Pankaj. 20 On perusal of the testimonies of the prosecution witnesses, it stands established that it is a case of culpable homicide. Material testimony on this aspect is that of PW14 Dr Sukhdeep Singh who had conducted postmortem on the dead body of the deceased. While appearing as PW14 Dr Sukhdeep Singh proved the postmortem report as Ex. PW14/A. As per this postmortem report, injuries depicted at Sl. No. 1 and 2 were found on the person of the deceased. He opined the State Vs Sanjeev Kumar Singh Page 1/39 9 cause of death as shock and haemorrhage consequent to injury no. 1 which was caused by a sharp edged weapon. Injury No. 1 was opined sufficient to cause death in ordinary course of nature. This witness further testified that on 3.5.07 weapon of offence was shown to him and on seeing the weapon of offence produced before him, he opined that injury No. 1 mentioned in the postmortem report could be produced by the said weapon. He also opined that cut no. 1 in the shirt could be produced by the said weapon. The opinion given by the doctor on this aspect are Ex. PW14/B and Ex. PW14/D. 21 In the crossexamination no suggestion was put to th1s witness if the deceased had died a natural death or it was a case of suicide. Hence, testimony of this expert witness regarding the cause of death of deceased has remained unchallenged and unrebutted. Other witnesses examined by the prosecution have also testified that the deceased met with homicidal death. Hence, I am of the view that it is a case of culpable homicide.
(B) DIRECT EVIDENCE OF PW AJAY 22 To infer the involvement of the accused in the commission
of the incident, material testimony is that of PW4 Ajay. In his deposition before the court, PW4 Ajay testified that in the year 2007, he was working as driver on canter No. HR38G7534 and the canter belonged to one Sh Ramesh. On 3.5.07, he was present on the said canter stationed in front of the office of the company at Okhla. One Pankaj used to work as casual State Vs Sanjeev Kumar Singh Page 1/39 10 labour on the said vehicle and he used to go with the vehicle for loading and unloading purposes. On 3.5.07, at about 8.00 or 8.15 PM when the said vehicle was standing in front of the company office, accused Sanjiv reached there and he was under the influence of liquor. Accused and the deceased Pankaj, both sat on another traula and started consuming liquor. Deceased Pankaj called accused Sanjiv "LangraLula" and thereafter they started abusing. He asked accused Sanjiv to return to his house. Meanwhile, accused Sanjiv came down from the traula. He (PW Ajay) also asked deceased Pankaj to return to his house. After few minutes deceased Pankaj asked accused Sanjiv to go back to his house and on that, accused again abused deceased Pankaj and they started hot talks. Deceased Pankaj sat on the traula and asked the accused what he could do. Meanwhile, accused took out knife from his pant and gave blow on the chest of deceased Pankj on left side. Deceased Pankaj cried that he had been given knife blow. Blood started oozing out from the injury. Meanwhile, accused Sanjiv started moving from there. He alongwith Gautam and Vishal, firstly checked Pankaj. Thereafter on seeing the condition of Pankaj, he brought his vehicle. Meanwhile, Vishal went to chase the accused. He alongwith Gautam and some other public persons brought injured Pankaj to Jeevan Jyoti Nuarsing Home where he was given first aid. Meanwhile, one policeman also reached there and thereafter Pankaj was taken to AIIMS.
23 This witness further stated that raxine seat cover of the vehicle in which injured Pankaj was removed to hospital was seized by State Vs Sanjeev Kumar Singh Page 1/39 11 the IO vide seizure memo Ex. PW1/E. Raxine seat covered seized was identified by this witness as Ex. P3.
24 This witness was tested in crossexamination by the Ld. Counsel for the accused. In the crossexamination, the witness stated that deceased was known to him for about two months prior to the incident and accused was known to him for about 4 to 5 months prior to the incident. They had taken Pankaj to Jyoti Jeevan Hospital at about 8.30 PM or 8.45 PM. In the hospital, he had told that the injuries were inflicted with knife by the accused. They stayed at Jeevan Jyoti Hospital for about 15 minutes and thereafter injured was taken to AIIMS. They reached AIIMS at about 10.00PM. His statement was recorded at the spot. He did not not know Vishal prior to the incident. Knife was not recovered from the accused in his presence. Witness denied the suggestion that he alongwith Gautam and Vishal committed murder of Pankaj as he (Pankaj) used to object illicit relations of Vishal with his wife.
25 Over all testimony of this witness reveals that this witness has claimed himself to be an eye witness to the incident. Presence of the witness at the spot at the time of the incident has not been controverted in the cross examination. No suggestion was put to this witness in the cross examination that he was not present at the spot at the time of incident or that he was present at any other specific place at that time. Accused also did not deny his presence at the spot at the time of occurrence. He did not plead his presence at any other place at that time. State Vs Sanjeev Kumar Singh Page 1/39 12 In the statement recorded u/s 313 CrPC , the accused came up with the plea that he was lifted by the police from his shop at Teh Khand at about 10.30PM. No such suggestion was put to this witness in the cross examination, if accused was present at his shop at Tehe Khand at the time of occurrence. No suggestion was put to this witness in the cross examination if the accused was lifted by the police in the presence of this witness at about 10.30 PM from his shop. The assertion of this witness working as driver on Canter No. HR38G7534 is not denied. Being driver on the canter in questin presence of this witness at the spot was natural and probable. No motive was imputed to this independent public witness for levelling serious allegation of murder against the accused. Nothing was suggested to this witness if there was any animosity with the accused prompting him to level false allegations of murder against him. There was no enmity whatsoever with the accused and the deceased prior to the incident. The accused had not lodged any complaint on any ground against this witness showing strained relations between the two. In the absence of any prior ill will, this witness is not expected to falsely implicate the accused in the incident.
26 Even deceased Pankaj was not related to this witness. Deceased Pankaj was working as casual labourer on the vehicle alongwith this witness. In the crossexamination, this witness stated that deceased Pankaj was known to him for the last about 2 months. So there was no special relation of this witness to make false deposition for the murder of the deceased against the accused. In the crossexamination, State Vs Sanjeev Kumar Singh Page 1/39 13 suggestion was put to this witness that he alongwithy Gautam and Vishal committed murder of the deceased as Vishal had illicit relations with the wife of the deceased and deceased Pankaj used to object to that. Ld. Counsel for the accused failed to give any basis for this allegation against the witness alongwith Vishal and Gautam. Nothing has come on record to show as to how and from where the accused came to know if there were illicit relations between complainant Vishal and the wife of the deceased. Accused did not examine any witness from the family members of the deceased or from the locality of the deceased to infer if there were objectionable relations between the complainant Vishal and the wife of the deceased. In the absence of any proof whatsoever or any incident of that nature on record, it can't be inferred that there were objectionable relations between the complainant Vishal and the wife of deceased which had forced them to commit murder of the deceased. Nothing has come on record to show if the accused had ever complained before any family members of the deceased or to the police about the alleged illicit relations of complainant Vishal with wife of the deceased. There is nothing on record to show if wife of the deceased or any of her relations had ever complained about the illicit relations between the two. Again, there is nothing on record to show if the accused himself had ever picked ;up any quarrel with the complainant Vishal for any such untoward incident. 27 Prosecution has examined PW5 Sh Mrinal Rai, father of the deceased. He was cross examined by the Ld. Counsel for the accused State Vs Sanjeev Kumar Singh Page 1/39 14 regarding the alleged illicit relations of complainant Vishal with the wife of the deceased Pankaj. In the crossexamination PW5 Sh Mrinal Rai categorically denied if Vishal had illicit relations with the wife of deceased Pankaj. He also denied the suggestion of the Ld. Defence Counsel that Vishal committed murder of deceased Pankaj. PW5 Mrinal Rai, father of the deceased Pankaj must be interested to bring the real culprit to book. He is not imagined to let the actual culprit go scotfree and to falsely implicate an innocent person. Had Vishal committed murder of deceased Pankaj as alleged, PW5 Mrinal Rai, father of the deceased must have not exonerated him for the heinous offence. Wife of the deceased Pankaj never came forward to allege if there were any objectionable relations with Vishal. In the statement recorded u/s 313 CrPC, the accused did not at all plead that Vishal was having illicit relations with the wife of the deceased Pankaj or that he committed murder of the deceased. Accused also did not adduce on record any evidence to infer that there were objectionable relations between complainant Vishal and wife of the deceased or that deceased used to object to that relations and the complainant alongwith his associates committed murder of the deceased. The defence taken by the accused seems improbable. 28 Presence of PW4 Ajay at the spot has been substantiated by the fact that he had removed the injured Pankaj to hospital from the spot. First the injured Pankaj was taken to Jeevan Jyoti Nursing Home, Tehkhand and subsequently he was taken to AIIMS. This conduct of the witness removing the injured to hospital soon after the incident is quite State Vs Sanjeev Kumar Singh Page 1/39 15 natural and establishes his presence at the spot beyond doubt. 29 PW8 Dr Narhari Sharma was present at Jeevan Jyoti Nursing Home. He has appeared as a witness and has testified that on 3.5.07, he was present at his hospital when Ajay alongwith eight other people had brought one patient namely Pankaj, male, 22 years with the alleged history of chest injury stabbed by knife by Mr Sanjeev, non patient.He had given first aid and done dressing as there was no active bleeding. He then referred the injured to government hospital. This witness proved the medical report prepared by him as Ex. PW8/A. The witness further stated that he had informed the police as well and the police had arrived when the patient was being examined by him. 30 In the crossexamination the witness stated that patient was brought on 3.5.07 at about 8. 45 PM. The patient was in semi conscious condition. Patient had consumed liquor. The patient himself had disclosed that he had been stabbed by a knife and on further inquiry, he told that he had been Stabbed by Sanjay. The witness denied the suggestion that information was given to him by Ajay. The doctor clarified that Ajay had also told him that information in addition to Pankaj. 31 The entire examination of PW8 Dr Narhari Sharma substantiate the presence of PW Ajay at the spot as he alongwith others had removed the injured Pankaj to Jeevan Jyoti Nursing Home, Tehkhand. Presence of PW Ajay at the Nursing Home of PW8 Dr Narhari Sharma has not been denied in the crossexamination of PW8. Had PW Ajay been associated with murder of the deceased alongwith State Vs Sanjeev Kumar Singh Page 1/39 16 Vishal as alleged, he must have not removed the injured Pankaj to Jeevan Jyoti Nursing Home.
32 MLC Ex. PW8/A categorically records presence of PW Ajay at Jeevan Jyoti Nursing Home. Prosecution has further proved on record MLC of deceased Pankaj prepared by Dr Sarfraz Alam Ex PW9/A at AIIMS. PW9 Dr. Kamal has proved the MLC Ex. PW9/A prepared by Dr Sarfraz Alam. In this MLC in the alleged history, name of eye witness Ajay finds mention. It is further mentioned therein that alleged history regarding assault was disclosed by Ajay.
33 All these facts as recorded in both the MLCs Ex. PW8/A prepared by PW8 Narhari Sharma of Jeevan Jyoti Nursing Home and E. PW9/A proved by PW9 Dr Kamal and prepared by Dr Sarfraz Alam of AIIMS respectively were not expected to be concocted as no case had been registered against the accused by that time.
34 There is nothing on record to discard the testimony of PW4 Ajay who had witnessed the incident. This witness gave graphic detail as to how and under what circumstances the accused happened to reach at the spot and started consuming liquor with the deceased Pankaj. This witness further narrated the entire incident as to how an altercation took place between the accused and the deceased when the accused dubbed him as "LoolaLangra" and that annoyed the accused forcing him to inflict stab injury on the vital organ of the deceased. Material facts asserted by PW Ajay in his examinationinchief have remained unchallenged and un rebutted in the crossexamination. No material discrepancies have been State Vs Sanjeev Kumar Singh Page 1/39 17 elicited in the crossexamination of the witness to disbelieve his positive testimony. This witness had no ulterior motive to exonerate the real culprit. The conduct of the witness during the incident and subsequent to the occurrence was quite normal/natural. The witness was not going to be benefited for making false statement against the accused.
(C) TESTIMONY OF PW VISHAL 35 Prosecution has further relied upon the testimony of PW1
Vishal, who is a the complainant in this case and on whose statement Ex PW1/A, present case was registered by police of PS Okhla Industrial Area. In his complaint Ex. PW1/A, the witness claimed his presence at the spot at the time of incident. He disclosed to the police that the accused had stabbed his brotherinlaw Pankaj on his chest in his presence and the accused was apprehended by him at some distance after giving a chase to him. Thereafter custody of the accused was handed over to SI Mahender Singh, who thereafter recorded his statement Ex. PW1/A. In his deposition before the court also as PW1, complainant Vishal testified that on 3.5.07, as some relatives had come from the house of Pankaj, he had gone to call and see his brotherinlaw Pankaj at flour mill, C29, Tehkhand, PhaseI and he found him sitting on traula No. HR47A4861 alongwith his friends driver Ajay, Gautam and accused Sanjeev Kumar, who were taking liquor and eating. PW1 Vishal further testified a quarrel took place between the accused and the deceased when deceased called the accused "Langra". Accused Sanjeev Kumar picked up something from his pocket and caused injuries on the State Vs Sanjeev Kumar Singh Page 1/39 18 left side of chest of deceased Pankaj. Accused ran away and then he chased the accused and caught hold him Meanwhile Ajay took injured Pankaj to hospital. He handed over the custody of the accused to the police who had reached at the spot and his statement Ex. PW1/A was recorded. He then went to Jeevan Jyoti Nursing Home and from where he came to know that the injured had been taken to AIIMS. 36 From the above testimony of PW1 Vishal, it reveals that he has claimed himself to be an eye witness to the incident. However, on scanning the entire case of the prosecution, I am of the considered view that prosecution has failed to prove the presence of this witness at the spot at the time of stabbing incident. This witness admittedly is the relative of deceased Pankaj and is an interested witness. Presence of this witness at the spot was not natural or probable. He did not inform the police regarding the incident soon after the occurrence. Admittedly, the witness did not remove the injured to the hospital. Being close relation of the deceased, after having seen the grevious/dangerous injuries on the vital organ of the deceased the natural conduct of this witness could have been to rush him to the hospital. This witness allegedly remained present at the spot to make his statement to the police after its arrival. The incident took place at about 8.20 PM and the rukka was sent by the IO/SI Mahender Singh from the spot at about 10.30PM. It is highly improbable that the witness would remain present at the spot for such a long duration when injured had sustained fatal injuries on his person.
State Vs Sanjeev Kumar Singh Page 1/39 19 37 Presence of this witness at the spot was not claimed even by PW5 Mrinal Rai, father of the deceased. In his crossexamination PW5 Mrinal Rai specifically admitted that Vishal was not present at the place of occurrence. He further stated that Ram, soninlaw of his brother had made a telephone call to Vishal and had informed him that Pankaj had been stabbed and was being taken to AIIMS. The prosecution did not crossexamine this witness on this aspect to show that complaint Vishal in fact was present at the spot. PW5 Mrinal Rai, father of the deceased had no ulterior purpose to twist the facts to weaken the case of the prosecution. PW5 has rather given true version of the incident and has testified that Vishal was not present at the spot at the time of incident. Had Vishal been present at the spot at the time of occurrence he must have immediately informed the parents of the deceased including PW5 Mirnal Rai regarding the incident. PW5 Mirnal Rai did not state that he got information regarding the incident from Vishal. Rather he has stated that the complainant Vishal received information regarding the stabbing incident from soninlaw of his brother namely Ram. 38 PW4 Ajay also did not depose in his examinationinchief that at the time of occurrence, PW1 Vishal was present at the spot or that he had witnessed the stabbing incident. PW4 Ajay did not testify if during quarrel or stabbing incident, PW1 Vishal had intervened or had removed the injured to the hospital. In the crossexamination PW4 Ajay rather clarified that Vishal reached at his motorcycle at about 7.30 PM. Thereafter he left the spot and again came at the spot immediately after State Vs Sanjeev Kumar Singh Page 1/39 20 the incident. Again no crossexamination of this witness was done by the Ld. Addl. PP for the State to get clarification about the presence of PW1 Vishal at the spot.
39 Prosecution did not examine any other witness from the locality to show presence of PW1 Vishal at the spot at the time of incident. All these facts and circumstances of the case rule out presence of the complainant PW1 Vishal at the spot prior to the occurrence. Presence of complainant at the spot subsequent to the occurrence is of course can't be doubted as he had reached there after getting information about the incident.
(D) TESTIMONY OF PW DR. NARHARI SHARMA 40 Case of the prosecution has been strengthened by the
deposition of PW8 Dr. Narhari Sharma who had medically examined the injured Pankaj soon after the occurrence and had prepared his medical report Ex. PW8/A. Pankaj was in semiconscious condition at that time and was able to give alleged history to the doctor. In his deposition before the court PW8 Dr. Narhari Sharma specifically testified that Pankaju himself had given alleged history of chest injury stabbed by knife by Mr Sanjiv, nonpatient. The witness in his crossexamination denied that this alleged history about the assault was given by PW Ajay. The witness rather clarified that Ajay had also told him that information in addition to Pankaj. There is nothing to discard the independent version given by this witness in his deposition before the court. This witness was not having any acquaintance with the deceased or his relations to favour the State Vs Sanjeev Kumar Singh Page 1/39 21 prosecution. This witness was not having any enmity or strained relations with the accused to falsely manipulate the alleged history recorded in the medical report Ex PW8/A. This witness had performed his duty as per his profession and had provided first aid to the injured on 3.5.07 at about 8.45 PM when he was brought in injured condition by PW4 Ajay alongwith his associates. This witness further performed his duty by informing the police regarding the incident. The witness further performed his duty when he referred the patient/injured Pankaj to AIIMS. In the crossexamination the witness voluntarily stated that he had first inquired from Pankaj who had disclosed all the facts. Pankaj remained in his clinic for about 5 to 7 minutes. One Assistant Haridev was present inside the dressing room. He further clarified that he inquired about the history of injuries before arrival of the police. No suggestion was put to the witness in the crossexamination if deceased Pankaj was not fit to make any such statement before him about the injuries sustained by him. In the absence of any prior ill will or enmity, this witness performing his duty can't be disbelieved. In the alleged history recorded in Ex. PW8/A, there is specific mention that injured Pankaj himself narrated to the doctor that he was stabbed by Mr Sanjeev, a known person to him. The accused was specifically named by the injured in his statement before the doctor PW8 Dr Narhari Sharma which can now be treated as dying declaration to the doctor PW8 Dr. Narhari Sharma. This dying declaration of Pankaj is enough to corroborate the version given by PW4 Ajay regarding the stabbing incident.
State Vs Sanjeev Kumar Singh Page 1/39 22
(E) MLC OF DECEASED 41 PW9 Dr. Kamal has proved MLC Ex. PW9/A prepared by
Dr. Sarfraz Alam. Preparation of MLC Ex. PW9/A by Dr Sarfraz Alam has not been controverted in the crossexamination of the witness. I have gone through the contents of MLC Ex. PW9/A where the patient Pankaj was stated to have been brought by one Pramod Kumar from PS Okhla Industrial Area. Again in this MLC Ex. PW9/A, there is mention of physical assault given by some known person Sanjiv. In this MLC Ex. PW9/A there is mention that alleged history of assault was given by Ajay. The weapon of offence was disclosed as knife by Ajay. Again in the MLC Ex. PW9/A name of the accused specifically finds mention whereby he stabbed the injured Pankaj over left side on his chest with knife. PW4 Ajay is not expected to concoct false statement made before the doctor who medically examined the injured Pankaj vide MLC Ex. PW9/A. Alleged history recorded in Ex. PW9/A containing the sequence of the incident and the name of the accused to be the person who had stabbed the deceased is another piece of incriminating circumstance to corroborate the testimony of PW4. Contents of MLC Ex. PW9/A are in consonance with the oral testimony of PW4 Ajay and lends credence to his deposition made before the court.
(F) CIRCUMSTANTIAL EVIDENCE 42 Case of the prosecution is further strengthened by
circumstantial evidence. The incriminating circumstance relied upon by the prosecution are discussed as under: State Vs Sanjeev Kumar Singh Page 1/39 23
(a) Recovery of Blood Stained Shirt 43 Case of the prosecution is that blood stained "T" shirt which the accused was wearing at the time of incident was seized in this case. PW15 SI Mahender Singh testified in his examination that the accused was interrogated and his blood stained "T" shirt which he was wearing at the time of incident was seized vide memo Ex. PW1/H. During investigation "T" shirt was sent to FSL and FSL report was received. As per the FSL reports Ex. PW19/A and Ex. PW18/F, human blood of "O" group was detected on the shirt Ex. P2.
44 The accused did not deny seizure of "T" shirt Ex. P2 by the IO PW15 SI Mahender Singh at the time of his arrest on the day of incident. In the crossexamination, no such suggestion was put to PW15 SI Mahender Singh that "T" shirt Ex. P2 did not belong to the accused or that it did not have any blood stains on it. The accused did not examine any witness from his family to show that "T" shirt Ex. P2 did not belong to him or that he was not wearing the said shirt at the time of incident. As per FSL report Ex. PW19/A, human blood was detected on the "T" shirt Ex. P2. During investigation alongwith "T" shirt Ex. P2 belonging to the accused, clothes of the deceased Pankaj were also sent and it was opined that all these clothes contained blood of "O" group. Blood of "O" group belonged to the deceased as it was found on his clothes. The accused has failed to explain as to how and under what circumstances his "T" shirt Ex. P2 got the blood stains of human origin and that too of the blood group of the deceased. This circumstances points an accusing State Vs Sanjeev Kumar Singh Page 1/39 24 finger against the accused and further establishes his presence at the spot at the time of occurrence.
(b) Recovery of weapon of offence 45 Prosecution has further relied upon another circumstance of
recovery of weapon of offence, i.e. knife Ex. PW11/1 at the instance of accused in pursuance of his disclosure statement Ex. PW11/B. PW18 Insp. B S Rana testified that on 5.5.07 accused was taken out of the lock up and was interrogated by him in the presence of SI Mahender Singh and Ct Bhagwan Singh. Accused made disclosure statement Ex. PW11/B and thereafter he led the police team in front of C29, Okhla Industrial Area, PhaseI near the place of incident. A latrine van was parked there and behind that there was a heap of garbage. From the said garbage, the accused himself took out the knife which was within his knowledge. He prepared sketch of the knife vide memo Ex. PW11/C. There was blood stains on the knife. Knife was sealed in a pullanda with seal of BSR and was seized vide seizure memo Ex. PW11/D on 5.5.07. In the cross examination, he witness clarified that on 4.5.07 efforts to recover the weapon of offence in pursuance of earlier disclosure statement of the accused were made but it could not be recovered on that day. On 5.5.07, he made DD entry after recording disclosure statement made by the accused before leaving the police station. Witness denied the suggestion that knife Ex. PW11/1 was not recovered at the instance of the accused or that it was planted upon him subsequently.
46 Testimony of PW18 Insp. B S Rana inspires confidence State Vs Sanjeev Kumar Singh Page 1/39 25 regarding recovery of knife Ex. PW11/1 at the instance of the accused in pursuance of his disclosure statement. Case of the prosecution itself was that deceased had been stabbed with knife. As per the testimony of the prosecution witnesses including PW4 Ajay after the infliction of injury on the person of the deceased, the accused had slipped away from the spot and was apprehended at some distance. Under these circumstances, possibility of the accused to have concealed or thrown the weapon of offence in the heap of garbage near the place of occurrence can't be ruled out.
47 There was no occasion for the IO to again record the disclosure statement of the accused on 5.5.07 when the police had failed to recover the weapon of offence on 4.5.07 after the occurrence. PW18 Insp. B S Rana clarified that after one day police remand of the accused was taken, the accused informed that he was tired and that he had made a mistake and that he would disclose every thing if he was allowed to take rest. The accused then was put in the lock up and was taken out of the lock up on 5.5.07. Had there been any fabrication, the police could have planted the weapon of offence on 4.5.07 itself. 48 PW15 SI Mahender Singh has also supported PW18 Insp. B S Rana on this aspect and has stated that on 4.5.07, he had recorded disclosure statement of the accused vide disclosure statement Ex. PW15/B. However, the accused again made another disclosure statement Ex. PW11/B on 5.5.07 and in pursuant thereto, he got recovered the knife used as weapon of offence from in front of plot No. C State Vs Sanjeev Kumar Singh Page 1/39 26 26, Service Road, Okhla Industrial Area Phase I, from the ''kabad'' belonging to a kabari. The knife was sealed after preparing its sketch Ex. PW11/C vide seizure memo Ex. PW11/D. The material facts asserted by this witness regarding recovery of the knife have remained unchallenged in the crossexamination. Witness fairly admitted that no eye witness was present at the time of recovery of weapon of offence. The accused did not deny that he had not made any disclosure statement Ex. PW11/B and did not get recover the knife Ex. PW11/1 in pursuance of the said disclosure statement.
49 Similarly, PW11 Ct. Bhagwan Singh also has supplemented the statement of PW15 SI Mahender Singh and PW18 Insp. B S Rana and testified about the recovery of knife Ex. PW11/1 at the instance of accused in pursuance of his disclosure statement. No material discrepancies have been elicited in the crossexamination of this witness. The police witnesses are not expected to plant the knife in question upon the accused in the absence of any prior enmity. 50 During investigation, this knife Ex. PW11/1, was sent to doctor who had conducted postmortem on the dead body of deceased for seeking his opinion. PW14 Dr. Sukhdeep Singh, who had conducted postmortem on the dead body of deceased Pankaj examined the knife Ex. PW11/1 and gave his opinion Ex. PW11/D. He opined that injury No. 1 mentioned in the postmortem report could be produced by the weapon produced before him, i.e. a single sharp edged knife with pointed end having a round smooth wooden handle. The doctor prepared sketch of State Vs Sanjeev Kumar Singh Page 1/39 27 the knife also which is Ex. PW14/C. He also opined after examining the shirt that cut no. 1 in the shirt of the deceased could be produced by the said weapon of offence.
51 In the crossexamination the expert witness stated that there were blood stains on the blade of knife Ex. PW11/1 and the clothes. The reddish brown stains had dried up. The knife was an old knife. No suggestion was put to this witness that injuries sustained by the deceased were not possible with the weapon of offence produced before him.
52 During further investigation, this knife Ex. PW11/1 was sent to FSL and as per the FSL reports Ex. PW18/F and Ex. PW19/A, human blood was detected on the weapon of offence. There was no reaction regarding the blood group.
53 The detection of the human blood on the weapon of offence, knife Ex. PW11/1 got recovered by the accused is also an incriminating piece of circumstance against the accused as he has failed to explain as to how and in what manner he happened to be in possession of knife Ex. PW11/1 at the time of occurrence or that how and in what circumstance human blood happened to be there on the blade of the knife Ex. PW11/1 .
(c) Motive 54 The prosecution has established motive of the accused to
inflict injuries on the person of the deceased. It has come on record that State Vs Sanjeev Kumar Singh Page 1/39 28 soon prior to the occurrence the accused and deceased were consuming liquor and an altercation took place between the two on calling of the deceased to the accused as "LoolaLangra". This utterance by the deceased provoked the accused to react to inflict fatal injuries on the person of the deceased. Since the accused was handicap, possibility of deceased to call the accused as "LoolaLangra" under the influence of liquor during altercation can't be ruled out.
(G) DEFENCE OF ACCUSED 55 The accused did not give plausible defence explanation to
the incriminating circumstance appearing against him in his statement recorded u/s 313 CrPC . He merely expressed his ignorance to the incriminating circumstances put to him regarding the incident. He further pleaded that he was present at his stop at about 10.30 PM on 3.5.07 and when he was closing his shop Ajay from whom he had to take some money came in a vehicle with the police and he was apprehended from there and was falsely implicated in this case. This defence of the accused taken for the first time in his statement recorded u/s 313 CrPC does not inspre confidence. The accused did not explain as to when Ajay had taken any money from him and if so what was the exact amount borrowed by him and when he was to return it. In the crossexamination of PW4 Ajay, nothing was suggested to him if he had borrowed any amount from the accused or that he had falsely implicated the accused when he failed to return the said amount to him. Accused did not examine any witness to show under what circumstances, PW4 Ajay was forced to State Vs Sanjeev Kumar Singh Page 1/39 29 take any amount from him. The accused did not produce any documentary evidence on record to show to how and in what circumstance money was disbursed to PW4 Ajay.
56 In the statement recorded u/s 313 CrPC the accused did not plead that Vishal had illicit relations with the wife of the deceased Pankaj or that he had murdered Pankaj in conspiracy with PW Ajay and PW Gautam. Earlier in the crossexamination of PW1 Vishal, suggestion was put to him that he was not present at the spot. If PW1 Vishal was not present at the spot, where was the occasion for him to commit murder of the deceased Pankaj? Presence of PW1 Vishal at the spot at the time of occurrence was not believed by the court in the discussion made above. No suggestion was put to PW1 Vishal in the crossexamination that he had committed murder of the deceased Pankaj in connivance with PW Ajay and PW Gautam. Nothing was suggested to this witness in the crossexamination if he was having illicit relations with wife of the deceased. Only for the first time in the crossexamination of PW4 Ajay, the accused came up with the defence that PW4 alongwith PW Gautam and PW Vishal committed murder of Pankaj as there illicit relations of Vishal with his wife. In the statement recorded u/s 313 CrPC, no such plea was taken by the accused that PW4 Ajay had committed murder of the deceased . The defence taken by the accused is entire contradictory. 57 The accused did not produce any evidence in defence to prove if PW4 Ajay had taken any amount from him at any time. Accused examined defence witnesses only in attempt to prove that because of his State Vs Sanjeev Kumar Singh Page 1/39 30 physical condition being handicap, he was unable to inflict stab injuries on the person of the deceased. Case of the accused is that since he was handicap and was polio stricken, he was unable to use his arms to inflict fatal blow.
58 On scrutinizing the entire evidence on this aspect, I am of the considered view that the accused has failed to prove that fatal blow sustained by the deceased on his person could not have been inflicted by the accused. In the crossexamination of PW4 Ajay, no such suggestion was put to him that accused was not physically capable to inflict any such injury on the person of the deceased. PW 14 Dr. Sukhdeep Singh who conducted postmortem on the dead body of deceased, in the cross examination testified that the accused could not have used his left hand for causing injury no. 1 as it was polio stricken and could not be lifted. Witness further testified that he had examined right hand of the accused and it had sufficient grip to cause injury no. 1 with the weapon. This statement of the expert witness was not controverted further by the ld. Defence Counsel for the accused.
59 The accused examined DW4 Dr Harmeet Singh from Deen Dayal Upadhayay Hospital, who in his examinationinchief deposed that he had examined the accused when he was referred from Central Jail, Tihar to DDU hospital on 1.4.09 with the complaint of weakness of both upper limbs and restriction of joint movements. On examination, it was found that the patient was suffering from post polio residual palsy of both upper limbs. His muscle charting was done and it was found that he had State Vs Sanjeev Kumar Singh Page 1/39 31 flial left upper limb and very weak shoulder muscles of right upper limb. He was advised MRI/CT scan. After examination, he was advised shoulder arthodesis of right shoulder but he did not report for surgery. The status of the muscle charting was noted on OPD Slip No. 160450 which is Ex. DW4/A. On specific query of the Ld. Defence Counsel, the witness stated that there was set grading of muscle power. These were classified in 5 grades from 0 to 5. Grade "0" meant ''no'' movement at all. Grade 5 meant full power and movements. Grade 3 meant movement was possible but not possible against gravity. The witness further clarified that patient could use his right hand, wrist and elbow. He could not use his right shoulder fully although some movement was possible with right shoulder.
60 From the testimony of this expert witness examined by the accused in his defence, it can't be inferred that the accused was physically incapable to inflict stab injury on the person of the deceased. Dr. Harmeet Singh (DW4) has specifically revealed that accused was given Grade ''3'' while ascertaining muscle power and as per Grade 3 movement was possible but not against gravity. The accused could use his right hand, wrist and elbow. Since the fatal injury was inflicted on the chest of the deceased which was 1.2 meter from the heel as disclosed by PW14 Dr Sukhdeep Singh in the crossexamination, the possibility of the accused to use his right hand which had sufficient grip to inflict the fatal blow can't be ruled out.
61 PW14 Dr. Sukhdeep Singh also in the crossexamination State Vs Sanjeev Kumar Singh Page 1/39 32 testified that he had examined right hand of the accused which had sufficient grip to cause injury no. 1 with the weapon. Hence, the defence taken by the accused that he was physically incapable to inflict injuries being handicapped and polio stricken can't be believed in view of the categorical ocular testimony of PW4 Ajayand testimony of PW14 Dr Sukhdeep Singh and even the testimony of DW4 Dr. Harmeet Singh.
(H) OTHER ARGUMENTS 63 It is true that the prosecution failed to examine PW Gautam
who was also present at the placae of occurrence. However, non examination of PW Gautam before the court again is not fatal. It has come on record that efforts were made to trace this witness. However, he could not be traced. No adverse inference can be drawn against the prosecution for withholding PW Gautam as efforts were made to trace him during investigation, but he could not be found. The accused also did not dare to produce the said witness Gautam to prove his innocence. 62 Minor contradictions, discrepancies and improvements in the statements of the prosecution witnesses are not fatal to the case of the prosecution as they do not go to the root of the case. The prosecution, no doubt, had produced PW1 Vishal to strengthen its case claiming him to be an eye witness of the occurrence but that itself is not sufficient to reject the otherwise cogent testimony of PW4 Ajay coupled with circumstantial evidence on record. Even if the testimony of PW1 Vishal is excluded, there is enough evidence on record to establish that State Vs Sanjeev Kumar Singh Page 1/39 33 stab injury was caused on the person of the deceased by the accused.
(I) CONCLUSION 64 In view of the above discussion, I am of the view that
injuries were inflicted by the accused with knife Ex. PW11/1 intentionally on the person of deceased Pankaj.
(J) OFFENCE PROVED?
65 Regarding section 302 IPC I am of the view that prosecution has failed to prove that the accused had intention to commit murder of the deceased or that the accused had intentionally caused bodily injuries sufficient to cause death in the ordinary course of nature. It has come on record that the accused and the deceased were having no prior enmity. The accused and the deceased were known to each other since long. There were no strained relations whatsoever between the two. On the day of incident, the accused had reached to the deceased at his place of work. The accused and the deceased alongwith PW4 Ajay and Gautam had started consuming eatables while sitting on Trolla No. HR47A4861. Both the accused and the deceased had consumed liquor. As per the MLC Ex. PW9/A prepared by Sarfraz Alam the deceased was having smell of alcohol at time of his medical examination. IO had also seized the bottle containing liquor and the tumbler glasses at the spot. When both the accused and the deceased were consuming liquor and eatables an altercation took place between the two when the deceased called the accused "Loola Langra". That provoked the State Vs Sanjeev Kumar Singh Page 1/39 34 accused to inflict injury on the person of the deceased. The accused had not come prepared to commit murder of the deceased to cause bodily injuries sufficient to cause his death in the ordinary course of nature. Had it been so, the accused must have not consumed liquor and other eatables alongwith the deceased and other associates of the deceased. The accused was not anticipating deceased to call him "LoolaLanga". Only when the deceased dubbed the accused "LoolaLangra" an altercation took place all of sudden.
66 It has further come on record that after inflicting stab injury, the accused did not repeat blow on the vital organs of the deceased. Only one stab injury as described in the MLC Ex. PW9/A was found on the person of the deceased. Deceased had not become unconscious due to stab injury. Rather at the time of his medical examination by PW8 Dr. Narhari Sharma, deceased was found semiconscious and had narrated the stabbing incident to the doctor himself. The accused did not act in cruel manner and did not take advantage of the situation. It was the bad luck of the deceased that a single blow inflicted with knife proved fatal. 67 The authority titled, Liaqat ali Vs. State of NCT Delhi, 167 (2010) DLT 422 (DB), of our own Hon'ble High Court is fully applicable to the facts and circumstances of this case. In the said case, Hon'ble High Court converted the sentence from Section 302 IPC to Section 304 Part - I, IPC though the accused therein had brought a knife from the nearby shop and had inflicted injuries on vital organ of the deceased. It was observed by the Hon'ble High Court that the appellant therein was not State Vs Sanjeev Kumar Singh Page 1/39 35 carrying any arms and in heat of moment, he had brought knife from shop of PW1 Pravez, who also intervened in the altercation. It was not the case in which it can be said that the appellant inflicted injuries on the person of the deceased with intention to kill or that he had intention to cause such bodily injuries to the deceased which would be sufficient to cause death in the ordinary course of nature. It was further observed from the facts of the case that in a fit of anger, because of improper act of the deceased in encouraging the boys to take smack, the appellant lost his sense of discrimination and gave knife blows to the deceased, which blows unfortunately fell on the chest and back of the deceased and proved to be fatal.
68 In the present case, the accused had given one stab blow on the person of deceased when an altercation took place between him and the deceased in a sudden fight. There was no prior hostility between the accused and the deceased prompting the accused to take extreme step to murder him.
69 Similarly, the authority reported the case of Indrasan Vs State of UP, 2009(3) JCC 1998 of the Hon'ble Supreme Court is also fully applicable to the facts and circumstances of this case. In the said case the accused was having grudge against the deceased. On seeing the deceased very next morning, accused simply picked up a lathi and with that gave forcible blow on the head of the deceased which resulted in his death within an hour. Considering the nature of injury on the vital part of the body, the Hon'ble Supreme Court observed that there was State Vs Sanjeev Kumar Singh Page 1/39 36 intention to cause death. Conviction was altered from section 302 IPC to section 304 PartI, IPC.
(K) RESULT 70 In view of my above discussion I am of this view that the
prosecution has failed to prove all the ingredients of section 302 IPC. It is in my considered view a case of culpable homicide and the accused is liable to be punished under section 304 PartI IPC. 71 Accused Sanjeev Kumar Singh is accordingly held guilty and convicted under section 304 PartI IPC.
Announced in open court
on 22.5.2010 ( S.P.GARG )
DISTRICT JUDGEIV,
NEW DELHI
State Vs Sanjeev Kumar Singh Page 1/39
37
IN THE COURT OF SHRI S.P.GARG,
DISTRICT JUDGE IV/ASJ,NEW DELHI
S.C. No. 07/10/07
State vs. Sanjeev Kumar Singh
S/o Sh Raj Bahadur
R/o H213, Jaitpur Extn.
Badarpur, New Delhi
(presently lodged in J.C)
FIR No. 353/07
P.S. Okhla Indl. Area
U/s 304 PartI IPC
ORDER ON SENTENCE:
1 I have heard the convict Sanjeev Kumar Singh on the point
of sentence.
2 Convict has prayed to take lenient view as he is in J.C
from the very inception. He is handicapped. He is a poor
person. He is the only earning member of his family.
3 I have considered the prayer of the convict and have gone
through the file.
4 On perusal of the file, it reveals that the offence committed
State Vs Sanjeev Kumar Singh Page 1/39
38
by the convict being handicapped is very serious and grave
whereby he caused death of an innocent young person. The
deceased was a friend of the accused and in a fit of rage killed him with a knife which he used to have in his possession. Convict has failed to explain the purpose and necessity of keeping the deadly weapon in his possession.
5 Considering all these facts and circumstances of the case; the prayer of the convict, the fact that he is handicapped and is in JC from the very inception, convict Sanjeev Kumar Singh is sentenced to undergo RI for 10 years (Ten years) with fine of Rs. 20,000/ (Twenty Thousand) and in default of payment of fine to undergo SI for 6 months for the commission of offence u/s 304 PartI IPC.
6 The period already undergone by the convict in this case shall be counted and set off against the substantive sentence u/s 428 Cr.PC.
7 Copy of the judgment and other relevant documents be State Vs Sanjeev Kumar Singh Page 1/39 39 given free of cost to the convict. File be consigned to the record room.
Announced in open court on dated 24/5/2010 (S.P.GARG) DJIV/ND State Vs Sanjeev Kumar Singh Page 1/39