Delhi District Court
Sc No.77 /07 State vs . Lalit @ Pardeep Page 1 Of 48 on 26 October, 2010
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
JUDGE 01 (CENTRAL) DELHI
SC No. 77/07 FIR No.:
473/06
ID No.: 02401R0131822007 PS: D.B.G.
Road
U/Sec.: 302
IPC
State
Versus
Lalit @ Pardeep s/o Ved Parkash,
R/o H. No.134A, Lal Quarters, Punjab Bagh,
New Delhi.
Instituted on 01.02.2007.
Judgment reserved on: 13.10.2010.
Judgment pronounced on:26.10.2010.
J U D G M E N T
1. The accused Lalit @ Pardeep son of Ved Prakash resident of 134A, Lal Quarters, Panjabi Bagh, New Delhi (hereinafter, the accused) is facing this trial on the charge under Section 302 IPC, the gravamen being that on 13.11.2006 at about 11.30 PM, in front of shop no.179, SC No.77 /07 State Vs. Lalit @ Pardeep Page 1 of 48 Mishra Dhaba, Azmal Khan Road, within the jurisdiction of police station Desh Bandhu Gupta road (hereinafter, "the police station"), he committed the murder of one Kallu Singh @ Raju son of Bal Bahadur (hereinafter, "the deceased").
2. According to the prosecution case, at about 11.40 PM, on 13.11.2006, Santosh Kumar Pandey son of Ram Sufal Pandey (the first informant), who is a permanent resident of village Dubey Purwa, P.S. Katra Bazar, District Gonda, Utter Pardesh, and was employed as a waiter in shop no. 179, Mishra Dhaba, Azmal Khan Road, New Delhi, came to the police station and informed that a person was lying unconscious in front of Dhaba on account of stab injury inflicted with a knife. This information was recorded as DD no.32A (Ex. PW 6/A) and made over to SI Krishan Kumar (PW6) who along with Inspector Umed Singh (PW17), SHO of police station, Inspector Anil Kumar (PW22), Inspector (Investigation) with other police officials set out for the place of occurrence. It is stated in the prosecution case that on arrival at the aforementioned place, police officials found the deceased lying in pool of blood. They shifted him to Lady Harding Hospital in a vehicle and there, SC No.77 /07 State Vs. Lalit @ Pardeep Page 2 of 48 upon examination by the doctor on duty, he was declared brought dead at 00.30 hours on 14.11.2006 as per medico legal certificate (MLC) (Ex. PW 18/A).
3. It is stated that first informant Santosh Kumar Pandey (PW 1) then made a statement ( Ex. PW 1/A) before the SHO (PW17) to the effect that when he was closing down the Dhaba at about 11.30 PM on 13.11.2006, along with his colleagues, he saw two young persons noisily fighting with each other in front of the Dhaba, out of whom one person was wearing a red coloured shirt and was of medium build and physique with clear complexion which person was telling the other not to annoy him and while saying so stabbed the other person with a knife. According to the said statement (Ex. PW 1/A) of PW1, the person suffered the stab injury came and fell down in front of the Dhaba and started bleeding. PW1 stated that he had first tried to inform the police on phone at no.100 but since he could not contact, he had rushed to the police station to give the information on which the police had come and taken the injured person to the hospital where he had been declared brought dead. The SHO, PW17 made endorsement Ex. PW 17/A and got FIR (Ex. PW 11/B) SC No.77 /07 State Vs. Lalit @ Pardeep Page 3 of 48 registered thereupon. It may be mentioned even at this stage that as per FIR, the place of occurrence is at a distance of about 300 meters from the police station.
4. During the course of initial investigation, the crime team visited the spot and the scene of incident was photographed from different angles by Ct. Mahesh Kumar (PW7). The SHO prepared site plan (Ex. PW 17/C). Later, the draftsman SI Mahesh Kumar (PW12) would prepare the plan (Ex. PW 12/A) drawn to scale. The personal effects recovered from the dead body were initially taken over from the hospital authorities by SI Krishan Kumar (PW6) and later on handed over to SHO vide a seizure memo (Ex. PW 6/D).
5. The Blood stained Tshirt of the deceased (duly sealed in parcel with seal of hospital) with sample seal was taken over by the SHO from Medical Officer in the casualty against seizure memo (Ex. PW 6/C). During investigation, blood sample was lifted in a piece of cotton along with sample of blood mixed earth, earth control, one blood stained scarf and one stereo (mouth piece) from the scene of crime against seizure memo (Ex. PW 1/D). SC No.77 /07 State Vs. Lalit @ Pardeep Page 4 of 48
6. The SHO prepared the death report (Ex. PW 17/B) and got the dead body preserved initially for 72 hours on application Ex. PW 6/B which was got extended for another 72 hours through subsequent application.
7. The dead body was sent for postmortem examination which was carried out in the Department of Forensic Medicine at Lady Harding Medical College by Dr. Rajeev Sharma, Senior Resident. The postmortem report (Ex. PW 19/A) based on the examination of the dead body from 3.10 PM onwards on 20.11.2006 shows that the autopsy doctor had found a number of stab wounds as follows:
a) stab wound elliptical, margin clean cut, both angles acutely pointed, 3 x 2 x muscle deep, lower margin undermined, obliquely placed over outer aspect of right upper arm 7 c.m. below the tip of right acromine process, extra vassation of blood in margins and inside the wound.
b) Stab wound elliptical, margins clean cut, both angles acutely pointed, 2 x 1 x 2 c.m. present 2.5 cm below the umbilicus in the mid line, wound transversely placed and extravassation of blood in the margins and inside the wound, lower margin undermined.
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c) Stab wound elliptical margins clean cut both angles acutely pointed, lower margin undermined 3 x 1 cm x chest cavity deep transversely placed present on the left side of chest 5 cm below the roof of left auxiliary in the left posterior, extra vassation of blood seen in and around the margins and also inside the wound. Fluid blood kept oozing out of the margins of the main wound.
d) Stab wound elliptical margins clean cut both angles acutely pointed lower margin undermined obliquely placed 2.5 x 1 cm x muscle deep present over the outer aspect of left arm 2.5 cm above the left elbow joint, extravassation of blood seen in around the margins and also inside the main wound.
8. The internal examination showed a punctured wound clean cut margin, both angles acutely pointed, passing through and through 3 x 1 cm present in the fourth intercostals space in the posterior auxiliary line corresponding to external injury no. (c) Clotted blood was seen in the lower portion of trachea and bronchi, left lung showing a punctured wound passing through and through in its lower lobe 2.5 x 0.5 cm margins clean cut both angles acutely pointed, whole lower lobe found completely SC No.77 /07 State Vs. Lalit @ Pardeep Page 6 of 48 collapsed and reduced in size, extravassation of blood seen, about 2 ltr of fluid blood present in the left urine chemical, both lungs pale. Stab wound 2 x 0.5 x left ventricular cavity deep in the anteriorateral aspect of left ventricle, with 50 ml clotted blood seen in the left.
9. In the opinion of autopsy doctor, tract of the stab injuries, i.e. external injury no. (c) > was left intercostals fourth space > lower lobe of left lung > left ventricle of heart.
10. As per postmortem examination, the cause of death was shock and hemorrhage as a result of multiple stab injuries. External injury no. (c) with its corresponding internal injuries, antemortem and fresh in nature, were found to be sufficient to cause death in ordinary course of nature. The Autopsy doctor opined that death had occurred about 6 ½ days before the autopsy.
11. The identity of the deceased by this time had been established on the basis of information given by Vir Bahadur (PW2) and Padam Thapa ( PW3), both persons connected to the same village as that of the deceased in Nepal. These persons identified the dead body before postmortem examination.
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12. It appears that the deceased was involved in petty crimes, mostly thefts. It is alleged that accused also has a criminal record and as a consequence of which he has remained in jail on several occasions. The prosecution case alleges that Padam Thapa (PW3), cousin of the deceased informed the investigating officer (I.O.) that the deceased had been released on jail on 1.11.2006, two days after which he had met him and requested for a rented accommodation to be arranged for him and had further disclosed that he and the accused would live together in the said rented accommodation. According to information given by PW3 Padam Thapa, the deceased had told him that he had met the accused in jail and further that he (PW3) had arranged accommodation in Sidhipura as requested by the deceased.
13. The prosecution case is that on the basis of information given by PW3 Padam Thapa and on some secret information, search was launched for the accused. He was eventually arrested on 25.11.2006 at 9 PM from in front of Kothi No. 64, Arihant Nagar, Punjabi Bagh, Delhi vide arrest memo (Ex. PW 6/E) after personal search vide memo ( Ex. PW 6/F).
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14. The prosecution claims that after the arrest, the accused during interrogation made a disclosure statement (Ex. PW 6/G) and thus pointed out the place of occurrence vide memo (Ex. PW 6/I). It is alleged that pursuant to disclosure and at the instance of accused, a knife was recovered from an open space in the grass near tree which knife was allegedly described by accused , as the weapon of offence used in the crime. The knife, on recovery, was found to be not having any chance print. The place of recovery of knife was subjected to photography through Ct. Ramesh (PW10). Sketch (Ex. PW 6/J) of the knife was prepared and, thereafter, it was kept in a parcel and sealed with seal of SHO and then seized vide formal seizure memo (Ex. PW 6/K).
15. During investigation, IO applied for test identification parade (TIP) of the accused. These proceedings (Ex. PW 14/A) are stated to have been held under the supervision of Sh. Sanjeev Kumar Malhotra, Metropolitan Magistrate (PW14) on 20.12.2006, in the course of which PW1 Santosh Kumar Pandey, identified the accused as the assailant in the crime in question.
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16. It is the case of prosecution that knife recovered at the instance of the accused was shown to autopsy doctor who gave opinion (Ex. PW 19/B) to the effect that the four external injuries with corresponding internal injuries mentioned in postmortem report were possible with the said weapon.
17. The exhibits recovered from time to time were deposited in the malkhana against proper entries in register no.19 (collective Ex. PW 8/A). The exhibits are stated to have been sent, in due course, to Forensic Science Laboratory (FSL). FSL reports Ex. PX and PY clearly show that human blood of "O" group was found on the scarf, at the place of occurrence, Tshirt and underwear of the deceased, taken over from hospital authorities in casualty by Medical Officer and also blood stained gauze, preserved during autopsy The knife (described as dagger in FSL report) and the shirt of the accused were found have bloodstains of human origin, though the group thereof could not be confirmed. Similarly, blood of human origin was confirmed in the sample of blood stained earth and sample of blood collected from the scene of crime. SC No.77 /07 State Vs. Lalit @ Pardeep Page 10 of 48
18. On the basis of investigation, chargesheet was laid in the court of Metropolitan Magistrate on 1.2.2007. Ld. Metropolitan magistrate took cognizance and, thereafter, having secured the presence of the accused, complied with the requirement of Section 207 Cr.P.C. The case was committed to the court of Sessions vide order dated 1.3.2007.
19.My Ld. Predecessor put the accused to trial on the charge framed on 13.9.2007 for the offence under Section 302 IPC.
20.The prosecution examined the following twenty witnesses:
(i) Sh. Santosh Kumar Pandey ( PW1),
(ii) Sh. Vir Bahadur (PW2),
(iii) Sh. Padam Thapa (PW3),
(iv) SI Yashpal Singh (PW4),
(v) Ct. Ram Kesh (PW5),
(vi) SI Krishan Kumar (PW6),
(vii) Ct. Mahesh Kumar (PW7),
(viii) HC Anoop Singh (PW8),
(ix) Inspector Sanjay Kumar (PW9),
(x) Ct. Ramesh (PW10),
(xi) HC Raj Kumar (PW11), SC No.77 /07 State Vs. Lalit @ Pardeep Page 11 of 48
(xii) SI Mahesh Kumar, (PW12),
(xiii) HC Samdev (PW13),
(xiv) Sanjeev Kumar Malhotra, (PW14),
(xv) Ct. Suresh Kumar (PW15), (xvi) Sh. Sri Ram (PW16), (xvii) Inspector Umesh Singh (PW17), (xviii) Dr. Anita Marak (PW18), (xix) Dr. Rajiv Sharma (PW19), and (xx) Inspector Anil Kumar (PW20)
21. After the prosecution evidence had been concluded, statement of accused was recorded under Section 313 Cr.P.C. in which he claimed to be innocent and falsely implicated. He claimed that he had already been shown to the witnesses prior to TIP. According to him, he had no role in the case in hand and has been involved by way of false implication on the basis of false documents. He claimed that he used to be involved illegally by the police of PS Karol Bagh, D.B.G. Road, he being BC (bad character) of Madhipur area. He stated that he had been released from jail on 9.11.2006 only. The accused declined to lead any evidence in defence.
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22. I have heard Sh. R.K. Tanwar, Ld. Addl. Public Prosecutor for the State and Ms. Sadhna Bhatia, Ld. Amicus curaie for the accused at length. I have been taken through the record by both sides during the course of arguments. I have given my considered thoughts to the relevant contentions urged before me.
23. There is overwhelming evidence available on record, as adduced by the prosecution, to show that Kallu Singh @ Raju son of Bal Bahadur died as a result of stab injuries inflicted some time around 11.30 PM on 13.11.2006 in the vicinity of shop no. 179, Mishra Dhaba on Ajmal Khan Road, within the jurisdiction of PS Desh Bandhu Gupta Road as alleged in the charge sheet. The evidence in this regard may be taken note of at the out set.
24. PW6 SI Krishan Kumar has proved copy of DD no.32A (Ex. PW 6/A) recorded at 11.40PM on 13.11.2006 on the information given by PW1 Santosh Kumar Pandey regarding a boy with stab wound lying in front of the aforementioned Dhaba in unconscious state. The fact that this information was given in person by PW1, has been further confirmed by PW13 HC Samdev, who was working as duty officer at the relevant time SC No.77 /07 State Vs. Lalit @ Pardeep Page 13 of 48 and had recorded this DD. Noticeably, there is no contest against evidence to such effect.
25. The evidence of PW6 SI Krishan Kumar, PW17 Inspector Umed Singh and PW20 Inspector Anil Kumar further shows that when they reached the spot, they found the injured person with stab wound lying in a pool of blood. The Injured person was removed to the hospital and in the mean time, crime team which included PW4 SI Yashpal Singh and photographer PW7 Ct. Mahesh Kumar reached the scene of crime. While PW4 has proved his report Ex. PW 4/A, PW7 proved the photographs Ex. PW 7/A1 to A15 which he had developed with the help of negatives Ex. PW 7/B1 to B15. These photographs include eight of the scene of crime and seven of the dead body lying on gurney (trolley), apparently in the hospital where injured person had been shifted by the police immediately after arrival at the scene. The eight photographs of the scene depict not only the pool of blood but also the personal effects of the injured individual, presumably dropped some time during the incident. The dead body in the seven photographs taken in the hospital SC No.77 /07 State Vs. Lalit @ Pardeep Page 14 of 48 are only meant to show and confirm the identity of the victim.
26. The personal effects of the victim were seized by the SHO vide memo Ex. PW 6/D on the same being handed over to him by PW6 SI Krishan Kumar. It appears that these articles were not sealed at the time of seizure for the sake of identification of the deceased which was not clear at that time.
27. The MLC Ex. PW 18/A has been proved by PW18 Dr. Anita Marak, in absence of the doctor who had prepared the document in the casualty of Lady Harding Medical College at 00.30 hours on 14.11.2006. There is nothing improper in such proof by another doctor. [Prithi Chand Vs. State 1989 Crl. L.J. 841(SC) and Abdul Hamid Vs. State 92(2001) Delhi Law Times 876]. In the MLC four cutting incised wounds were mentioned which had been noticed on local examination and which would in due course, be confirmed in the autopsy report as would be seen a little later. In the MLC, the victim was shown male aged 25 years with name and parentage not known.
28. The dead body was thus got preserved for about 72 hours in the mortuary of the same hospital on the request of PW SC No.77 /07 State Vs. Lalit @ Pardeep Page 15 of 48 6 vide Ex. PW 6/B dated 14.11.2006. By the time, the death report came to be prepared on 14.11.2006 vide Ex. PW 17/B, the identity of the victim had been established with the help of PW2 Vir Bahadur and PW2 Padam Thapa. These witnesses would confirm this fact through their statements Ex. PW 2/A and Ex. PW 3/A before the postmortem examination in the mortuary of the hospital.
29. Thus, when the postmortem examination was conducted by Dr. Rajeev Sharma at 3.10 PM on 20.11.2006, on the request of IO, there was no dispute about the identity of the deceased. After the postmortem examination, the dead body would be taken over for the last rites by PW2 Vir Bahadur vide Ex. PW 2/B.
30. The autopsy report has been proved by PW19 Dr. Rajiv Sharma, in absence of autopsy Dr. Rajeev Sharma. This report Ex. PW 19/A proves that the deceased had suffered four stab injuries, the details of which have been set out in the earlier part of this judgment. The said injuries correspond to injuries noticed in the MLC on the very first date.
31. Going by the evidence in above nature in entirety, the correctness of which is not disputed in any manner by the SC No.77 /07 State Vs. Lalit @ Pardeep Page 16 of 48 defence, there is no hesitation in concluding that death of Kallu Singh @ Raju son of Bal Bahadur occurred some time between 11.30 PM on 13.11.2006 and 00.30 hours on 14.11.2006 (when he was brought to casualty of the hospital). The death had apparently occurred on account of four stab wounds inflicted in the chest and abdominal region; the injury no.3 with its corresponding internal injuries, in the opinion of the autopsy doctor, being sufficient in the ordinary course of nature to cause death. Having regard to the nature of these injuries and the parts of body where inflicted, there can be no two opinions about the fact that the assailant had given multiple knife blows resulting in these wounds with the intention of causing death.
32. In this view of the matter, the death of Kallu Singh @ Raju son of Bal Bahadur constitutes the offence of culpable homicide which, in the given circumstances amount to murder, within the meaning of provisions contained in Section 300 IPC.
33. The fact that death had occurred at the place described in the evidence of PW1 and PW6, PW17, and PW20 is brought out with sufficient clarity through the site plan Ex. SC No.77 /07 State Vs. Lalit @ Pardeep Page 17 of 48 PW 17/C prepared by SHO during the investigation at the spot on 14.11.2006 followed by a scaled site plan Ex. PW 12/A prepared by draftsman PW12 SI Mahesh Kumar. PW17 had also collected blood sample from the scene of crime in piece of cotton, blood mixed earth from the scene of crime in a small plastic bottle, earth control in small plastic bottle, blood stained scarf Ex. P1 and part of the stereo vide seizure memo Ex. PW 1/B. While, there is no further evidence as to the ownership of the stereo, the other exhibits initially deposited in the malkhana, as confirmed by evidence of PW8 MHC(M) on the strength of register no.19 (Ex. PW 8/A), were sent to FSL. The reports Ex. PX and PY show that blood found on the spot was of "O" group of human origin, as depicted, particularly also on the scarf.
34. At the time of autopsy, the doctor who conducted post mortem examination is also stated to have preserved the sample of the blood of the deceased. But the prosecution has not led any formal evidence about the seizure of the said blood sample preserved at the time of autopsy. The blood stained Tshirt of the deceased had also been preserved by the doctor in casualty at the time of SC No.77 /07 State Vs. Lalit @ Pardeep Page 18 of 48 preparation of MLC handed over to SHO vide memo Ex. PW 6/C. The Tshirt of the deceased has been proved as Ex. PX1. The evidence of MHC(M) PW8 again with reference to Ex. PW 8/A extract of register no.19, shows that it was deposited along with other exhibits sent to FSL. This Tshirt also gave clear result about the blood found thereon being of "O" group of human origin.
35. In above view, in absence of evidence to the contrary or any other theory being set up, it is safe to conclude that after having been inflicted fatal injuries with a sharp cutting instrument, the deceased had fallen unconscious in front of shop no.179, Mishra Dhaba, Ajmal Khan Road, New Delhi as stated by PW1, in the first intimation of this matter Ex. PW 6/A and in the statement Ex. PW 1/A which formed the basis of FIR Ex. PW 1/B.
36. It is proved beyond pale of all doubts through the evidence of PW1 Santosh Kumar Pandey, PW6 SI Krishan Kumar, PW17 Inspector Umed Singh, and PW20 Inspector Anil Kumar that on information being received vide DD no.32A (Ex. PW 6/A), when the aforementioned police officials accompanied by PW1 went to the spot, they found the injured person and later after the injured had been taken SC No.77 /07 State Vs. Lalit @ Pardeep Page 19 of 48 to hospital and declared brought dead, they returned to the scene for investigation of the crime at which stage, PW1 made statement Ex. PW 1/A indicating he having witnessed the incident. This statement Ex. PW 1/A was forwarded by PW17 with his endorsement Ex. PW 17/A to the police station requesting for registration of the case under Section 302 IPC. On this rukka, FIR Ex. PW 11/B was recorded by duty officer PW11 who has proved the said document on the basis of original record. After the registration of the FIR, copies thereof were dispatched by PW11 through PW5 Ct. Ram Kesh as special messenger to the Metropolitan Magistrate and senior supervisory police officers, which fact has been proved by PW5.
37. The crucial question against above back drop is as to who the was author of and thus responsible for the fatal injuries as a result of which the deceased had succumbed to death. It is clear from Ex. PW 1/A, the first statement of PW1 Santosh Kumar Pandey that he did not know either the deceased or assailant. In the said statement forming the basis of the FIR, he had only stated that he had seen two persons noisily fighting with each other in front of SC No.77 /07 State Vs. Lalit @ Pardeep Page 20 of 48 Dhaba where he was serving as a waiter. It was around 11.30 PM on 13.11.2006 and at a time when he, along with other coworkers, was in the process of closing down the establishment for the night. According to him, the assailant had shouted at the victim telling him " TU MERA DIMAG MAT KHARAB KAR" and while saying so had inflicted knife injuries with force, as a result of which the person assaulted had fallen down and started bleeding. Apparently, the victim he is referring in this FIR is none other than the deceased, (later identified as Kallu Singh). PW1 in the said original statement described the assailant as a young person wearing red shirt and being of medium height and built with clear complexion.
38. The prosecution case is that PW3 had provided the lead, on which basis, the IO started searching out for the accused. PW17 has deposed that PW3 had told him that he had arranged for a rented accommodation for the deceased in which accommodation, one Lalit, originally resident of Punjabi Bagh with criminal record had also joined (the deceased). This is confirmed by PW3 who deposed that the deceased, a habitual thief, had been released from jail on 1.11.2006, where after he had met SC No.77 /07 State Vs. Lalit @ Pardeep Page 21 of 48 him and requested for a rented accommodation being arranged with which request he had complied. He confirmed that the deceased had told him that a person named Lalit whom he had met in Jail would be living with him in the said rented accommodation. Credence to this theory is given by the accused himself, in the statement under Section 313 Cr.P.C., wherein he stated he had been released from Jail on 9.11.2006 only which would be a few days before this incident took place. This probabilises the fact that the accused and the deceased had developed acquaintance with each other on account of both having together been jail inmates, only a few days before the occurrence.
39. The evidence of prosecution, particularly the statement of PW17 and PW6 shows that the accused was arrested on 25.11.2006 at about 9 PM from in front of Khoti No. 64, Arihant Nagar, Punjabi Bagh. This is shown by arrest memo Ex. PW 6/E and personal search memo Ex. PW 6/F to which there is not much contest.
40. These witnesses further deposed that the interrogation of the accused resulted in disclosure being made and recorded on 25.11.2006 vide Ex. PW 6/G and the accused SC No.77 /07 State Vs. Lalit @ Pardeep Page 22 of 48 having pointed out the place of occurrence, in which regard memo Ex. PW 6/I was prepared on 26.11.2006. The evidence about pointing out about the place of incident is inadmissible in as much as this fact was already known to the police and, thus, can not be treated as a fact discovered pursuant to disclosure of the accused, it representing statement to police by a suspect, in police custody, and, therefore, inadmissible, it being hit by the provisions of Evidence Act.
41. PW6 and PW17 are the witnesses relating to the arrest, interrogation and investigation pursuant to the disclosure attributed to the accused. According to PW6, the information was that the accused visited his mother who does the work of ironing the clothes on road side in front of Kothi No.64, in Arhihant Nagar, Punjabi Bagh. He deposed that the accused came there and was apprehended and (on interrogation) made disclosure statement and there itself produced a red colour shirt stating that this was the shirt, he was wearing on the day of incident. The red colour shirt was kept in a parcel and sealed with seal of US and seized vide memo Ex. PW 6/H. The evidence would show that the above sealed parcel SC No.77 /07 State Vs. Lalit @ Pardeep Page 23 of 48 was deposited in the malkhana as confirmed by PW8 on the basis of extract of entries Ex. PW 8/A of the malkhana register. This sealed parcel was also sent in due course to FSL, reports whereof Ex. PX and PY show that the shirt was found having blood stains of human origin, though they would not give any reaction so as to confirm the group of the blood. Sealed parcel returned by FSL was opened during the statement of PW6 and the shirt was proved as Ex. P2. PW17 has also made a similar statement about the disclosure and about the shirt Ex. P2 and its recovery.
42. The prosecution also relied upon the evidence of PW16 Sri Ram, a tailor at shop no. K1/78, Prem Nagar, who spoke about the accused having got stitched from him the sleeves of the shirt of red colour. Initially, he would not support the prosecution case about the accused having ever visited the shop after the said stitching work had been done. He was crossexamined by the Ld. Addl. PP, when he conceded that the accused had come to his shop 1015 days after stitching of the shirt. He also identified at that stage, the shirt Ex. P2 as the one on which he had worked. He would not remember the date of visit of the SC No.77 /07 State Vs. Lalit @ Pardeep Page 24 of 48 accused with the police to his shop (stated in the prosecution case as 26.11.2006).
43. The shirt Ex. P2, red colour, has been cited as a very important piece of evidence by the police, seeking to connect it with the red shirt in which PW1 had seen the assailant at the time of incident. I do not think this material exhibit deserves to be given any credence as a highly incriminating piece of evidence.
44. The shirt Ex. P2 does not have any distinct identity mark so as to safely connect it a shirt on which PW16 may have done some work. PW16 is a tailor working in Prem Nagar who would be coming across a large number of customers on daily basis. It is not the case of the prosecution that accused was a regular patron to his shop. It is clear from the evidence of PW16 that he was not aware of the name, identity or particulars of the accused, even if his reluctant version about accused having been brought by police to his shop on 26.11.2006, were to be believed.
45. PW1, eye witness has not been questioned about the identity of the shirt as the one belonging to the assailant. Given the time of the night when the incident took place, SC No.77 /07 State Vs. Lalit @ Pardeep Page 25 of 48 he would not have been in a position to even otherwise take note of the shirt worn by the assailant so closely as to be in a position to identify it later.
46. Undoubtedly, the FSL report talks about the shirt bearing some blood stains of human origin. But the group of the blood thereon has not been found out. The Blood stains even if found on the shirt, would have putrefied over the period of time, in as much as the murder having been committed around mid night of 1314.11.2006, the shirt was seized 12 days thereafter on 25.11.2006.
47. Further, it is inconceivable that the assailant would continue to be in the same shirt in which he had committed the crime, 12 days after the incident, particularly when the shirt had become stained in blood. Most important in this regard is the fact that in the seizure memo Ex. PW 6/H, the fact of the shirt having blood stains is not mentioned. This would mean that at the time of seizure, neither PW6 nor PW17 had noticed any blood stains on this wearing apparel. Thus, the seizure of the shirt Ex. P 2, to my mind, is not a good piece of evidence incriminating the accused.
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48. PW6 and PW17 have deposed about recovery of knife Ex. P3 at the instance of the accused and pursuant to his disclosure. PW6 testified that in the disclosure, the accused had offered to get the weapon of offence recovered and led the I.O. with him as a witness to the bushes in the open ground inside the campus of Tibia College, where he is stated to have thrown the same after the occurrence. PW6 and PW17 speak about having gone to the said place where the said knife was got recovered. According to prosecution case, PW10 Ct. Ramesh was called when he took photographs Ex. PW 10/A1 to A6 of the scene (from where this recovery was made) with the help of negatives Ex. B1 to B6. There is nothing special about these photographs except that they depict the knife Ex. P3 (of which Ex. PW 6/J is the sketch) lying in the grass. The exact place where these photographs were taken is not shown nor can be made out there from in any other manner.
49. PW17 during his further statement recorded on 19.08.2010 proved site plan Ex. PW17/F which has been prepared by him respecting the place of recovery of the knife at the pointing out of the accused. The place SC No.77 /07 State Vs. Lalit @ Pardeep Page 27 of 48 depicted in this site plan is within the compound of Tibia College. During the crossexamination, it was suggested to PW17 that the said place is a park frequented by patients, doctors or students of Tibia college. The witness would deny this suggestion as incorrect. Since the place in question is located in the open grounds, one may proceed to examine the case on the assumption that it would be frequented by the members of the general public or at least by those connected with the medical college in question located there. But then, this by itself does not mean that the evidence respecting the recovery of the knife is to be doubted.
50. While it is correct that no independent witness of the public have been joined, there is no reason why the word of PW17 supported by the evidence of PW6 should be disbelieved because the Knife had been found lying in the grass near a tree within the said open ground. The fact that it was the accused who led to its discovery shows that he had a special knowledge about it. The circumstances in which it has been found and seized by itself lend assurance to the case of the prosecution in such regard. SC No.77 /07 State Vs. Lalit @ Pardeep Page 28 of 48
51. In above context, one needs to remind oneself about the settled law that the courts have to judge the evidence on the test of basic human probabilities. The evidence of police officials cannot be branded as highly interested. Such presumption runs counter to the principle that public servants must be presumed to act honestly, conscientiously and that their evidence has to be assessed on its intrinsic worth. (AIR 1978 SC 1971). It may be added here that recoveries in similar circumstances where the recovery Inspector had spoken about nonavailability of independent witnesses or even where the independent witnesses who were joined would not support, have been accepted as good evidence in a catena of authoritative pronouncements, provided the evidence of such police officer is otherwise found worthy of reliance. [Ajaib Singh Versus State 1997 IX Apex Decision (SC) 362; Modan Singh Versus State AIR 1978 SC 1511; Omvati Versus State 1990 Crl.L.J. 304 (Delhi); Sunil Kumar Versus State 1990 Crl.L.J. 414 (Delhi); Akmal Ahmed Versus State Judgement Today 1999 (2) SC 388 and Mohd. SC No.77 /07 State Vs. Lalit @ Pardeep Page 29 of 48 Aslam Versus State Judgement Today 2000 (8) SC 104 to mention a few.]
52. In State Versus Sunil 88 (2000) DLT 630 (SC), it was observed that document prepared by IO contemporaneous with the recovery need not necessarily be attested by independent witnesses and that mere absence of independent witnesses when the investigating officer recorded the statement of the accused leading to recovery of incriminating material pursuant to such statement was not a sufficient ground to discard the evidence under Section 27 of Evidence Act. Hon'ble Court observed thus:
"it is archaic notion that actions of police officers should be approached with initial distrust - Courts cannot proceed with presumption that police records are untrustworthy - as a proposition of law presumption should be the other way round."
53. It is true that generally, the police officers are expected to take precaution by joining independent witnesses of the locality. Seen against such general practice, it does appear odd as to why PW17 had not joined independent public witnesses. But then, only on this default the seizure does not become illegal. Further, even if it is argued that SC No.77 /07 State Vs. Lalit @ Pardeep Page 30 of 48 the search and seizure were illegal, the observations of Hon'ble Supreme Court in Dr. Pratap Singh Versus Director of Enforcement (1985) 3 SCC 72 provide the answer, viz., "illegality of the search does not vitiate the evidence collected during such illegal search."
54. Both PW6 and PW17 deposed that after the sketch had been prepared and the measurements taken, the knife Ex.P3 was put in parcel, sealed with seal of US and then seized vide Ex. PW 6/K. This sealed parcel, as shown by evidence of PW8 on the strength of Ex. PW 8/A was also deposited in the malkhana and later sent to FSL. The FSL reports Ex. PX and PY show that the knife (described in the report as dagger) had some rusty brown stains, which were found to be stains of blood of human origin, though the group could not be confirmed. Apparently, the knife having remained unattended and unprotected in the ground open to elements, the blood stains would have under gone chemical changes so as to putrefy and not in fit state for the blood group thereof to be confirmed by the FSL.
55. The knife Ex. P3 was later sent to autopsy doctor, who saw and examined it in the light of the autopsy report and SC No.77 /07 State Vs. Lalit @ Pardeep Page 31 of 48 gave his opinion Ex. PW 19/B. This opinion has been proved by PW19. It essentially states that external injuries no.1 to 4 with their corresponding internal injuries as mentioned in postmortem report are possible with this weapon Ex.P3.
56. The autopsy doctor himself has not stepped into the witness box. The doctor who proved this report conceded that he had no personal knowledge of the post mortem examination which was not done in his presence and, therefore, his evidence is based only on the record. In my considered opinion the absence of autopsy doctor from the witness box should not adversely affect the prosecution case in that PW19 has affirmed the opinion Ex. PW 19/B, proving it to be a document authored by the very doctor who had done the autopsy. The opinion only lends assurance to the possibility of knife Ex. P3 having been used in the fatal assault. The fact that the knife was found with bloodstains at the time of recovery and the fact that it was discovered on the pointing out and at the instance of the accused from the place within his special knowledge leads naturally to the conclusion that the opinion of the autopsy doctor is well founded. SC No.77 /07 State Vs. Lalit @ Pardeep Page 32 of 48
57. It is now the appropriate stage to look at the evidence of PW1 and examine the same particularly on the crucial question of his ability to identify the accused as the assailant. His credibility as an eye witness to the crime at the hands of the accused is at stake, in as much as, admittedly, he did not know either the victim or the accused prior to the incident, he being present at the scene as a chance witness.
58. PW1 has deposed that on 13.11.2006, he was working in the Mishra Dhaba in shop no.179, Ajmal Khan Road, New Delhi and at about 11.30 PM, when he was closing the Dhaba, he had seen the accused and another person fighting with each other. He stated that the accused had given some blows with knife to other person (deceased) and there after had run away. He testified that he had called on phone no.100 but when no one came, he has to rush to PS Desh Bandhu Gupta Road from where the police came for action referred to earlier.
59. The fact that PW1 had gone to police station to give the intimation about the incident forms part of DD no. 32, copy of which is Ex. PW 6/A. Noticeably, in the said DD entry, PW1 is shown to have reported the fact that a person was SC No.77 /07 State Vs. Lalit @ Pardeep Page 33 of 48 lying unconscious in front of Dhabha with stab wounds. His version as an eye witness came in the statement Ex. PW 1/A on which basis rukka Ex. PW 17/A was dispatched at 02.00 hours on 14.11.2006 which would be about 2½ hours after the incident. In the mean time, the IO with other police officials had come to the spot, taken the victim to hospital where he was declared brought dead, having collected MLC and then returned to the spot for further proceedings including the recording of statement of PW
1.
60. It has been argued on behalf of the accused that PW1 was planted as a witness in this "blind case of murder"
where police did not have any clue whatsoever as to who had committed the crime. It is submitted by the defence counsel that if PW1 had actually scene the incident with his own eyes, he would have said so, in so many words, even in the DD entry Ex. PW 6/A.
61. I do not think this circumstance by itself can lead to such inference. Looking at the scenario from the prospective of PW1, he was a small time employee in a private establishment. At the fag end of his working hours late in the night, he had seen the incident and the victim lying in SC No.77 /07 State Vs. Lalit @ Pardeep Page 34 of 48 front of his Dhaba. As a vigilant citizen, he took it as his duty to inform the police. He made efforts to report the fact on telephone but having failed to do so, he rushed to the police station. When he reached the police station, he was met by PW13 a Head Constable. At that stage, the focus was more on the status of the victim since, according to PW1, he was unconscious with stab wounds. Naturally that was not the proper time to interrogate and record the detailed statement of PW1 about the entire episode or about the entire spectrum of facts within his knowledge. Thus, the police machinery stood activated and took the initial steps by rushing to the spot with cryptic information logged as DD no.32A.
62. It was after the victim had been taken to the hospital that the police officials entrusted with the matter felt the necessity to look out for the eye witness account. This is where PW1 would come in.
63. During crossexamination of PW1, his claim of he being a worker in the Dhaba in front of which the incident had taken place was not questioned. PW1 is not to be disbelieved when he states that he was working in the said Dhaba for the last 7 years, particularly in absence of any SC No.77 /07 State Vs. Lalit @ Pardeep Page 35 of 48 dispute on that score being raised. According to PW1, in the crossexamination, he with other workers had gone to the roof after closing the Dhaba. He states that he had come down stairs after hearing the noise of rickshaw pullers. He conceded that several rickshaw pullers used to park their rickshaws at that place. This would mean that there were other witnesses to the incident but then no other witness having been located, the case rests solely on the testimony of PW1.
64. In the deposition of PW1, during the examination in chief, he has made a very clear statement about he having identified the accused as the assailant who had knifed the deceased several times in front of his eyes. In the cross examination, a stray sentence appears wherein he seems to be conceding as correct that "no incident took place in my presence". Ld. Defence counsel argued that in the face of this admission of PW1, the entire case deserves to be thrown away. I am afraid, the manner in and the place where this sentence appears in the deposition sheet recorded by my learned predecessor on 25.9.2008 on the basis of oral testimony of PW1, shows that it is clearly a case of clerical error. It is inconceivable that if the defence SC No.77 /07 State Vs. Lalit @ Pardeep Page 36 of 48 counsel had scecured such an important admission from the witness, wherein he had would disown the version of incident having taken place in his presence, she would have continued further crossexamination of the witness as the same would be unnecessary. Except for this stray sentence appearing at the stage of the crossexamination of PW1, entire evidence including in the cross examination is adverse to the defence plea. In the cross examination, even subsequent to this particular sentence, the witness denied the suggestion that he had not seen the accused stabbing the deceased. In above light, the sentence in question is apparently a product of typographical error of which no undue advantage can be allowed to be taken, particularly in the face of other evidence on record.
65. After the accused had been arrested and the investigation respecting the seizure of the knife at his instance had been completed under the directions of PW17, PW9 pursued the matter for TIP to be arranged. The application for this purpose was moved by PW17 on 26.11.2006. As per Ex. PW 17/H, the proceedings recorded on the said application by the concerned Metropolitan Magistrate shows that the SC No.77 /07 State Vs. Lalit @ Pardeep Page 37 of 48 TIP was fixed for 11.12.2006 at 10 AM for which I.O. was directed to produce the witness. These proceedings further confirm that the accused was directed to be produced by the Magistrate with muffled face. On the same day, vide separate application Ex. PW 17/K, the I.O. obtained judicial remand of the accused. Proceedings recorded on the said application confirm that the accused was produced in muffled face when remanded to judicial custody.
66. On 11.12.2006, PW17 had moved an application Ex. PW 17/J seeking another date to be fixed on the ground that the eye witness Satnosh Kumar Pandey (PW1) was down with fever and so unable to appear. The order recorded by the Magistrate on the said application shows the TIP was, thus, adjourned to 20.12.2006 for which Jail Superintendent was also directed to be informed.
67. The TIP was conducted against the above back drop on 22.12.2006 by PW14, who has proved the proceedings recorded by him vide Ex. PW 14/A.
68. The TIP proceedings presided over by PW14 in the court at Tihar Jail as recorded vide Ex. PW 14/A show that the Ld. Magistrate had taken all the necessary precautions for SC No.77 /07 State Vs. Lalit @ Pardeep Page 38 of 48 ensuring that the witness did not have any opportunity to see the accused before being called in and shown the line up which included accused person. The witness was produced before the Magistrate out side the jail. After entering the jail premises, the Magistrate had ensured that no unauthorized person was present in the room where he conducted the proceedings. On the accused voluntarily agreeing to join the TIP proceedings, he arranged for under trial prisoners, picked up by the accused of his own choice, to stand in a row in which the accused joined at a place of his own choice. The ten under trials who participated in the said proceedings were of similar age group and physique as the accused himself. The accused was given opportunity to change his wearing apparels and questioned if he had any specific identification mark on his face or any part of his body which was exposed. After taking all necessary precautions, the witness PW1 was called for by the Magistrate and at this stage PW1 positively identified accused thereby connecting him to the case at hand.
69. During crossexamination of PW14, there was no effort made to bring up any defence respecting positive SC No.77 /07 State Vs. Lalit @ Pardeep Page 39 of 48 identification of the accused in TIP by the eye witness PW
1. At the stage of crossexamination of PW17, however, it was suggested that the accused was shown to the witness in police station before TIP had been conducted and further that his photograph had also been taken with the help of mobile phone instrument. PW17 denied both these suggestions as incorrect.
70. Apparently, these suggestions are based on theories that had been invented later as an after thought. The accused had been produced before the Magistrate with muffled faced when TIP was proposed to be arranged. He had been directed to be produced with muffled face at the proceedings in TIP. He had been sent to judicial custody in the mean time. He voluntarily participated in TIP proceedings not only by picking up jail inmates who were similar to him in the height and physique but also by choosing his own place in the lineup. Having undergone the said exercise of his own free will, his plea now that he was earlier shown to the witness or photographed is nothing but an effort to wriggle out of this highly incriminating circumstance. Had the accused been actually photographed or had he been shown to the eye witness in SC No.77 /07 State Vs. Lalit @ Pardeep Page 40 of 48 the police station after his arrest, he was bound to cry foul and would have refused to join TIP, in which stand he would have been fully justified. It may be added here that this case is not the first criminal case faced by the accused. He has had brush with criminal justice system in the past as admittedly he had remained in custody for some period even just before his involvement in the present case.
71. In above view, I find no reasons to doubt the testimony of PW1 in the court when he identified the accused as the person who he had seen giving the fatal injuries on the person of the deceased.
72. It has been argued that the incident having taken place at a public place and in the presence of many on lookers (rickshaw pullers and other workers of the Dhaba), the nonparticipation of such other witnesses should lead to adverse inference.
73. In case of State of U.P. Vs. Anil Singh AIR 1988 SC 1998, it was held that in some cases the entire prosecution cases is doubted for not examining all witnesses to the occurrence. The general indifferent attitude of the public in the investigation of crimes or the fact that the public are SC No.77 /07 State Vs. Lalit @ Pardeep Page 41 of 48 generally reluctant to come forward to depose before the courts can not be lost sight of. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. In the case of Appabhai Vs.State of Gujarat AIR 1988 SC 696, it was held that these days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are in sensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
74. It may be added here that our settled law requires quality evidence rather than quantity of evidence. PW1 has passed the muster of reliability. His word as eyewitness should suffice.
75. On careful perusal of the evidence on record, I do not find any reason why it should be disbelieved. Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities SC No.77 /07 State Vs. Lalit @ Pardeep Page 42 of 48 [Narotam Singh Vs. State 1978 Cr.L.J. 1612(SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of witnesses [Lallan Vs. State 1990 Cr,.L.J. 463]. It was ruled in Ramni Vs. State, [Judgment Today 1999(6) SC 247)] that all discrepancies are not capable of affecting the credibility of witnesses. Similarly, all inconsistent statements are not sufficient to impair the credit of a witness.
76. Observations of Hon'ble Supreme Court in 1985 Crl. L.J. 1173 can also be fruitfully referred to in this context. The evidence of an eye witness cannot be treated as one of the three legs of a tripod so as to conclude that it must collapse if one or the other leg collapses.
77. In the case of Sukhdev Yadav & ors. Vs. State of Bihar (2001) 89 (SCC) 86) it was held by Hon'ble Supreme Court that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) SC No.77 /07 State Vs. Lalit @ Pardeep Page 43 of 48 9 SCC 525, it was observed that there are bound to be some discrepancies between the narration of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments or variations should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. ( supra), it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the SC No.77 /07 State Vs. Lalit @ Pardeep Page 44 of 48 narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was observed that it is a common practice in trial courts to make out contradictions from the previous statement of a witness used for confronting him during cross examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment of the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
78. In above facts and circumstances, I have no hesitation in concluding that the prosecution has duly proved guilt of the accused in inflicting the stab injuries as a result of which Kallu Singh @ Raju died. It has already been concluded in earlier part of this judgment that the fatal wounds were inflicted by the author of the said injuries with the intention of causing death. Since accused has been proved to be the author of the said injuries, the intention to cause death SC No.77 /07 State Vs. Lalit @ Pardeep Page 45 of 48 has to be attributed to him. Thus, his guilt for offence of murder of Kallu Singh @ Raju has been brought home beyond the pale of all doubts.
79. In the result, the accused is held guilty and convicted for the offence under Section 302 IPC.
Pronounced in open court on th This 26 day of October, 2010 (R.K.Gauba) Addl. Sessions Judge 1 Central, Delhi.
SC No.77 /07 State Vs. Lalit @ Pardeep Page 46 of 48 IN THE COURT OF SHRI R.K. GUABA ADDITIONAL SESSIONS JUDGE01 (CENTRAL) DELHI Sessions Case No. 77/07 ID No.: 02401R0131822007 FIR No. : 473/06 PS: DBG Road U/S.: 302 IPC State Versus Lalit @ Pradeep S/o Sh. Ved Prakash R/o H.No. 134 A, Lal Quarter, Punjabi Bagh, Delhi.
ORDER ON SENTENCE 1 Vide judgment passed and pronounced on 26.10.2010, Lalit @ Pradeep who was held guilty and convicted for offence under section 302 IPC.
2 I have heard Sh. R.K. Tanwar, Ld. Addl. Public Prosecutor for the State and Ms. Sadhna Bhatia, Advocate for the convict on the question of sentence.
SC No.77 /07 State Vs. Lalit @ Pardeep Page 47 of 483 While Ld. Addl. Public Prosecutor submitted that the court may award appropriate punishment, the defence counsel has prayed for lenient view on the grounds that the convict does not have any past criminal records and is quite young in age. 4 I have given my considered thoughts to the contentions urged before me. The convict assaulted the deceased ruthlessly, stabbing him in the process. The reasons why he committed the said assault are matter of his special knowledge which he has not shared with the court.
5 Be that as it may, the case is not one which would fall in the category of rarest of rare.
6 I, therefore, sentence the convict to imprisonment for life with fine of Rs. 5,000/ (Five Thousand only) for the offence under section 302 IPC. In case of default in the payment of fine he shall further undergo RI for six months.
7 Copy of this judgment and order of sentence be supplied to the convict free of costs.
8 He be sent to jail under appropriate warrants. 9 File be consigned to record room.
Announced in open court on This 27th day of October, 2010 (R.K. GAUBA) ASJ01/ CENTRAL DELHI SC No.77 /07 State Vs. Lalit @ Pardeep Page 48 of 48