Delhi District Court
State vs . Krishan & Ors. on 28 April, 2009
State Vs. Krishan & Ors.
IN THE COURT OF SHRI SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - III (EAST)
KARKARDOOMA COURTS : DELHI
State Versus 1) Krishan @ Manoj
S/o Madan Lal
R/o 8/430, Trilokpuri, Delhi.
2) Dharmender
S/o Madan Lal
R/o 8/430, Trilokpuri, Delhi.
3) Vijay
S/o Kali Charan
R/o 7/277, Trilokpuri, Delhi.
4) Rakesh @ Kabari
S/o Ram Dhan
R/o 7/241, Trilokpuri, Delhi.
Sessions Case No. : 13/2008
FIR No. : 733/2007
U/s : 396/302/34 IPC
PS : Kalyan Puri
Date of Institution of Case : 12.02.2008
Date on which judgment Reserved : 28.04.2009
Date on which judgment delivered : 28.04.2009
J U D G M E N T :
1. The present case of the prosecution was registered on 31.10.2007. On receipt of DD No.32A and 33A, ASI Sri Gopal reached LBS Page 1 of 11 State Vs. Krishan & Ors.
hospital where he met deceased Naresh in injured condition. He collected his MLC and his blood stained clothes. The injured was referred to GTB hospital but he expired in midway. The formal FIR was registered on the statement of Prem Kumar who stated that on 31.10.2007 at about 9.30 PM he was present at his house when the deceased, his friend, came to his house and asked for water. When he returned back with water, he saw accused Krishan was saying to the deceased to take out whatever he was having in possession but the deceased replied that he had nothing. In the meanwhile accused Dharmender, brother of accused Krishan, alongwith his friends namely Deepak, Vijay and Jeetu came there and asked the others to catch hold the deceased as he was refusing to pay money. At that stage accused Rakesh @ Kabari also came there and asked the others to catch hold of the accused as he was not paying money and on his instigation, accused Krishan, Deepak and Vijay caught hold of the deceased and accused Rakesh and Jeetu started giving him fist blows. Accused Dharmender took out a knife and stabbed Naresh. On seeing this the complainant Prem Kumar raised a hue and cry, hearing which his father came out of his house and then both of them went inside to pick up dandas to save Naresh and came out calling. In the meanwhile, the Page 2 of 11 State Vs. Krishan & Ors.
crowd gathered and on seeing the crowd all the accused fled away. He further stated that he then took Naresh in a rickshaw to LBS hospital and in the midway one Prakash also accompanied them and got him admitted in LBS hospital.
2. During the course of investigation, accused Rakesh @ Kabari was arrested on 01.11.2007 and his clothes were seized which were having blood stains. His shirt was found having three broken buttons and a small hole in the left leg of the pant. On 03.11.2007 accused Krishan, Dharmender and Vijay were formally arrested when they surrendered before the Court. One knife used in the crime was recovered at the pointing out of accused Dharmender. On 20.11.2004 accused Deepak was produced by her mother but he was found to be juvenile and hence his matter was separated and referred to Juvenile Board. Accused Jeetu could not be arrested.
3. After the completion of investigation, charge sheet was filed against the four accused namely Krishan @ Manoj, Dharmender, Vijay and Rakesh @ Kabari for the offences punishable U/s.396/302/34 IPC. Page 3 of 11
4. After the case was committed to the court of sessions and on considering the material on record, charge was framed against all the four accused dated 31.7.2008 for the offences punishable U/s.396/302/34 IPC to which the accused pleaded not guilty and claimed trial.
5. The prosecution examined seven witnesses at the trial. PW1 Raj Singh was the father of the complainant and an alleged eyewitness. PW2 Prem Kumar was the complainant. They both turned hostile and did not support the prosecution case despite crossexamination by the Ld. Addl. PP for state. They did not assign any role to any of the accused and simply deposed that while they were present at their house they heard a noise and cry for help. On coming out of their house, after some distance near the boundary wall of the park they saw Naresh lying near the boundary wall and bleeding. They then took the deceased in a rickshaw to LBS hospital, from where he was referred to GTB hospital where he was declared dead. They failed to identify any of the accused as the assailants.
6. PW3 Sonu and PW4 Kamal Chauhan had simply identified the dead body of the deceased vide memo Ex. PW3/A. Page 4 of 11 State Vs. Krishan & Ors.
7. PW5 Deepak was also cited as alleged witness to whom it was told that someone had stabbed Naresh and that Naresh had also told him while being taken to the hospital that he had been stabbed by the accused persons. He too turned hostile and did not depose anything against the accused despite crossexamination by the Ld. Addl. PP for State. PW6 Prakash had simply accompanied the deceased while he was being taken to the hospital.
8. PW7 Inst. Mohan Singh was the IO of this case who deposed about the investigation conducted by him. He proved the site plan Ex. PW7/A. He deposed that he lifted the blood sample, blood control earth from the spot, the slippers of the deceased etc. and took the sealed parcel as well as the seizure memo of the clothes of the deceased given to him by ASI Sri Gopal. He also proved the dead body identification statement of Sonu and Deepak vide Ex. PW7/C and PW5/A. He next deposed about the arrest of the accused persons and proved their arrest documents as Ex. PW7/D to PW7/M3. He further deposed that accused Dharmender got recovered the knife which he used in the incident from the backside of the wall of Bal Vikas Vidhyalaya, Block No.8, Trilokpuri. He identified the Page 5 of 11 State Vs. Krishan & Ors.
case property in court.
9. In the instant case, the most material witnesses including the complainant and the eyewitness of the incident, all turned hostile and did not allege anything against any of the accused. The other cited witnesses were all formal in nature and even their uncorroborated testimony would not have secured the conviction of the accused. Hence, despite protest by the Ld. Addl. PP, recording of further PE was closed.
10. Statement of accused were recorded U/s.313 Cr.P.C. They did not lead any evidence in defence.
11. I have heard Sh. A.K. Srivastav Ld. Addl. PP for the State, Sh. Malkhan Singh Advocate for accused Dharmender and Krishan and Sh. Naveen Singhal Advocate for accused Vijay and Rakesh.
12. As is clear from the aforesaid, no witness examined by the prosecution deposed anything against the accused and failed to identify them as the assailants who either gave beatings to the deceased or Page 6 of 11 State Vs. Krishan & Ors.
stabbed him as a result of which he died. Ld. Addl. PP argued that at least there are two incriminating circumstances on record, one the recovery of knife at the behest of accused Dharmender and seizure of blood stained clothes from accused Rakesh @ Kabari having the blood of the deceased.
13. The recovery of the knife as the weapon of offence alone cannot be an incriminating evidence against accused Dharmender when the eyewitness failed to allege anything against him, even if the said recovery is believed. The Division Bench of the Hon'ble High Court of Delhi in Jasbir Singh Vs. State (Govt. of NCT of Delhi) 2007 (4) JCC 3189 at Page 3195 Para13, held that recovery of weapon does not mean commission of murder. Apart from that, the recovery of the weapon as alleged is highly doubtful in view of the deposition of PW7.
14. In the crossexamination, PW7 admitted that the knife was recovered from an open place. He deposed that it was recovered from inside the bushes but when confronted with recovery memo Ex. PW2/D, he admitted that he had not mentioned this fact there. He also admitted that the knife was recovered after 45 days of the incident and that too Page 7 of 11 State Vs. Krishan & Ors.
from an open place. Such a recovery from open place was disbelieved in State Vs. Yenkappa 2003 Cr. L.J. 3558.
15. Furthermore, PW7 also admitted in the crossexamination that he had not prepared the sketch of the knife at all. He had given only length of the knife in Ex. PW2/D as 37.5 cms. A sketch of the knife was also prepared by the doctor who gave an opinion about the said knife as to whether the injuries on the person of the deceased were possible with that weapon or not. In that sketch, the total length of the knife has been mentioned as 37.3 cms. PW7 further failed to give the width of the blade in Ex. PW2/D which fact he admitted. Thus, the possibility of the knife having been planted later on to suit the injuries cannot be ruled out.
16. As far as the opinion of the doctor is concerned, though it was not proved, however, it is clear from record that it is a printed proforma and in the printed column the opinion has been left blank by the doctor. This cannot be treated as an opinion of the doctor. Ld. Addl. PP submitted that the doctor may be called to prove it. However, the Court cannot permit the investigation at the stage of trial and, hence, the Page 8 of 11 State Vs. Krishan & Ors.
request was turned down. Thus, firstly the recovery of the knife at the behest of the accused Dharmender is highly doubtful and secondly in view of the judgment in Jasbir Singh's case (Supra), it is not sufficient to hold the guilt of the accused.
17. It was further argued by the Ld. Addl. PP for the State that the blood group of the deceased was found on the said knife as well as the wearing clothes of accused Rakesh @ Kabari. Once the recovery of knife is doubtful then even if it had the blood stains of the blood of the deceased becomes immaterial.
18. The other incriminating evidence was against accused Rakesh @ Kabari that he was found wearing the clothes stained with the blood of the deceased. According to PW7, accused Rakesh @ Kabari was arrested on 01.11.2007 and he was brought to the PS where the said clothes were taken off from his person. The incident is dated 31.10.2007. It is not believable that the accused would roam around in the same clothes having blood stains of the deceased for about a day. PW7 further deposed that the brother of the said accused was called at the PS with fresh clothes Page 9 of 11 State Vs. Krishan & Ors.
but he failed to remember his name. He further admitted that neither the brother of accused Rakesh was made witness to the seizure of the clothes nor his statement was recorded. It was also admitted by PW7 that the time of arrest was not mentioned in the arrest memo of accused Rakesh in Ex. PW2/B nor the signatures of the informant was taken in the column meant for giving information of arrest to the relative. Hence, the manner of arrest and the seizure of the clothes as aforesaid is also highly doubtful. The arguments of the defence that blood of deceased was planted on the knife and clothes of Rakesh cannot be ruled out.
19. It may also be mentioned that at the time of seizure of knife at the behest of accused Dharmender, the complainant was accompanying the IO. However, despite that, the seal after use was not given to him but to one Constable whose name the IO could not remember. He also admitted that he did not try to lift any finger prints from the said knife. This was so done for the reasons best known to him.
20. There had been no recovery of any incriminating articles from the other accused.
Page 10 of 11
21. In view of the foregoing discussion and considering the fact that the most material witnesses of the case have not supported the prosecution version and the recovery of knife as the weapon of offence at the behest of accused Dharmender is highly doubtful and similarly the seizure of clothes from accused Rakesh is also doubtful, I am of the opinion that the prosecution has failed to prove its case against any of the accused. Accordingly, accused Krishan @ Manoj, Dharmender, Vijay and Rakesh @ Kabari are acquitted of the offences punishable U/s.396/302/34 IPC. Their Personal Bonds and Surety Bonds are discharged. File be consigned to RecordRoom.
Announced in the open Court Today: 28th April, 2009.
(SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) III KARKARDOOMA COURTS : DELHI Page 11 of 11