Delhi District Court
State vs . Rajesh @ Jai Bhagwan @ Lila on 21 December, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.76/01/08
FIR No.261/02
U/s 307/397 IPC
PS Najafgarh
State
Vs.
Rajesh @ Jai Bhagwan s/o Sh Kripa Ram
.......... Accused
Challan filed on :02.09.2002
Reserved for order on : 15.12.2012
Judgment delivered on :21.12.2012
JUDGMENT
Briefly stated the facts of the prosecution case are that on 8.5.2002 DD no.30A was recored in PS Najafgarh vide which HC Dharamvir two persons namely Jai Bhaggwan and Thakur Singh have been admitted in the hospital. On receipt of this DD SI JP Singh reached at RTRM Hospital where he found Thakur Singh admitted vide MLC no. 636 and Jai Bhagwan was found admitted vide MLC State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.1 of 19 no. 837. Thakur Singh was referred to DDU Hospital. He reached in DDU Hospital where the condition was Thakur Singh was reported to be serious. There was also injury on the hand of Jai Bhagwan. IO made endorsement on the said DD and got the case registered. On 14.5.2002 Thakur Singh was declared fit for statement and his statement was recorded. Accused was arrested and after completion of the investigation challan was filed u/s 307/397 IPC.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 4.2.03.
3. The charge against the accused Rajesh @ Jai Bhagwan was framed u/s 397/307 IPC on 3.6.04 to which the accused pleaded not guilty and claimed trial.
4. The prosecution to prove its case against the accused persons, in all has examined as many as 11 witnesses. However during examination of witnesses accused did not appear on 19.9.2007 and NBW were issued against him. Thereafter proceedings u/s 82/83 Cr.PC were initiated and accused was declared proclaimed State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.2 of 19 offender on 09.09.2009. Thereafter fresh kalandra was filed u/s 41.1(C) Cr.PC on 30.6.2012 and additional charge u/s 174 PartII of IPC was framed and thereafter PW12, PW13 and PW14 were examined.
5. PW1 HC Amarjit has deposed that he remained with IO and that on 4.6.02 accused was arrested vide memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW1/B. His disclosure statement was recorded which is Ex.PW1/C wherein accused has disclosed that he has thrown the razor at the roof of house and can get recover the same. Accused led them to a abandoned house and got recovered razor form the roof. The same was sealed with the seal of JPS and seized vide memo Ex.PW1/D. The case property was deposited in the malkhana. He identified the razor Ex.P1.
6. PW2 HC Banwari Lal has deposed that on 8.5.02 SI JP Singh deposited sealed pullanda and he made entry no. 1949 copy of which is Ex.PW2/A. He further stated that he made entries regarding deposit of case property which are Ex.PW2/B,C and that on 23.7.02 he sent the parcel to FSL vide RC no.78/21.
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7. PW3 HC Nahar Singh is the FIR recorder who recorded the FIR of the present Case. The copy of FIR is Ex.PW3/A.
8. PW4 Dr. AS Yadav has deposed that on 8.5.02 he examined injured Thakur Singh and prepared the MLC which is Ex.PW4/B and his report that the injury was grievous is Ex.PW4/A.
9. PW5 HC Raj Kumar has deposed is the duty officer who received information regarding admission of injured in the hospital and recored the same in DD no.30A copy of which is Ex.PW5/A.
10. PW6 Thakur Singh is the complainant in this case but he was declared hostile by the prosecution as he did not support the case of the prosecution.
11. PW7 Ct. Surinder has deposed that on 5.6.02 accused Jai Bhagwan led them to H.No. 438 Near Gyatri Bhawan Old Post Office, Najafgarh and got recovered one ushtra from grass lying at the roof. Ushtra was blood stained. He further deposed that the ushtra was sealed and seized in this case. He identified the same as Ex.P1.
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12. PW8 Ct. Dharampal has deposed that on 8.5.2002 he was called by IO to hospital where both the injured were declared unfit for statement. Accused Jai Bhagwan was also one of the injured. HC Dharambir Singh duty head constable at the hospital handed over the personal search of injured Thakur Singh to IO which were seized vide memo Ex.PW8/A. He again joined investigation on 8.7.02 and at the request of IO Doctor had taken blood samples of injured which was seized vide memo Ex.PW8/B. On 23.7.02 he took the exhibits to FSL, Malviya Nagar.
13. PW9 HC Dharamvir Singh has deposed that on 8.5.02 both injured Jai Bhagwan and Thakur Singh were brought to the hospital by Ambulance of Primary Health Center of Najafgarh and two pullandas were taken into possession by the IO vide memo Ex.PW9/A.
14. PW10 Dr. Prem Prakash Upadhyay has stated that on 8.5.02 two persons in injured condition were examined by him. Injured Thakur Singh was having injury on his stomach and mouth with sharp edge weapon and other injured Jai Bhagwan was having injury on the left hand with sharp edge weapon and the wounds were State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.5 of 19 bleeding. He took both the injured in ambulance of Primary Health Center Najafarh and got them admitted in RTR Hospital. He has further stated that injured Jai Bhagwan was telling other injured Thakukr that he did not disclose this incident to police and Jai Bhagwan was saying jo hoy gaya so ho gaya. He also told that if he (Thakur) disclose to police then he will disclosed that a quarrel took place on account of money between them. These words were disclosed on the way from PHC to RTR Hospital. IO recorded his statement.
15. PW11 SI JP Singh is the IO of this case and he has deposed that on receipt of DD no.30A Ex.PW5/A he alongwith Ct. Dharampal reached at Rao Tulla Ram Hospital where Thakur Das and Jai Bhagwan were found admitted. Duty constable handed over him two pullandas which were seized vide memo Ex.PW9/A. He further stated that the personal search articles of injured were also handed over to him which were blood stained and he seized the same vide memo Ex.PW8/A. Doctor declared the injured unfit for statement on application Ex.PW11/A. He prepared rukka Ex.PW11/B on DD and got the case registered. Injured Jai Bhagwan was discharged on the same day and he was directed to come to PS for State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.6 of 19 enquiry. On 14.5.2002 Thakur Singh was declared fit for statement and his statement was recorded. He further deposed that accused was arrested and his personal search was conduced. His disclosure statement Ex.PW1/C was also recorded. The accused got recovered ustra used in the commission of offence from a roof of one house no.
438. The said ushtra was seized vide memo Ex.PW1/D. He prepared the site plan Ex.PW11/I. On 8.7.2002 blood sample of the injured was sealed and seized vide memo Ex.PW8/B. He sent the exhibits to FSL vide RC no. 78/21. He collected the MLCS and obtained result of the same. He filed the FSL result on record which is Ex.PX. He identified the case property i.e. razor Ex.P1.
16. PW12 HC Rajender Singh has deposed that on 29.6.12 he alongwith HC Rakesh left the PS for arrest of P.O. Accused Rajesh and in Z Block, one secret informer met them and informed that accused is present in his house. They reached at house no. RZ223 Z Bock where one boy was found and who disclosed his name as Rajesh @ Jai Bhagawn @ Leela @ Raju, accused present in the court and and during interrogation he disclosed that he is involved in many cases and it was also revealed that he is PO in FIR no. 261/02. He was arrested vide memo Ex.PW12/A and his personal State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.7 of 19 search was conducted vide memo Ex.PW12/B. Information regarding his arrest was given to PS Najafgarh. Facts of arrest were brought to the notice of SHO and kalandra of arrest Ex.PW12/D was prepared.
17. PW13 HC Rakesh is also the witness regarding arrest of accused and he was with PW12 at the time of arrest of accused on the basis of secret information.
18. PW14 Dr. Rajendra Kumar has deposed that on 27.8.02 he examined the exhibits and after examination he prepared the detailed report which is Ex.PX.
19. After completion of evidence of the prosecution, statement of accused u/s 313 Cr.PC was recorded in which the accused has stated that he has been falsely implicated in this case. He did not opt to lead defence evidence. Therefore the case was fixed for final arguments.
20. I have heard the arguments from the Ld. Counsel for the accused as well as Ld. APP for the State and given my thoughtful consideration on the testimonies of the witnesses. State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.8 of 19
21. In the overall analysis of the testimonies of witnesses available on file, it is revealed that PW 6 Thakur Singh is the complainant and victim in this case. He is the star witness of the prosecution. In his statement recorded before the court he has stated that ON 8.5.2002 at about 9.30 10 p.m he was going to attend a marriage at CRPF camp Jharoda Kalan where he got down at the bus stand at about 9.30 p.m at Najafgarh near Delhi Gate. He was standing at the bus stand and was asking for the way to go to Jharoda Kalan from one boy. He told him that he will also go to Jharoda Kalan. He accompanied him when after moving at a short distance in a street where there was dark that boy took out a knife and given knife blow on the abdomen and on the forehead. He fell down after receiving the injury on the ground. At that time, he was having 600 to 700 rupees, wrist watch in his wrist, one purse and a diary and some papers. Blood was coming out from his injuries. He does not know which side boy escaped thereafter. He was thereafter removed to Family Health Centre, Najafgarh. That boy was aged about 2030 years. That boy was wearing the cap and built up of body was like accused present in the court. He does not remember the name of other hospital where he was removed and thereafter taken to DDU State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.9 of 19 Hospoital. He does not remember what kind of clothes that boy was wearing at that time. However, he was wearing pant and shirt. He does not know if he came to the hospital or not. The police met him later on and recorded his statement. He can identify his clothes if shown to him. He did not identify the baniyan(Tshirt type) blood stained, one red colour shirt as belonging to him. However, he identified one shirt smeared with blood as belonging to him and worn by him at the time of incident. The clothes are colly Ex.P2. He was declared hostile by by the prosecution and cross examined by the Ld. APP for the State wherein he has stated that he could not identify the face of that boy. He cannot say whether that boy was the accused present in the court or not. One boy came in the hospital lateron but he does not know if he was in red shirt and black pant. However, he was in injured condition. He does not know whether he disclosed his name as Jai Bhagwan to the doctor. He admitted that he does not remember his name because of lapse of two years since occurrence. The police got recovered his purse and money which was taken by him from the police. He does not have that money with him or the purse. He was not cross examined by the Ld. Defence counsel.
22. In view of the evidence on record it is revealed that State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.10 of 19 PW6 is the complainant and main star witness of the prosecution. He is the backbone of the prosecution case as entire case of the prosecution rests upon his statement being complainant and injured. It is well settled law that injured are the best witnesses to give true and correct account of the incident and there does not seem any plausible reason to disbelieve the injured. However, in this case on perusal of the statement of PW6 Thakur Singh, it is revealed that he has not assigned any role to accused Rajesh @ Jai Bhagwan. He never identified the accused that he is same boy who caused injuries on his person and used razor at the time of robbing him. Pw6 Thakur Singh was declared hostile by the prosecution and cross examined by the Ld. APP for the State but nothing incriminating against the accused could be extracted by the Ld. APP during cross examination.
23. PW6 Thakur Dass is the star witness of the prosecution case but he has not supported the version of the prosecution case. It is held by our own Hon'ble High Court in case Raj Kumar Vs. State 1997(2) CC Cases HC 291 that: 'Where the PW has been absolutely inconsistent and has been changing his stand from time to time, he State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.11 of 19 cannot be regarded as reliable and trustworthy witness of the occurrence' It is also held by Apex Court in the case of Suraj Mal Vs. Delhi Admn. 1997 Criminal Law Journal 108(SC) CC Cases that : 'When the prosecution witness gives two different statements in their testimonies either at one or two suggest, therefore the testimony become unreliable and unworthy of credit and in the absence of any circumstances no conviction could be made therein'.
24. In consideration of the above observations observed by the Hon'ble Apex court and Hon'ble High court and in consideration of the testimony of PW6 he is not reliable and trustworthy in respect of the prosecution version.
25. However, I have also considered the testimonies of other witnesses. PW10 Dr. Prem Prakash Upadhyaya is the witness from Primary Health Centre, Najafgarh where injured PW6 and present accused allegedly reached first for treatment but PW10 removed them to RTR Hospital. He has stated that on the way injured Jai State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.12 of 19 Bhagwan was telling other injured Thakur that he did not disclose this incident to police and Jai Bhagwan was saying jo ho gaya so ho gaya. He also told that if he (Thakur) disclose to police then he will disclose that quarrel took place on account of money between them. In cross examination he denied the suggestion put by the Ld. Defence counsel in this respect. Allegedly PW10 removed Jai Bhagwan(accused) and Thakur Singh (complainant) to RTR Hospital. No doubt that he would have listened their talks on the way or that he would also have interacted with them. But the version given by PW10 Dr. Prem Prakash is not supported by any other witness as the PW6 Thakur Dass has not assigned any role to accused and prosecution has failed to examine the driver of the ambulance in which both accused and injured were removed to hospital. In view of any other corroboration to the statement of PW10, it cannot be given weightage.
26. PW11 SI J.P.Singh is the IO of this case who reached in the hospital on receipt of DD no.30A. PW5 HC Raj Kumar who was posted in hospital got recorded this DD regarding admission of injured in the hospital. PW11 made endorsement on this DD and got recorded the present case FIR which was recorded by PW3 HC State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.13 of 19 Nahar Singh, Duty Officer. The copy of FIR is Ex.PW3/A. PW9 HC Dharmender had handed over the personal search articles of injured to IO which were sealed by him and taken into possession vide memo Ex.PW9/A. PW11 SI JP Singh & PW1 HC Amarjeet have stated that accused Jai Bhagwan was arrested vide memo Ex.PW1/A, his personal search was conducted vide memo Ex.PW1/B and his disclosure statement Ex.PW1/C was recorded. Both the PWS have given contradictory statements regarding arrest of accused as PW11 SI JP Singh has stated that the accused was arrested on the pointing out of secret informer from Palam Dabri Road near Dabri Bridge at about 9.30 p.m while PW1 has not stated that he was arrested on the pointing out of secret informer and PW1 has stated that the accused was arrested from near nala in front of PS Dabri as accused was sitting there on barber shop. There is no independent witness joined at the time of arrest of accused. The contradictory versions of both the PWS further create doubt regarding the arrest of accused in this case.
27. PW1 HC Amarjit, PW11 SI JP Singh and PW7 Ct. Surender have further stated that accused got recovered a razor from the roof of the house no. 438 near Gyatri Bhawan, near Old Post State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.14 of 19 Office, Delhi which was seized vide memo Ex.PW1/D. The house in question as admitted by the PWS was an abandoned house. It is in evidence that the razor was recovered from roof which is a open place and accessible to all. It has been stated in case law Satish Kumar Vs. State, 1995(34) DRJ (DB) in para 33 that : 'Now we are left only with the evidence with regard to the disclosure statement allegedly made by the appellant and the recovery of blood stained knife and blood stained shirt at the instance of the appellant. At the outset, we may mention that the group of the blood appearing on the said articles could not be deciphered by the experts. Only human blood was found on the said articles. So, strictly speaking, the said articles cannot be linked with the crime in question. Be as it may, both the SHO and SI Sher Singh and Shushil Kumar admitted that no efforts were made by the police to join any independent witnesses before recording the disclosure statement of Satish and before effecting the recoveries. It is not understood as to how the basic principle of investigation has been lost sight................. Merely having the brother of the deceased with them for this purpose does not remove the suspicion about the genuineness of disclosure statement and the recoveries allegedly effected on the basis of such disclosure statement. (Reliance can also be placed on Kedar Singh @ Kedari Vs. State, 1996 JCC 111, para 21.) In case titled Preetam Singh Vs. The State, 1998 (1) JCC (Delhi) 94 it is stated in head note that : State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.15 of 19 'Recoveries - Murder and theft case - Recoveries not made in presence of independent witnesses though available - Such recoveries cannot be considered by the court in evidence.'
28. In the present case also there is no independent witness associated by the investigating officer at the time of recovery of knife. The recovery of knife has also been effected from open place which is approachable to all. It is on record that injuries were caused on the person of complainant by this razor. But on perusal of FSL result no reaction for ABO Group was detected on the razor. Further the said razor has not been identified by PW6 injured Thakur Singh nor it was shown to him at any point of time. The recovery of knife, therefore seems to be doubtful.
29. PW4 Dr.A.S. Yadav had examined the injured and prepared the MLC Ex.PW4/B. He also opined the nature of injures as grievous. As per MLC the following injuries are mentioned :
1. Sharp incised lacerated wound approx 6 inches apigastic region.
2. Sharp incised wound on forehead approx 3"x0.5"
3. CLW nasal approx 2"x0.25" at side below left eye ball
30. No doubt that the injured had sustained the above stated State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.16 of 19 injuries. But the injured himself has not supported the case of the prosecution and he has never stated that the accused had caused injuries on his forehead, nasal and other parts of body. Therefore the MLC does not find corroboration from the testimony of injured in this case.
31. In overall analysis of the prosecution witnesses testimony of PW6 who is injured, his testimony is unworthy of credit and in the absence of any circumstances & in consideration of his testimony and on the basis of evidence on record the accused cannot be convicted. In view of the facts and circumstances of the case, the prosecution has failed to prove its case against the accused and on the perusal of the testimony and version of prosecution the case of the prosecution seems to be doubtful against the accused and full of contradictions and discrepancies. There is no substantive evidence against accused in this case.
32. From the foregoing facts and circumstances of the case and the reasons given above, I give the benefit of doubt to the accused Rajesh @ Jai Bhagwan and acquit him from the charges levelled against him u/s 307/397 IPC.
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33. Accused also been charged u/s 174II IPC in this case. On perusal of the record, it is revealed that accused did not appear on 19.9.2007 and NBW were issued against him. Thereafter proceedings u/s 82/83 Cr.PC were initiated and accused was declared proclaimed offender on 09.09.2009. Thereafter fresh kalandra was filed u/s 41.1(C) Cr.PC on 30.6.2012 and additional charge u/s 174 PartII of IPC was framed. The prosecution has examined PW12 HC Rajender Singh and PW13 HC Rakesh who had arrested the present accused after he was declared proclaimed offender. Both the PWS have stated that accused was arrested on the basis of secret information from house no. RZ223, Z Block, 40 foota road, New Roshanpura, New Delhi. Both the PWS have not been cross examined by the Ld. Defence counsel despite opportunity was given. Ld. Defence counsel has stated during the course of arguments that the accused was in some other jail during this period. There is no question/suggestion put by the Ld. Defence counsel to PW11 IO/SI JP Singh in this respect. Also, no such record has been placed on file showing that accused was in jail in some other case during the said period.
34. The accused, in this case was declared proclaimed State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.18 of 19 offender vide order dated 09.09.2009 after execution of process u/s 82/83 Cr.PC. In view of my above discussions, I am of the view that the prosecution has successfully proved its case against the accused for the commission of offence punishable u/s 174II of IPC and he is convicted thereunder.
Announced in the open Court on 21.12.2012 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Rajesh @ Jai Bhagwan @ Lila FIR no. 261/02 Page No.19 of 19