Delhi District Court
State vs Subhash Kumar on 23 July, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL. SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 104/10
State Vs Subhash Kumar
S/o Sharat Kumar
R/o Sukna Part II,
District Darjeeling,
West Bengal.
Also at :
R/o K23, Dakshin Puri,
Ambedkar Nagar, New Delhi
FIR No: 370/08
P.S. Ambedkar Nagar
U/s. 302/34 IPC
DATE OF INSTITUTION : 13.10.2010 (Initial date
of Institution 28.11.2008)
JUDGMENT RESERVED ON : 18.07.2011
DATE OF DECISION : 23.07.2011
JUDGMENT:
1. On 28.07.2008 at 7.40 am vide DD no. 56 A, an information regarding lying of a dead body near watertank behind bus stand of room no. 521, Dakshin Puri was recorded. On receiving the same SI Dharampal alongwith Ct. Ravinder Lakra reached the spot and found one dead body State vs. Subhash Kumar SC no. 104/10 1 of 45 facing downwards under an Innova car no. DL 1Y B 2062. There was lot of blood found along side the dead body and also near by and also on the stones lying near by. Crime Team inspected the spot and photographs of the dead body were taken. As no eye witness was found, dead body could not be identified and was sent to AIIMS mortuary.
2. For identification of dead body it was preserved three times for 72 hours duration and the hue and cry notice was issued. Further his photographs were sent to missing squad and local inquiries were also conducted but the dead body could not be identified. Therefore on 06.08.2008, postmortem of the deceased was conducted.
3. During investigation, an information was received that a person of the same make up was working with Singhania Hospital and further one Mr. Dharam Singh Yadav of Mac Tech Systems had identified the dead body on 24.08.2008 from its photographs and stated the name of dead person as Santosh Kumar Sharma, who was resident of Bihar. Thereafter, postmortem report was collected and doctor opined the cause of death in this case is "cranial cerebral damage consequent upon injuries caused by blunt force" pursuant to which an FIR u/s. 302 IPC was registered on 25.08.2008 and investigation was handed over to SHO M S Punia.
4. IO has prepared the site plan of the spot on the pointing of Dharam Pal Gulia and the seizure of articles made during inquest proceedings by SI Dharam Pal were seized in present FIR. Further statement of driver of said State vs. Subhash Kumar SC no. 104/10 2 of 45 Innova car was recorded, who stated that he do not know dead person. During investigation, statement of Yash Kumar Tamta, Manjeet @ Montu and Babita Gupta were recorded who told that deceased Santosh Kumar was beaten very badly by Subhash, Govind and Paramvir consequent to which he died.
5. During investigation, it was found that the accused Subhash was resident of Darjeeling and he was arrested from there on 31.08.2008. Deceased was further identified on the basis of photographs and clothes by his wife Kiran and brother in law Surender Kumar Sharma and after completion of investigation charge sheet was filed against the accused and proceedings u/s. 82/83 Cr.P.C. were initiated against accused Paramvir and Govind.
6. On committal, charge was framed u/s. 302/34 IPC against the accused Subahsh Kumar vide order dated 04.05.2009. Prosecution had examined 26 witnesses for substantiating charge. PW1 Surender Kumar Sharma and PW2 Kiran Kumar are brother in law and wife of the deceased, respectively. PW3 Yash Kumar Tamta, PW4 Montu @ Manjeet and PW15 are alleged eye witnesses. Other prosecution witnesses are employers of deceased, doctors and police officials. Brief summery of their deposition is as follows.
Deposition of Eye Witnesses
7. PW3 Yash Kumar Tamta in deposition before court deposed that he State vs. Subhash Kumar SC no. 104/10 3 of 45 knew accused Subhash Kumar who reside in their block. On 27.07.2008, he was going towards house of Montu for walking after taking food and at about 9.30 p.m. when he was smoking cigarette with Montu @ Manjeet at bus stop route no. 521, they saw accused Subhash at bus stop alongwith Govind and Paramvir. In the meantime, one person viz., Santosh Kumar Sharma came down from bus. Accused Subhash with Paramvir and Govind were talking about Santosh that he is talking too much these days and thereafter an abuse took place with Santosh Kumar Sharma and when they were manhandling him, they also reached spot and tried to save Santosh. He further deposed that Santosh Kumar Sharma had became red due to oozing of blood and he fell down and further when they told Govind to leave Santosh, then they told if they will leave him it will become police case. Thereafter accused Subhash, Govind and Paramvir picked up stones and hit deceased Santosh Kumar Sharma on chest and on his face and after that Santosh Kumar become motionless. He further deposed that thereafter Govind and others asked them if they reveal this to anybody they will meet the same fate.
8. He further deposed that after one month police came to his house for inquiry of Subhash as he ran away with a girl and they picked him them in that connection. Therefore, they thought they were picked up in connection of murder and hence disclosed all the details to police. Thereafter police came to know that Santosh Kumar Sharma was murdered by accused persons.
State vs. Subhash Kumar SC no. 104/10 4 of 45
9. In cross examination he deposed that he reached his home at 11.30 p.m. after the incident and distance between place of occurrence and his house is 1015 minutes walk. He further deposed that he did not meet any police officer or any respectable of locality on the date of incident when he went to his home. He further disclosed the incident not even to his family members due to threat given by accused. . He further deposed that he never studied with accused Subhash nor worked with accused Subhash. However, worked as waiter in one or two marriages with accused Subhash but cannot tell the detail of marriage function. He further deposed that he did not tell the police he knew accused Subhash because he had worked with him in marriage function. He further deposed that he cannot tell the date on which his statement was recorded by police in police station.
10. He further deposed that stones which were picked up by accused persons were lying at spot and it is an inhabitant place and incident took place at a distance of 45 minutes walk from the place where they were sitting and smoking. He further deposed that there are shops nearby but place of occurrence was at the back side of the shops. He further deposed that it is correct that it is MCD park and place of occurrence was not remote area (vol. deceased was taken by accused silently). He denied suggestion that he was not present at the time of incident and no offence was committed in his presence. He further deposed that it is correct that he is not very well acquainted with accused persons but know them because they were resident of same locality. He further deposed that he did not meet accused Subhash after incident till his statement was recorded (vol. Accused had ran away State vs. Subhash Kumar SC no. 104/10 5 of 45 with a girl). He further deposed that deceased Santosh Kumar was not staying with him and had never worked with him and was not known to him. He further deposed that he know accused Subhash for last 23 years. He further denied suggestion that accused Subhash was falsely implicated and murder was committed by Govind and Paramvir. He further denied suggestion that on the day of incident it was not Subhash but he and his friends Montu accompanied Govind and Paramvir.
11. PW4 Montu @ Manjeet deposed that on 27.07.2008 after taking dinner he went on for walking towards bus stop route no. 521 and on way met his friend Yash and both went to bus stop 521 for smoking cigarette and when they purchased cigarette near at bus stop, three persons were sitting viz. Subhash, Govind and Paramvir. He further deposed that he know very well accused Subhash because he resides in their locality but do not know Govind and Paramvir.
12. He further deposed that at about 10.00 p.m. one person came down from the bus and on seeing him accused Subhash, Govind and Paramvir talking each other and said "aaj isko sabak sikhate hain". They removed him towards park and started beating him with kick and fist blows but they tried to intervene. In the meanwhile Santosh Kumar fell down on earth crying for "pani pani". He further deposed that when he went to take water accused Paramvir took stone and threatened them not to leave spot and thereafter accused Paramvir hit stone on the mouth of Santosh Kumar. He further deposed that all accused persons had threatened them that if they State vs. Subhash Kumar SC no. 104/10 6 of 45 disclosed about the incident they will kill them. They further told if they will be booked in the case, they will falsely implicated them in that case also. He further deposed that all three accused persons were beating Santosh Kumar with stones. He further deposed that one bag of the deceased lying at the spot was checked by Paramvir and accused Subhash had seen inside bag and some papers and documents. Accused Subhash kept those papers and bag was handed over to accused Paramvir. He further identified accused Subhash and also stated that he can identify Govind and Paramvir, if shown to him. He further deposed that accused had threatened them not to disclose this incident and due to fear they have not disclosed the same to anybody.
13. He further deposed that when police had come for interrogation of accused Subhash regarding kidnapping of a girl, he and Yash had under fear had disclosed each and everything about the incident to the police. He further deposed that police had inquires about the whereabouts of accused Subhash to which he stated that accused was working at TV shop in H Block.
14. In cross examination he deposed that he do not remember the date when he reached police station nor remember police officer lifted him regarding inquiry of kidnapped girl. He further deposed that he alongwith Yash Kumar was lifted by police from the house of Yash at Dakshin Puri. He further deposed that when he was lifted by police for inquiry his signatures were obtained on 23 blank paper.
State vs. Subhash Kumar SC no. 104/10 7 of 45
15. He further deposed that accused did not study with him in any class but resided in his locality since long. He further deposed that he do not know his house no. but he resided in C Block, Dakshin Puri. He further deposed that he never worked with Subhash and used to procure waiters through brother of the accused. He further deposed that he told to the police that three persons viz. Subhash, Govind and Paramvir were already at bus stand before he and Yash reached bus stand to smoke cigarette, confronted with his statement Ex. PW4/A
16. He further deposed that he do not know deceased Santosh before incident. He further told that he do not recollect if he had seen deceased before incident. He further deposed that he heard the name of deceased Santosh Kumar from accused persons first time on the date of incident and second time from police officials. He further deposed that photograph of the deceased was shown to him but he could not identified the deceased as his face was badly mutilated. However, he identified deceased from small photograph. He further deposed that he had not stated in his statement to police regarding fact of showing photograph of deceased. He further deposed that he reached his house at 11.30 after incident and he denied the suggestion that he do not know accused Subhash. He further denied suggestion was not with accused Paramvir and Govind. He further deposed that he cannot say whether deceased Santosh was alive or dead when they left the spot. He further denied suggestion that he was not present at the spot. He further deposed that he cannot tell from which route no. bus deceased got down. He further denied suggestion he alongwith Paramvir State vs. Subhash Kumar SC no. 104/10 8 of 45 and Govind were also involved in this case.
17. PW15 Smt. Babita Gupta deposed that on 28.07.2008, she was present at her house situated at the first floor on road side and at about 10.00 p.m. she saw three person Montu, Subhash and one other person whom, she do not know and they were purchasing cigarette from their tenant. She correctly identified accused Subhash, present in the court. She further deposed that accused Subhash and Montu were quarreling with third boy deceased and 23 boys joined accused Subhash and Montu. She further deposed that she do not know the name of those boys but can identify those boys by face. He further deposed that accused and those boys had taken that boy on motorcycle from bus stand 521. She further deposed that at about 12 midnight accused and his companion brought third boy near park. She further deposed that they were trying to snatch the bag of third boy (deceased) but that body insisted he did not hand over that bag. Thereafter accused persons started hitting third boy. She further deposed that accused and his companion gave merciless beatings to third boy (deceased) and took him to the park in which water tank was situated. She further deposed that accused and his companion gave beating to third boy with kick and fist blows and also by stones and accused Montu forcibly caught hold the third boy (deceased).
18. She further deposed that in the morning she came to know about that a murder had been committed in the said park and she had gone to the spot and found deceased was lying under the vehicle but could not see his face State vs. Subhash Kumar SC no. 104/10 9 of 45 as it was towards ground side. She further deposed that after some day she went police station and informed about accused persons.
19. In cross examination she deposed that in the house in which she reside is owned by her father and her parents resides with her. She further deposed that she had told police that she had seen Subhash, Montu, Askash and deceased near her shop on 28.07.2008 near 10.00 p.m. and furhter that they had left after sometime after taking cigarette and they were trying to get the bag which was with the deceased. He further denied suggestion that at the time of incident she had only seen Yash and Montu and not accused Subhash. He further deposed that she had told police name of accused Subhash and also can identify accused Subhash, confronted with her statement Ex. PW15/DA, where name of Subhash and the witness can identify the person Subhash is mentioned. He further deposed that she had told police that she can identify three persons, who had joined Yash and Montu in beating of deceased, confronted with Ex. PW15/DA where this fact is not mentioned. He further deposed that she had told police that after incident injured had taken on motorcycle by accused and accused Subhash was pillion driver, confronted with Ex. PW15/DA, where it is not so recorded. (on court query, she deposed that she identified accused Subhash who is resident of same locality and residing with his brother). He further deposed that she had told police that all boys had come again to spot at 12.00 midnight, confronted with Ex. PW15/DA where it is not so recorded. She was further confronted with her statement on the fact that she had seen the dead body of the deceased. She further deposed that her statement was State vs. Subhash Kumar SC no. 104/10 10 of 45 recorded after the arrest of assailants, however, by that time accused Subhash was not arrested.
Deposition of brother in law and wife of the deceased
20. PW1 Surender Kumar Sharma deposed that his sister Kiran Devi married to deceased Santosh and he was informed about murder of Santosh by Ambedkar Nagr police and identified the dead body by seeing photograph and other belongings at PS Ambedkar Nagar. He further deposed that Santosh came to Delhi with Govind and Paramvir, both were resident of his village. He further deposed that both accused insisted Santosh for doing job in Delhi and good salary can be obtained and after one month they received information of his murder. He further deposed that they had a doubt about the murder being committed by both the accused because of some dispute over land situated at native place. He further deposed that there is no dispute about marriage of his sister with Santosh with the accused. On being declared hostile, in cross examination by Ld. Addl. P.P., he denied suggestion that accused Paramvir was angry with marriage of his sister Kiran with deceased Santosh.
21. In cross examination he deposed that marriage of his sister solemnize with Santosh four month prior of the incident. He further deposed that he cannot tell the date of marriage. He further deposed that it is correct that accused Govind was not the resident of his village and was resident of nearest village.
State vs. Subhash Kumar SC no. 104/10 11 of 45
22. PW2 Smt. Kiran Kumari deposed that deceased came to Delhi alongwith Paramvir, Govind and Sunil from their village and on being informed by police, she came to Delhi alongwith her brother Surender Kumar Sharma and identified the photographs of the deceased. She further deposed that they had a dispute with Paramvir and his family over plot situated in their village. On being declared hostile, in cross by Ld. Addl. P.P. she denied any dispute on her marriage with deceased. She further denied suggestion that she stated to the police that Govind and Paramvir might have murdered her husband with help of some other person though she was confronted with her statement. She further correctly identified her husband from the photograph.
Deposition of other public witnesses
23. PW6 Om Prakash deposed that one Prakash brother of the Subhash Kumar was his tenant and Subhash used to stay with his tenant for one or two days but cannot identify Subhash. In cross examination he was confronted with statement Ex. PW6/A and on being putting specific question he deposed that it is correct that accused Subhash is present in the court who is brother of his tenant.
24. PW8 Dharam Singh Yadav deposed that he was running business of laundry business in Singhania Hospital and on 24.08.2008 he was called by SI Dharmapal at PS and shown photograph of deceased and he had State vs. Subhash Kumar SC no. 104/10 12 of 45 identified the photograph of deceased Santosh. He further deposed that he had given one photocopy of high school certificate of Santosh and also photocopy of bio data of deceased to IO. He further deposed that Santosh Kumar had worked with him for about 10 days thereafter he left his company and told him that he had join Iron Man Security Service, South Ex. In cross examination he deposed that his statement was recorded by IO on 24.08.2008 and further deposed that he did not meet IO prior to this incident.
25. PW9 Dharam Singh deposed that he had parked his Innova car DL 1YB 2062 at about 2.00 p.m. on 27.08.2008 near water tank and on 28.08.2008 when he reached at the about site, he found lot of police person, public person and media persons were present there and saw one dead body was lying under parallel side of his vehicle on the road. In cross examination he deposed that the bus stand of route no. 521 is just near the water tank and the parking space where his vehicle was parked easily visible from bus stop. He further deposed that his statement was recorded at spot on 27.08.2008 and not on 15.09.2008.
26. PW16 Y N Sharma, laundry supervisor of Pushpawati Singhania Institute deposed that deceased Santosh Kumar worked in their institute on 25.05.2008 to 02.06.2008 under the supervision of contractor. He further deposed that he had not worked under him and his statement was not recorded by the police.
State vs. Subhash Kumar SC no. 104/10 13 of 45 Deposition of doctor and mechanical expert
27. PW7 Dr. Manish Kumar, Assistant Professor deposed that on 06.08.2008, he had medically examined unknown person, aged about 30 years with alleged history of found dead lying near vehicle with multiple injuries on head. On examination the following ante mortem external injuries were observed:
1. Stellate shape lacerated wound present in the area of 5 cm X 3 cm X bone deep was present just above occipital region.
2. Lacerated wound measuring 3 cm X 1.5 cm X bone deep was present over right parietal region, 8 cm above right eye brow.
3. Lacerated wound measuring 2 cm X 1 cm X bone deep was present 3 cm above inner side of right eyebrow.
4. Lacerated wound measuring 4 cm X 1 cm X bone deep was present over left parietal region, 5 cm above left eye brow.
5. Lacerated wound two in number each measuring 4.5 cm X 1 cm X bone deep and 4 cm X 2 cm X bone deep respectively were present over chin. The underlying bones were fractured and fragmented into multiple pieces.
6. Nasal bone was fractured.
7. Abrasion measuring 5 cm X 4 cm was present over left cheek.
8. Abrasion measuring 4 cm X 3 cm was present over right cheek.
9. Abrasion measuring 4 cm X 3 cm was present over left calf region.
State vs. Subhash Kumar SC no. 104/10 14 of 45
28. On internal examination fracture in the scalp was observed and meninges and cerebral vessels were irregularly lacerated alongwith fractured side.
Further hemorrhage present all over the brain surface and there is a fracture on low jaw and 5th and 6th ray and postmortem report was Ex. PW7/A and cause of death as per his best knowledge and believe is cranial cerebral damage consequent upon head injury sustained by blunt force. He further deposed that he had sealed exhibits blood in gauze and viscera and handed over to IO. In cross examination he deposed that he had not physically conducted the postmortem and further deposed that time since death in this case was 11 to 12 hours and it is correct that heavy vehicle like truck if ran over head of any persons in road accident than such kind of injury is possible.
29. PW5 Shri T U Siddiqui, motor vehicle inspected who mechanically inspected that Innova car bearing no. DL 1 YB 2062 and opined that vehicle was not involved any type of fresh accident. In cross examination he denied suggestion that he had not physically inspected the vehicle and prepared report at the instance of the IO.
Deposition of police officials
30. PW10 SI Jitender Kumar , mobile crime team, south district deposed that on 27.07.2008 he alongwith photographer Ct Girdhar reached at the spot and photographs of dead body were taken on his direction and prepared report vide Ex. PW10/A. PW11 SI Manish Kumar prepared State vs. Subhash Kumar SC no. 104/10 15 of 45 scale site plan of spot. PW12 HC Rameshwaram deposed that he recorded the FIR on 25.08.2008 and investigation was handed over to SHO M S Punia. He further deposed that he recorded DD no. 23A and 24 A on 25.08.2008. In cross examination he denied suggestion that FIR and DDs are ante time and ante date. PW13 Ct. Karan Singh deposed that on 25.08.2008 he delivered the copy of FIR to senior officers and concerned MM. PW14 HC Inderjeet Singh deposed that he had deposited two pulandas containing exhibits and case property to CFSL Kolkata on 29.10.2008. PW17 HC Surender Singh deposed that on 28.07.2008, when he was present in police station alongwith SI Dharam Pal Singh one person viz. Dharam came to police station and presented two document one mark sheet of 10th class and other was one biodata. In cross examination he denied suggestion that he had not joined the investigation alongwith SI Dharam Pal on 28.07.2008.
31. PW18 Ct. Vikram Singh deposed that on 11.09.2008 he joined investigation with SI Dharam Pal and accused Subhash pointed out place of occurrence near pani ki tanki, bus route no. 521, Dakshin Puri. He further deposed that accused had pointed out the place near park near pani ki tanki where one Innova was parked and accused has stated that he alongwith Govind and Paramvir hit deceased accused with stone and kick and throw him under the innova car in order to look it like accident. Thereafter accused taken to Virat ground where he had burnt the bag of the deceased and thereafter at the house of his brother Prakash and from inside diwan took out plastic bag containing mark sheet and one enrollment form of State vs. Subhash Kumar SC no. 104/10 16 of 45 Jaguar Security, receipt, one empty voucher, one empty form, one empty paper bearing signature of deceased Santosh one visiting card of Kleaning and Right, one visiting card of Pushpawati Singhania Hospital. In cross examination he deposed that he left for police station alongwith SI Dharamal at 10.00 am on 11.09.2008 and reached spot at 10.15 am and it is correct that on the date of incident no Innova car was parked there and no public person was joined in the investigation at spot. IO had not prepared site plan of bushes behind the ground and reached C block at around 12.00 O clock but unable to tell any name of neighbours of his brother Prakash. IO had not prepared any site plan of house of Prakash from where recoveries were affected.
32. PW19 Ct. Mahinder Singh deposed that on 28.07.2008 on receiving DD no. 56A he alongwith SI Dharampal went to spot where one dead body of male was lying beneath innova and was taken to AIIMS mortuary in Tata 407 to preserved the same and dead body was preserved for 72 hours twice on 31.07.20078 and 03.08.2008 and postmortem of the dead body was conducted on 06.08.2008. In cross examination he deposed that they left for spot at 8 or 9 am and lot of public persons were gathered at spot around 5060 people. He further deposed that it is correct that surrounding of the spot where dead body was lying is a residential area.
33. PW20 HC Mahavir Singh, Malkhana Moharrar deposed that on 28.0.2008, SI Dharam Pal deposited five pulanda and on 06.08.2008 deposited two exhibits containing viscera and blood sample and two clothes State vs. Subhash Kumar SC no. 104/10 17 of 45 one black colour dora and one kamar dora was also deposited on the same day. PW21 Ct. Robinder Lakra deposed that on 28.07.2008, he went to spot with SI Dharam Pal and one dead body was lying under Innova car and lot of crowd also gathered. He further deposed that two stones stained with blood were also lying beside dead body and lot of blood was scattered around dead body. After sometime Crime team also reached the spot and inspected spot and took several photographs and dead body was sent to postmortem with Ct. Mahender Singh. In cross examination he deposed that he do not know who was the informant of DD and PCR van was there when they reached the spot. He further deposed that he saw dead body lying beneath the car but do not remember make of car at spot. Again said innova car. He further deposed that after dead body recovered beneath the car photography of the dead body was conducted and dead body was lying with face down beneath car. He further deposed that IO did not prepared the punchnama at spot and IO packed the two stones recovered from spot and he do not know why FIR was not recorded on the same day. He further deposed that the distance from the bus stand of 521 and innova car was around 200 yards and there were no blood stain found near bus route no. 521.
34. PW22 HC Som Pal deposed that 31.08.2008, he alongwith SI Jitender Kumar went to PS Sukhana, District Darjeeling and alongwith one constable raided the house of accused Subhash Pal. Accused Subhash was arrested and interrogated by SI Jitender and thereafter accused was produced before court. In cross examination he deposed that accused was State vs. Subhash Kumar SC no. 104/10 18 of 45 arrested 10.40 am and produced in court after lunch. PW23 Ct. Girdhar Singh deposed that on 28.07.2008 being member of mobile crime team as photographer reached near the spot and on request of IO had taken 9 photographs of dead body and spot from various angles. In cross examination he deposed that crime team reached the spot at 8.00 am and remained there till 9.30 and PCR van not reached the spot.
35. PW25 SI Jitender Singh deposed that on 28.08.2008, he was directed by SHO to arrest accused Subhash from Sukhana district Darjeeling and on 31.08.2008 he alongwith local police officials and incharge of district Sukhana arrested the accused from his house and thereafter he was interrogated and was taken for medical examination and was produced before the court in Kurshang but court has refused transit remand. In cross examination he denied that accused Subhash was not remained in his custody and no confession of the accused was recorded by him. Deposition of Investigating Officers
36. PW24 SI Dharam Pal in his deposition states that on 28.07.2008 after receiving DD no. 56A went to spot and found one dead body lying under Innova car and lot of public had gathered there. Crime Team was called at the spot and photograph of dead body and spot were taken from various angles and even after inquiry from public persons identity of the dead body could not be established and dead body was sent to AIIMS mortuary. He had lifted two pieces of stones with blood stains and earth control with and State vs. Subhash Kumar SC no. 104/10 19 of 45 without blood stains and further collected pair of shoe from the spot. As the identity could not be established dead body was persevered twice for 72 hours at mortuary and on 06.08.2008 postmortem of the deceased was conducted.
37. He further deposed on 24.08.2008 one Dharam Singh Yadav had came to police station and when he had shown him clothes and photograph of the deceased, he identified him as Santosh Kumar Sharma who was deputed by him in Singhania Hospital. Dharam Singh Yadav further shown him school certificate and biodata of Santosh Kumar Sharma. After collection of postmortem report he discussed matter with SHO and rukka was prepared and case was registered and investigation was handed over to SHO M S Punia. On 08.09.2008, wife and brother in law came to police station and were shown clothes and photographs of the deceased and they identified deceased as Santosh Kumar Sharma. He further deposed on 11.09.2008 accused Subhash in custody pointed out the place of occurrence and further taken them to Virat ground and stated that the bag was burned there and thereafter taken the police to C313 Dakshin Puri, Ground Floor and from inside room, taken out one plastic envelope from diwan in which original school certificate and other documents were found.
38. In cross examination he deposed that information was given through one Naresh and he tried to search him but could not find him. He further deposed that public persons helped him removing dead body but he had not recorded their statement. Panchanama was recorded at spot and panchnama State vs. Subhash Kumar SC no. 104/10 20 of 45 proceedings were mentioned in inquest proceedings. He further deposed that there are shops adjoining the bus stand but he had not inquired from them about the incident. He further deposed that he do not know whether the name of the cobbler is Naresh or not. He further states that he had mentioned in telex message that deceased appears to be mommdam by face. He further deposed that relatives of the deceased had not asked for dead body because the dead body was already handed over to Wakf board for burial.
39. He further deposed that he had called Dharam Singh Yadav by telephoning him on 24.08.2008 perhaps he got his telephone number from Singhania Hospital and SHO had already inquired about Singhania Hospital. He further deposed that he had not recorded the statement of Dharam Singh Yadav when he had handed over the photocopy of certificate and bio data of deceased Santosh Kumar Sharma. He further deposed that he had not taken any business or visiting card from Dharam Singh Yadav. He further deposed that he do not remember whether in the bio data local address of deceased was mentioned. He further deposed that he had not asked Dharam Singh Yadav about local address of deceased. And further stated that he had not demanded any appointment letter or attendance register from Dharam Singh Yadav and had not had inquired the same from Singhania Hospital. He further deposed that he had not inquired about the local of the deceased and from wife and brother in law of the deceased. He further deposed that he do not remember whether in any of the documents local address of deceased of Delhi is mentioned. He further deposed that it State vs. Subhash Kumar SC no. 104/10 21 of 45 is not in his knowledge whether any person on 10.08.2008 had given any information in police station regarding this incidence.
40. He further deposed that relatives of the deceased came to police station on intimation by SHO and he had no knowledge whether Montu and Yash were apprehended by police in present case.
41. PW26 SHO M S Punia deposed that he was posted as SHO, PS Ambdekar Nagar on 28.07.2008 and alongwith staff reached the spot and found one dead body under the Innova car. Crime team was called at the spot and photographs of dead body were taken. Dead body was sent to AIIMS mortuary and during inquiry name of the deceased was revealed as Santosh Kumar Sharma son of Har Prasad resident of village Saunbasa district Buxar, Bihar. He further deposed that on 25.08.2008 FIR was registered and investigation of the case was handed over to him and thereafter on pointing out of SI Dharam Pal prepared the site plan. Thereafter, SI Dharam Pal left the spot and he alongwith staff made inquiries from public persons and two eye witness viz. Manjeet @ Monu and Babita met him and he recorded their statement who disclosed that Subhash, Paramvir and Govind were involved in the commission of offence and on the next day 26.08.2008 one eye witness viz. Yash Kumar @ Yash Singh met at his residence and told that he was an eye witness of the incident.
42. He further deposed that during inquiries he came to know that accused State vs. Subhash Kumar SC no. 104/10 22 of 45 Subhash hails from Darjeeling district and a team was sent for arrest of the accused and on 08.09.2008 wife of the deceased and his brother in law identified the dead body from photographs and his clothes. On 11.09.2008 accused pointed out the place of occurrence. Thereafter taken the police party to Virat ground where he had burned the handbag. Further recovered from his brother's house at Dakshin Puri, 10+2 certificate and other documents of Santosh Kumar. On 27.112008 on completion of investigation charge sheet was filed against accused.
43. In cross examination he deposed that he tried to locate Naresh but could not find him. He further deposed that there is cobbler and paanbidi shop at bus stop but none of the shopkeeper told their name as Naresh and it is incorrect to suggest that the name of cobbler is Naresh. He further deposed that no site plan was prepared at spot on 27.08.2008 by him and he do not whether SI Dharam Pal had prepared any site plan or not. He further deposed that from the appearance of the deceases they inferred him mohmdam and SI Dharam Pal handed over the dead body to Delhi Wakf Board.
44. He further deposed that SI Dharam Pal had recorded the statement of Dharam Singh Yadav on 24.08.2008 and he was called on 24.08.2008 by SI Dharam Pal. He further deposed that SI Dharam Pal had not told him about the fact that how he got the telephone number of Dharam Singh Yadav. He further deposed that SI Dharam Pal had gone to Pushpawati Singhania Hospital after getting the information from Dharam Singh Yadav State vs. Subhash Kumar SC no. 104/10 23 of 45 that deceased was working in Pushpawati Singhania Hospital. He further deposed that he had not asked that how SI Dharam Pal he got telephone number of Dharam Singh Yadav and in bio data no local address of deceased was mentioned. He further deposed that relatives of the deceased to came through message but they had not show any tickets of travel from Bihar to Delhi and further had not inquired about the local address of deceased of Delhi. He further deposed that there is no document on record which could show local address of deceased. He further deposed that Surender Kumar Sharma and Kiran Kumari had not given any ID proof of deceased Santosh. He further deposed that he had not examined any witness who had stated any local address of Santosh Kumar.
45. He further deposed that Babita Gupta had told them by coming to police station that she witnessed presence of deceased Santosh Kumar, accused Subhash, Paramvir and Govind but had not recorded her statement on 10.08.2008 and recorded the same on 25.08.2008. He further deposed that Babita Gupta had told in her statement about Yash and Montu but he had contacted Yash and Montu after registration of case on 25.08.2008, but not contacted them prior to 25.08.2008. He further deposed that he do not know whether there is an order of ACJM, Kursiang, Darjeeling and only SI Jitender can tell about the same. He further deposed that inquest proceedings details were not sent to any magistrate and at the time of recovery of articles from house at the instance of accused Subhash they do not found any landlord and only one lady was found present who refused to sign on seizure memo.
State vs. Subhash Kumar SC no. 104/10 24 of 45
46. Accused in his statement u/s. 313 Cr.P.C. denied all the incriminating circumstances put to him and opted to lead defence evidence and stated that he was not in Delhi on 27.07.2008 and he do not know Paramvir, Santosh Kumar Shrama, Govind, Montu and Yash Kumar Tamta. He further states in his statement that he was arrested on 31.08.2008 by officer incharge PS Kursiang and not by SI Jitender Singh and had not made any disclosure statement to police staff in Delhi and was sent to J.C.
47. In defence evidence he examined one witness DW1 T L Sarthey, teacher cum clerk, Jai Hind Adarsh Vidyalaya, Piparia, District Haushangabad, MP who had brought transfer certificate of Santosh Kumar and stated that he had studied in the school upto 10th class and left the school in the year 1999 and last address of Santosh Kumar in school certificate is Vivigiri Ward, Panchmadi Road, Piparia, District Haushangabad.
Material Exhibits
48. Ex. PW26/A is DD no. 56A dated 28.07.2008 regarding information about the lying of dead at the spot by one Naresh through telephone pursuant to which SI Dharam Pal reached the spot and prepared rukka of the same on 25.08.2008 and Ex. PW12/B is endorsement made on rukka by HC Rameshwar pursuant to which present FIR Ex. PW12/A was registered. Ex. PW26/B is site plan of the spot prepared SHO M S Punia.
State vs. Subhash Kumar SC no. 104/10 25 of 45
49. Ex. PW24/K DD no. 44B dated 06.08.2008 is the information proceedings u/s. 174 Cr.P.C. and deposit of case property in malkhana in which SI Dharam Pal reported that postmortem of the deceased was conducted and the dead body was handed over to Delhi Wakf Board, Daryaganj Delhi as the deceased was identified as Muslim.
50. Ex. PW8/C is seizure memo dated 24.08.2008 of photocopy of high school certificate and bio data of deceased. Ex. PW24/M is seizure memo of document handed over by SI Dharam Pal Singh to IO on 25.08.2008. Ex. PW24/F is hue and cry notice dead body of unknown deceased. Ex. PW21/A is the seizure of two blood stained stones from the spot near the dead body. Ex. PW19/A is seizure memo dated 06.08.2008 of viscera. Ex. PW19/B is seizure memo dated 06.08.2008 of the clothes of the deceased. Ex. PW10/A is the report of crime team. Ex. PW5/A is the inspection report dated 28.08.2008 of Innova car no. DL 1YB 2068 with observation that there is nothing to suggest that vehicle was involved in any fresh type of accident. Ex. PW24/E is receipt dated 06.08.2008 of unknown dead body of receipt to Wakf Board by SI Dharam Pal. Ex. PW24/O is identification memo dated 08.09.2008 of clothes and photograph of deceased as the deceased was identified by his photograph and clothes by his wife Kiran and brother in law Surender Kumar Sharma. Ex. PW24/N is pointation memo dated 11.09.2008 of the spot by accused. Ex. 18/B is the seizure memo of recovered documents dated 11.09.2008. Ex. PW25/A is the disclosure statement dated 31.08.2008. Ex. PW11/A is the scaled site State vs. Subhash Kumar SC no. 104/10 26 of 45 plan of the spot dated 14.11.2008. Ex. PW24/L is the identification memo dated 24.08.2008 of the deceased on the basis of photograph seen by Dharam Singh Yadav. Ex. PW7/A is postmortem report of the deceased showing opinion on the cause of death as cranial cerebral damage consequent upon head injury sustained by blunt force. Ex. PW22/A is the arrest memo dated 31.08.2008 of accused from his house at Darjeeling.
51. Ex. PW25/P10 to P18 are the photographs of the deceased taken at the spot.
52. Ld. counsel for the accused submitted that the entire prosecution story lacks credibility and fabrication is writ large on the face of it. According to prosecution the incident took place at a crowded public place but despite this no independent witness was joined in the entire proceeding. Further there are adjoining Delhi Jal Board office and library , but no inquiry was made from those places. Ld. Counsel further submits that information about the lying of the dead body is given by one Mr. Naresh but that Mr. Naresh is not examined by the prosecution nor made any efforts to trace him. Ld. Counsel further submits that the prosecution unable to bring cogent evidence on record regarding identification of a dead body. As per PW24 the dead body appears to be Muslim but the article recovered from the body of the deceased shows that he is Hindu and later on alleged to be identified by PW1 and PW2 being a Hindu . He further submitted that the statement of PW1 and PW2 regarding identification of dead body cannot be relied upon because they never demanded the dead body. This fact State vs. Subhash Kumar SC no. 104/10 27 of 45 appears to be quite unnatural. Ld. Counsel further submitted that prosecution unable to bring on record the local address of the deceased which creates doubt about the identity of the deceased.
53. Ld. counsel for the accused also submitted that the prosecution case is that the dead body was first identified on 24.08.2008 by PW8 Dharam Singh Yadav but prosecution was unable to explain how this PW8 came in to contact with police. Ld. Counsel for the accused further submitted that the prosecution came to know about the assailants from Babita Gupta (PW15) as stated by PW26 in his cross examination on 10.08.2008 but despite this none of the assailants Montu and Yash were arrested. Ironically, these assailants Yash and Montu were made the eye witnesses. PW15 Babita Gupta in her deposition had changed the entire prosecution case by stating that PW3 and PW4 eye witnesses of incident are the assailants and culprits being involved in the murder of deceased Santosh Kumar Sharma. Ld. Counsel further submits that there is a delay in registration of FIR which is unexplained and deliberate. Ld. Counsel for the accused further submits that the arrest and disclosure of accused and consequent recoveries are all false and fictitious. Ld. Counsel further submits that prosecution unable to prove its case beyond reasonable doubts, hence accused is entitled for acquittal.
54. Ld. Addl P.P. on the hand submits that the deceased was duly identified by PW1 and PW2. Ld. Addl. P.P. further submits that accused was duly identified by eye witnesses, PW3, PW4 and PW15 and definite role is State vs. Subhash Kumar SC no. 104/10 28 of 45 attributed to him of killing the deceased with stones and that fact is duly corroborated by the medical evidence on record. Ld. Addl. P.P. further submits that there is incriminating recoveries of certificates and other documents of the deceased at the instance of accused. Ld. Addl. P.P. further submits that prosecution has proved its case beyond reasonable doubt and accused is liable to be convicted u/s. 302/34 IPC.
55. Arguments heard. Record perused.
Circumstance how police could able to first identify deceased Santosh Kumar
56. As per prosecution on 28.07.2008 dead body of unknown person (later identified as Santosh Kumar Sharma) was found at the spot. According to prosecution story, during investigation after recording of the statement of Dharam Singh Yadav on 24.08.08, they could able to first got identify of deceased. Shri Dharam Singh Yadav is examined as PW8. PW8 in his deposition before court testified that on24.08.2008, he was called by SI Dharam Pal PW24 (first IO) at police station and shown the photographs of the deceased and he identified deceased as Santosh Kumar Sharma and further handed over photocopy of one high school certificate and biodata of deceased Santosh Kumar. PW8 in his cross examination further deposed that he did not tell police that he is working in Singhania Hospital or running Singhania hospital. Though as per police investigation the deceased was sent by this witness to work at Singhania hospital.
State vs. Subhash Kumar SC no. 104/10 29 of 45
57. PW24 SI Dharam Pal in his examination stated that he had called this witness Dharam Singh Yadav by telephone to police station from Singhania hospital and perhaps he might got his telephone number from Singhania hospital as SHO had already inquired about the Singhania Hospital. PW26 SHO/IO Inspector M S Punia on the other hand submitted that on 24.08.2008, SI Dharam Pal (PW24) had called this witness Dharam Singh Yadav (PW8) in police station and SI Dharam Pal had gone to Pushpawati Singhania Hospital after getting the information from Dharam Singh Yadav and he had shown photographs of deceased at Pushpawati Ssinghania Hospital.
58. PW8 Dharam Singh Yadav deposed that he was called at police station by SI Dharam Pal, whereas SI Dharam Pal (PW24) in examination in chief stated that on 24.08.2008 one person Dharam Singh Yadav came to police station but in cross examination he deposed that Dharam Singh Yadav was called by him on telephone and got his number from Singhania Hospital as SHO had inquired from Singhania Hospital. Whereas SHO PW26 stated that SI Dharam Pal do not told him how he get number of Dharam Singh Yadav and SI Dharam Pal might have gone to Pushpawati Singhania Hospital himself.
59. PW24 SI Dharam Pal deposed that he got the knowledge of Singhania hospital and Dharam Singh Yadav from SHO PW26 whereas SHO PW26 deposed that he do not know how PW24 got the knowledge of Dharam State vs. Subhash Kumar SC no. 104/10 30 of 45 Singh Yadav and Singhania Hospital. Dharam Singh Yadav had not stated about his connection with Singhania Hospital neither PW16 Y N Sharam from Singhania hospital had named Dharam Singh Yadav in his statement. Though he had stated that deceased Santosh Kumar worked in the institute from 25.05.2008 to 02.06.2008.
60. Now the question that remained unanswered is how Dharam Singh Yadav (PW8) came to know that deceased Santosh Kumar was killed and how he came to police station. Particularly when deceased was not in contact with him nor working with him or at his instance. Further, how the police reached Singhania Hospital for the identity of deceased Santosh Kumar. Therefore, even the first circumstance how police got to know the identity of deceased Santosh Kumar firstly on 24.08.2008 is suspicious and points towards concealment of same material fact by the police.
61. This suspicion is further strengthen from the fact when in cross examination IO/SHO inspector M.S. Poonia (PW26) had stated that Babita Gupta (PW15) on 10.08.2008, had told about the presence of deceased Santosh Kumar, accused Subhash, accused Paramvir, accused Govind, Yash and Montu on the day of incident but he had not recorded her statement and this deposition of PW26 is at complete variance to the prosecution story which is based on the fact that deceased Santosh Kumar was first identified on 24.08.2008 (i.e. well after 10.08.2008) and pursuant to that statement of eye witnesses, Yash (PW3), Montu (PW4) and Babita (PW15) were recorded on 25.08.08 and accused Subhash Kumar was arrested on State vs. Subhash Kumar SC no. 104/10 31 of 45 31.08.08. PW 26 (IO) had not given any explanation why he had not taken any steps after getting knowledge of entire incident on 10.08.08. Further, fabrication is writ large as police had concealed this factum of knowledge of incident on 10.08.08 in chargesheet/investigation and projected story that they got knowledge of identity of deceased and involvement of accused on 24.08.08 and 25.08.08.
62. There is another jolt on the prosecution story because as per depositon of PW17 HC Surender Singh that on 28.07.2008 one person Dharam singh came to PS and presented two documents of deceased Santosh Kumar, one is marksheet and other was biodata and the same were exhibits as Ex. PW8/A and PW8/b and seizure memo of the same is Ex. PW8/C and in his cross examination he further submits that it is wrong to suggest that Dharam Singh had not come to police station on 28.07.2008 and not handed over the documents to IO. Now this witness gives another turn to prosecution and according to him police had got the knowledge of identity of the deceased even on 28.07.2008, one month prior to the date of knowledge i.e, 24.08.08 as alleged by prosecution.
63. Number of irreconcilable doubts arose over the fact that how the police first got to know about the identity of unknown dead body (of deceased Santosh Kumar Sharma) .
Eye Witnesses Account ( Babita PW 15, Yash PW 3 and Montu PW4) State vs. Subhash Kumar SC no. 104/10 32 of 45
64. Prosecution had examined three eye witnesses to the incident, PW15 Babita Gupta, PW3 Yash and PW4 Montu. As per prosecution story deceased Santosh Kumar was killed by accused Subhash Kumar, Paramvir and Govind on the night of 27.07.2008 and same was done in the presence of PW3 Yash and PW4 Montu but they due to fear had not reported the matter to the police.
65. PW15 Babita Gupta in her deposition testified that at 10.00 p.m. on the date of incident she saw three persons, Montu, Subhash and another person purchasing cigarette form the shop of her tenant and third boy was having a bag and accused Subhash and Montu were quarreling with him and in the meanwhile 23 other boys came and taken deceased to the bus stop of 521 and at about 12.00 p.m. accused and his companion brought the deceased near the park and give him merciless beatings in the park with kick and fist blows and also with stone. She further deposed that accused Montu forcibly caught hold of third boy and in the morning she came to know that the deceased was lying under the vehicle but she could not see his face as it was facing downwards. This witness besides accused Subhash had also implicated eye witness Montu in killing of deceased Santosh Kumar which is at total variance to the prosecution story which shows Montu and Yash as eye witnesses and not the culprits. In cross examination she was confronted with her statement as she has not mentioned the name of Subhash in her statement. Further she also deposed that she told the police that she can identify three persons who had joined Yash and Montu. This witness in cross examination had named another eye witness PW3 Yash, State vs. Subhash Kumar SC no. 104/10 33 of 45 who is involved in the murder of the deceased Santosh Kumar. Surprisingly prosecution had not made any efforts to declare this witness hostile. This witness have completely jolted the prosecution story by implicating eye witnesses PW3 and PW4 as culprits.
66. This PW15 in her cross examination had stated that her statement was recorded after apprehension of the assailants and before the arrest of accused Subhash. This avernment is important because as per prosecution story accused was arrested on 31.08.2008 and before his arrest the other assailants are in custody. But there are no other assailants in custody prior to the arrest of accused Subhash Kumar, which created doubt on the prosecution story and appears that police had released actual assailants from their custody and manipulated entire incident.
67. PW3 Yash Kumar another eye witness in his deposition deposed that on 27.07.2008 at about 9.30 p.m.he was smoking cigarette alongwith PW4 Montu and saw accused Subahsh, Govind and Paramvir coming at bus stop and in the meanwhile Santosh Kumar Sharma came down from a bus and after some altercation, accused Subhash, Paramvir and Govind started beating Santosh Kumar Sharma and when they tried to save, they were asked not to intervene and Govind told that if he leave Santosh Kumar Sharma then it will become police case. Thereafter, accused Subhash, Paramvir and Govind picked up stones and hit them on the chest and face of deceased Santosh Kumar Sharma, who thereafter became motionless.
State vs. Subhash Kumar SC no. 104/10 34 of 45
68. PW4 Montu deposed that after purchasing of cigarette he alongwith Yash saw three persons viz. Subhash, Govind and Paramvir sitting at bus stop. He and Yash also sit alongwith them and at about 10.00 p.m. deceased got down from a bus and on seeing him all three accused Subhash, Govind and Paramvir stated talking to each other "aaj isko sabak sikhlate hain" and all three started beating deceased with fist and kick blows, in the meanwhile Santosh fell down to earth and was crying "pani pani" and when he went to take water, Paramvir took stone and threatened him and Yash that he will kill them if they leave the place and thrown the stone on the mouth of Santosh Kumar and all threatened him and Yash that if they told it to anybody they will falsely be implicated in the incident.
69. There are variations in the statements of both eye witnesses PW 3 and PW
4. PW3 deposed that when they were smoking cigarette at bus stop three accused, Subhash. Paramvir and Govind came and whereas PW4 Montu stated that they were already sitting on a bench. PW 3 stated that all the three thrown stones on deceased, whereas PW4 named Paramvir only for hitting with stones. PW4 deposed about the fact that deceased was crying "pani pani" whereas PW3 had not deposed this material point. Both these eye witnesses had not deposed anything whether police had taken them to spot for clarification how the entire incident took place.
70. PW4 Montu @ Manjeet stated that there is some snatching of bag by the accused persons but this fact of snatching of bag is no where found in the statement of PW3. None of the witness had stated about anything material State vs. Subhash Kumar SC no. 104/10 35 of 45 which come out from the snatching of the bag from deceased. Only some documents of deceased came out as per prosecution story from snatching of the bag and those documents cannot in any manner thrown light why the dispute occurred between the deceased and the accused persons. Prosecution could not throw light on the motive part why the accused persons had killed the deceased.
71. PW3 and PW4 deposed that the police had picked them after about a month of the incident for inquiring about Subhash as he ran away with a girl but they thought they were picked up in connection with murder of Santosh Kumar therefore they disclosed entire details to the police. This explanation appears inherently incredible. Further there is no such kidnapping inquiry found on record. Even otherwise police got to know about assailants well before i.e, on 10.08.2011. But PW26 IO Inspector M S Punia deposed that in examination in chief that on 26.08.2008, he met eye witness Yash and recorded his statement and prior to that on 25.08.2008, he recorded the statement of Montu @ Manjeet and Babita Gupta. He nowhere stated that both these witnesses were picked up in inquiry about a kidnapping of a girl. Therefore, there is an apparent inconsistency between version of PW3 and PW4 with police version over the purpose of their apprehension.
72. There is one thing very material came in the cross examination of PW4 Montu that he could not identify deceased from the photograph shown by the police as his face was badly mutilated. However, he had identified the deceased from a small photograph. But as per prosecution case there State vs. Subhash Kumar SC no. 104/10 36 of 45 cannot be any small photograph with the prosecution on the day (i.e, 25.08.08) when this witness was examined as the documents supplied by PW8 Dharam Singh Yadav are photocopy of mark sheet and bio data and both these documents do not contain the photograph of the deceased. There is only one document on the record which had the small photograph of the deceased i.e. Ex. PW18/P2 enrollment form of Jaguar Security, which was allegedly seized by the police at the instance of accused Subhash Kumar on 11.09.2008, well after the recording of the statement of PW4 Montu in police station on 25.08.2008. Therefore, this makes recoveries made by police on 11.09.2008 at instance of accused Subhash questionable. Further shows police in possession of small photograph of the deceased from some other source which they concealed while presenting challan.
73. PW 15 though in her deposition had named accused Subhash as one of the assailants of deceased Santosh Kumar. But confronted with her statement U/S 161, where his name is mentioned. She further implicated in her deposition two other eye witnesses Yash (PW 3) and Montu (PW4) but this tainted the prosecution story from its core and further the PW 3 and PW 4 though knowing the assailants Subhash Kumar and others had even unable to tell their addresses to the police neither pointed out their place of residence. There are inconsistencies in the statement of PW 3 and PW 4. Further the manner of deposition and the facts and circumstances associated with their deposition as already discussed do not appear credible. On overall appreciation, the depositions of three eye witnesses i.,e 15 Babita Gupta, PW 3 Yash and PW Montu do not appear to be credible State vs. Subhash Kumar SC no. 104/10 37 of 45 and reliable and further given another colour to the prosecution case. Delay in registration of FIR and its effects:
74. According to prosecution the dead body of the deceased was found on 28.07.2008 under Innova car at the spot and post mortem was conducted on 06.08.2008 vide postmortem report Ex. PW7/A and as per the opinion of the doctor the death occurred due to head injury sustained by blunt force.
The postmortem and other circumstance of inquest therefore, clearly shows that the death is homicidal in nature but police had not registered an FIR till 25.08.2008. As per deposition of PW 4 SI Dharampal, on 24.08.2008 the dead body was identified by Dharam Singh Yadav (PW 24) and thereafter on 25.08.2008 he collected postmortem report and after discussion of the same, FIR in the present case is registered.
75. According to prosecution they identified deceased from PW 24 Dharam Singh yadav but even from the statement of Dharam Singh neither by the documents seized from him it can be inferred that police could able to trace the local address of the deceased Santosh kumar Sharma (even after completion of investigation and as also deposed by PW 24 SI Dharampal prosecution unable to know the local address of Delhi of deceased Santosh Kumar). It is unusual that just after registration of FIR, on the same day police came into contact of eye witnesses Montu and Babita and on the subsequent day on 26.08.2008 Yash. PW 24 SI Dharampal or IO PW 26 unable to explain how these three eye witnesses came into their contact on State vs. Subhash Kumar SC no. 104/10 38 of 45 25.08.08. Further, why they have not registered an FIR till 25.08.08 when the postmortem of the deceased was already conducted on 06.08.08 and death was found to be homicidal.
76. In cross examination, PW 26 IO stated that he got the knowledge of the entire incident on 10,08.2008 by PW 15 Babita but he had not recorded her statement and neither inquired about Yash and Montu. It clearly shows that IO got the knowledge of assailants as well as about the victim Santosh Kumar Sharma on 10.08.08 but had not inquired the same on that information. One thing more material from this averment that prosecution has concealed this factum of reporting of incident on 10.08.08 by Babita Gupta and pretended that they got the knowledge of the identity of deceased on 24.08.08 and further got recorded the statement of eye witnesses on 25.08.08 and 26.08.08. This point toward inference that true story is something else and police artificially cooked up another story and presented the same through present chargesheet.
77. This delay of registration of FIR on 25.08.08 when the police already got the knowledge of the entire incident on 10.08.08 is fatal and further raised irreconcilable doubts over veracity of prosecution version. Identification of dead body of deceased Santosh Kumar Sharma:
78. According to prosecution dead body of the deceased was firstly identified by PW 15 Dharam Singh Yadav from the photographs of the dead body.
State vs. Subhash Kumar SC no. 104/10 39 of 45 Thereafter, the brother in law Surender Kumar Sharma and his wife Kiran had identified the dead body from clothes and photographs in the police station and both these witnesses were examined as PW 1 and PW 2 and they also in their deposition testified that the deceased is identified in police station through his photograph and the belongings and their testimony remained unimpeached on this point.
79. Ld. Counsel for the accused stated that these witnesses could not relied for identification because it is unnatural that they have not asked for the dead body of the deceased which got buried as per Muslim Rites and further none of the witness had deposed that the deceased ever studied in Madhya Pradesh nor police had examined these witnesses by confronting them with the high school marksheet of the deceased alleged to be from Madhya Pradesh. Though, as per the prosecution story, the deceased and PW 1 and PW 2 wife of the deceased belongs to Bihar. Therefore, there is appreciable doubt over the identity of deceased person.
80. Though there is some force in the argument of the Ld. Counsel for the accused as the high school certificate which were of Madhya Pradesh were not put to the relatives of the deceased PW 1 and PW 2 but once the deceased is identified by PW 1 and 2 from the photographs of the dead body in which face of the deceased is clearly visible, then doubting the identity because these witnesses had not put the high school certificate and had not asked the dead body of the deceased is hardly material particularly seeing the background of these persons who are being poor and native of State vs. Subhash Kumar SC no. 104/10 40 of 45 some far of village in Bihar. Therefore, it cannot be inferred that prosecution unable to identify deceased in investigation. Circumstance of identifying the deceased as Muslim by the prosecution:
81. PW 24 Dharamp Pal Singh deposed that as deceased could not be identified despite of hue and cry notice, WT message on All India basis, therefore after conducting of the postmortem of the deceased on 6.8.08, the dead body was handed over to Delhi Waqt Board because the deceased appeared from his face as Muslim and consequently his burial took place.
82. Ld. counsel for the accused submitted that this assumption of the PW 24 SI Dharam Pal Singh that he appeared Muslim by face cannot be relied upon because as per the Ex.PW 19/B the seizure memo of the clothes of the deceased doctor handed over to Ct. Mahender Singh one gale ka dora, one black coloured qamar ka dora which is like janeu and if a dead body is wearing janeu then it cannot be identified as Muslim. Therefore, how the prosecution had identified the deceased as muslim. This also casts doubt on the identity of the deceased. But this infirmity of PW 24 Dharam Pal Singh cannot be looked more than miscalculation in the present facts and circumstances as deceased is duly identified by his wife (PW2) and brother in law (PW1).
Motive:
State vs. Subhash Kumar SC no. 104/10 41 of 45
83. According to eye witnesses PW 3 & 4 when the deceased came down from the bus accused Subhash Kumar , Paramvir and Govind started quarreling with him and further started giving him fists and kick blows and thereafter, hit him with the stones and in the meanwhile, they had taken away his bag in which certain documents were there. Those documents on the recovery were found to be bio data, high school certificate, enrollment forms etc. There is nothing in this recovery which would point out the purpose of killing of the deceased by the accused. PW 15 also deposed about some quarrel over the bag.
84. Prosecution in investigation also projects that as accused Paramvir was angry because of marriage of Kiran/PW 2 with Santosh Kumar Sharma and due to that enmity Paramvir and Govind killed Santosh Kumar Sharma but this fact is denied by PW 1 Surender Kumar Sharma brother in law of deceased and PW 2 Smt. Kiran (wife of the deceased).
85. Therefore, from prosecution story there are two motives of killing the deceased first is the snatching of bag and second is the enmity of Paramvir due to the marriage of Kiran Kumari with the deceased. This circumstance of enmity could not be proved. Further the snatching of bag in no manner appears to be incriminating against the accused. It is further inconceivable why accused Subahsh Kumar will kill deceased Santosh Kumar due to enmity with Paramvir. The prosecution has miserably failed to prove the motive of the said murder. The entire evidence as presented by the State vs. Subhash Kumar SC no. 104/10 42 of 45 prosecution in this regard is all patchy, artificial and not worth relying. Arrest of the accused Subhash:
86. As per the prosecution the accused Subhash was arrested from Sukhna Disttl. Darjeeling, Paschim Bengal on 31.08.08 and after arrest with the aid of the local police he was produced before the judicial Magistrate who had not given the transit remand but directed the accused to be produced at Delhi. As per the deposition of SI Jitender Singh PW 25, he was arrested and arrest memo and disclosure statement was recorded at Darjeeling in presence of local police officials but none of the local police official is made witness to his arrest memo or disclosure statement which casts doubt of their recording at Darjeeling.
Circumstances of the recoveries at the instance of accused Subhash Kumar:
87. As per deposition of PW 24 on 11.09.08 accused Subhash Kumar in custody had pointed out the place of occurrence and thereafter taken them to Virat ground where he had burned the handbag which was snatched from the deceased and thereafter to the house no. C34, Dakshin Puri one polythene bag was taken out from Diwan in which 10+2 certificate, enrollment form and receipt of full and final settlement and empty voucher of security services of deceased were recovered. The circumstance that the accused has burnt the bag at Virat ground is inconsistent with the statement State vs. Subhash Kumar SC no. 104/10 43 of 45 of PW 3 who deposed that papers and documents were kept by accused Subhash and bag was handed over to accused Paramvir. The obvious question is when the bag was handed over to Paramvir, how accused Subhash can burn it. Even otherwise, if from the prosecution case, accused Subhash had burned the bag, why he had not burnt the marksheet and other enrollment forms etc. of the deceased which are of his no use. Conversely, if accused had kept those forms and documents with him then what is so incriminating in that bag that he had to burn that bag. This circumstance of the prosecution burning of bag and recovery of documents on its face appears to be artificial and not at all reliable. Further, prosecution had not accompanied any independent witness during the entire proceedings at any point of time.
88. On over all appreciation of entire circumstances, prosecution version that the accused was first identified on 24.08.2008 by PW8 Dharam Singh Yadav is not at all reliable. Further PW 15 Babita Gupta had changed the entire colour of the prosecution by implicating PW3 and PW4 as culprits. Statements of other two eye witnesses PW3 and PW4 do not appears to be credible. Prosecution story on the factum that they first identified dead body on 24.08.2008 and further came to know about the accused from the statement of eye witnesses on 25.08.2008 and 26.08.2008 is all appears to be false and fabricated as PW26 Investigating Officer himself stated that he got the knowledge of entire incident on 10.08.2008.
89. In view of aforementioned detail discussion over the evidence led by the State vs. Subhash Kumar SC no. 104/10 44 of 45 prosecution. Prosecution miserably failed to prove its case beyond any reasonable doubt, therefore, accused Subhash Kumar is acquitted of charge u/s. 302/34 IPC. He be released from custody forthwith if not required in any other case. He is further directed to furnish personal bond in the sum of Rs. 20,000/ with one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 23rd July, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State vs. Subhash Kumar SC no. 104/10 45 of 45