Delhi District Court
Addl. Sessios Judge (North):Delhi vs . on 10 January, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIOS JUDGE (NORTH):DELHI.
S.C. No. 04/10
ID No.02401 R 0040332010
State
Vs.
(i)Manoj Kumar @ Dasha
S/o Sh. Ganesh Singh
R/o Vagabond Kucha Bagh,
Chandni Chowk,
Delhi.
(ii)Mohd. Saleem @ Imamuddin
R/o Vagabond Kucha Bagh,
Chandni Chowk, Delhi &
Village Mithapur, PS Gulavti
PO Gulavti, Distt. Bulandsahar, UP
FIR No.:262/09
PS : Kotwali
U/S 302/34 IPC
Date of Institution:20.1.10
Date of reserving judgment:15.12.10 & 3.1.11
Date of pronouncement:10.01.2011
JUDGMENT
1 In the present case, charge has been framed against accused Manoj Kumar @ Dasha and Mohd. Saleem @ Imamuddin in respect of offence U/S 302 read with Section 34 IPC. The allegation in SC No.04/10 1/16 2 the charge is that on the intervening night of 2526/9.09, at Shanti Desai Sports Park, Kaccha Bagh, Chandani Chowk they in furtherance of their common intention with coaccused Rahul Yadav @ Etta (facing trial in Juvenile Justice Board) and coaccused Maikanji (not arrested) committed the murder of Motta.
Accused pleaded not guilty to the said charge and claimed trial.
2 Prosecution has examined 21 witnesses to prove its case. They are Raffi (PW1), Sh. Sat Narain(PW2), Deepak Mathur(PW3), Ct. Uday Veer(PW4), ASI Jagat Singh(PW5), HC Balender(PW6), Ct. Dinesh (PW7), HC Gangavir(PW8), Ms. Poonam Sharma(PW9), Desh Raj (PW10), HC Sonu Kaushik(PW11), Ct. Rajesh Malik(PW12), Dr. S. Lal (PW13), Dr. Kiran Kathpalia (PW14), Dr. Kiran (PW15), Inspector Sanjeev Kumar(PW16), Dr. Akash Jhanjee(PW17), HC Pradeep Kumar(PW18), Inspector Sunil Srivastava(PW19), SI Vimal Kumar(PW20), Inspector P.S Chahal(PW21) .
3 Statements of accused have been recorded U/S 313 Cr.P.C, wherein they have denied the allegations of prosecution. They have submitted that they are innocent and have been falsely implicated in the present case.
SC No.04/10 2/16 3 4 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State. I have perused the case file. 5 In the present case, there is no eye witness to the offence of murder, allegedly committed by the accused persons. The prosecution case rests upon the circumstantial evidence.
6 "In Arun Bhanudas Pawar V. State of Maharashra 2008 (1) C.C. Cases (SC) 261 it was held by Hon'ble Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii)those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
7 In the present case, there are following circumstantial evidence against accused persons:
(i)The deceased Mottu was lastly seen in the company of accused persons.
(ii)The recovery of the weapon of offence i.e stone in SC No.04/10 3/16 4 pursuance of the disclosure statement.
8 Now, first of all, I am dealing with the last seen evidence. 9 In Gulshan V. State 2005(2) JCC 13 Hon'ble Delhi High Court has allowed the appeal while giving benefit of doubt to the appellant and set aside the conviction of sentence awarded by the ld. trial court. In that case, the appellant was charged with having committed the murder of one minor. There was no eye witness to the crime and the case rested upon circumstantial evidence. One of the circumstances against the appellant was that deceased Parvez was last seen by PW3 namely Kabir with the appellant. In that case, PW 3 Kabir had told the mother and grandmother of deceased Parvez that he had seen the deceased going on a rickshaw towards Brahmpuri near pulia on the relevant date alongwith appellant. In other words, it was in the knowledge of the mother and grandmother of the deceased that appellant/accused had taken the deceased with him in a rickshaw as told to them by PW3 Kabir but that fact was not mentioned by the mother of deceased to the police while lodging the missing report.
It was held by the Hon'ble High Court that in the natural and ordinary course of events, the mother of the deceased and the SC No.04/10 4/16 5 grandmother would certainly have disclosed the factum of the child having been last seen with the appellant/accused. This raises a doubt on the testimony of PW3 with regard to having last seen the deceased with the appellant/deceased.
10 In Mohd. Aizaz V. State 2007 (2) JCC 1142 also Hon'ble Delhi High Court has allowed the criminal appeal while setting aside the judgment of conviction dated 20.11.2000 and order on sentence dated 21.11.2000 passed by ld. Addl. Sessions Judge. The Hon'ble High Court has held that it would be highly dangerous to convict the appellant under Section 302 IPC for the murder of Kalu on the basis of deposition and material referred to. In that case also, deceased was last seen in the company of appellant and the dead body of deceased was recovered at the instance of the appellant. In that case, father of the deceased namely, Lal Chand, who made the report of missing of his child did not state the fact that the child was last seen in the company of the appellant. On the next day of the missing report, the FIR was recorded. On that day also, the fact that deceased was last seen in the company of appellant was also not brought to the forefront by the father of deceased. The Hon'ble High Court found the inconsistency in the deposition of witness regarding SC No.04/10 5/16 6 arrest and disclosure. The court came to the conclusion that it was highly dangerous to convict the appellant on the basis of last seen evidence and in the lack of material evidence.
11 In the present case, PW1 Raffi has lastly seen the deceased in the company of accused. He has deposed that he deals in of sale of cigarette, bidi and tobacco at the patri, by the side of the wall of Sport Club, Kaccha Bagh, Chandni Chowk. He is doing the said business for the last about 25 years. On 25.9.09, he (PW1) was sitting at his stall. On the said day at about 10.00 AM, four persons namely, Dasha, Etta, Salim and Mechanje came to his shop and purchased cigarette. They were talking that Motta had sold out the scrab (Kabbad) of their share and that he (Motta, the deceased)kept the money with him and was not giving money to them. The accused persons were further talking that they would teach Motta a lesson. On 25.9.09, itself at about 9.00 PM, he had seen all the above named four accused persons going inside Shanti Desai Sports Club Park. Thereafter, after some time accused Etta came outside the Park and took Motta alongwith him inside the Park. In the park, the accused persons and Motta were having heated conversation. Thereafter, he (PW1) went home. In the morning of 26.9.09, Motta was found dead and was lying dead in the Park. On seeing Motta dead, he (PW1)was sure that accused Dasha, Salim, Etta and Mechanje had killed SC No.04/10 6/16 7 Motta in the Park. PW1 has correctly identify accused Dasha @ Manoj and accused Salim present in court.
12 In crossexamination by ld. counsel for accused, PW1 has deposed that he never gave any statement to any court. His stall is 30 yards away from the police station. Police officials also purchase bidi, cigarette and tobacco from his stall, as such police officials know him very well. He has deposed that number of vagabonds, beggars and drug addicts are always present in the park in the day or night. He (PW1) opens his stall in the morning at about 7.30 AM and closes the shop in the evening at about 7.00 or 7.30 PM. He takes food at hotel. He had taken his dinner on 25.9.09 at Balimaran, which is at a distance of 2 KM from his stall. He went there at about 8.00 PM. It took about half an hour in taking the dinner. He came back from Balimaran after taking the dinner at 10.30 PM. He remained at Balimaran from 8.00 PM to 10.30 PM on 25.9.09. Etta and Mechanje were talking with each other about Motta. In the day hours Motta was not with these two persons. Salim and Manoj came at his stall at day hours when Etta and Mechanje had completed their conversation. Etta and Mechanje did not talk with Manoj and Salim at day hours in his presence. Salim had purchased bidi from his stall in day hours but at that time he did not talk with anybody. He has further deposed that his stall is just SC No.04/10 7/16 8 adjacent to the wall of sports club. Hardayal Library is just in front of his stall. There are two Barat Ghars. There were functions in the barat ghars. He has deposed that when there is a marriage function in the barat ghars, there is a lot of noise and one is unable to hear the voice of other persons, who is at a short distance. On the intervening night of 2526.9.09 there were marriage functions inside Barat Ghars and there were lot of noise. The police had called him in the police station and his statement was recorded. His statement was not read over to him by the police. His statement was recorded by the SHO. Outside the court SHO read over his statement to him. He is an illiterate. He cannot write and read anything except his name. Whatever he could understand from the statement read over to him by the SHO he has deposed in the court. He has denied that Salim and Manoj did not come at his shop in the day hours. He has denied that he did not hear any conversation in the day hours between the accused persons. He has denied that in the night he did not see the accused persons, while going inside the park. He has denied he did not hear the heated conversation in the night hours.
13 After going through the testimony of PW1, I am of the considered view that he is not trust worthy and reliable. He has deposed in examinationinchief that on 25.9.09, at about 9.00 PM he had seen all SC No.04/10 8/16 9 the accused persons namely, Dasha, Etta, Salim and Mechanje going inside Shanti Desai Sports Club Park. After some time, accused Etta came outside the park and took Motta alongwith him inside the park. But in crossexamination by ld. counsel for accused, he has deposed that he had taken food at hotel on 25.9.09 at Balimaran, which is at a distance of 2 Killometers from his stall. He went there at about 8.00 PM. It took half an hour in taking the dinner and he came back from Balimaran after taking the dinner at 10.30 PM. He remained at Balimaran from 8.00 PM to 10.30 PM on 25.9.09.
14 It is worth noting that no explanation has been furnished by PW1 as to how he could have seen the accused persons going inside Shanti Desai Sports Club Park at 9.00 PM when he was present at Balimaran from 8.00 PM to 10.00 PM, where he was taking his meal. Therefore, it cannot be believed that PW1 has lastly seen the deceased in the company of accused in the Park.
15 Further, PW1 has also deposed in his examinationinchief that on 25.09.09 at about 10.00 AM, accused persons namely, Dasha, Etta, Salim and Mechanje came to his shop and were talking that Motta had sold out the scrab (Kabad)of their share and kept the money with him . Since, the deceased Motta did not give the money to them, they would teach a lesson to Motta. But in crossexamination by ld. counsel for SC No.04/10 9/16 10 accused, PW1 has deposed that only accused Etta and Mechanje were talking with each other about Motta. Accused Salim and Manoj came to his stall when Etta and Mechanje had completed their conversation. Accused Etta and Mechanje did not talk with accused Manoj and Salim in his presence. He has further deposed that accused Salim had purchased Bidi from his stall but he did not talk with anybody. Thus, in view of the evidence of PW1 it cannot be said that there was prior meeting between accused persons and they shared common intention to commit the murder of deceased. 16 PW1 has further deposed that he deals in the sale of cigarette, bidi and tobacco at the patri by the side of the wall of Sports Club, Kaccha Bagh, Chandni Chowk. He is doing the said business for the last about 25 years. On 25.9.09 he was sitting at his stall. But PW4 Ct. Uday Veer, who had gone on the spot alongwith ASI Jagat Singh on receipt of DD No.6B Ex. PW5/A, has deposed that there is no shop or stall outside the gate of the club park. Moreover, PW2 Sat Narain has deposed in crossexamination that when he came at his duty at about 9.00 or 10.00 PM, the shops were closed. Nobody by the name of Raffi was there.
17 It is worth noting that PW1 has deposed in crossexamination by ld. counsel for accused that there are two Barat Ghars near his stall SC No.04/10 10/16 11 and whenever, there is a function at Barat Ghar, there is lot of noise and one can not hear the voice of other person. It is further worth noting that on the intervening night of 2526.9.09 there was marriage function inside the Barat Ghar and there was lot of noise. Since there was lot of noise in the Barat Ghar on account of the marriage function, the testimony of PW1 to the effect that he heard the heated conversation between accused and deceased Motta cannot be believed.
18 Moreover, PW1 has deposed in crossexamination that police has called him in the Police Station and his statement was recorded there. His signatures were obtained on his statement. His statement was not read over to him by the police. His statement was recorded by the IO. The statement of PW1 cannot be relied upon, as his statement was read over to him by SHO before his deposition. PW1 has clearly deposed in his crossexamination by ld. counsel for accused that outside the court, SHO read over his statement to him. He is illiterate. He cannot read and write and whatever he understood from the statement read over by the SHO, he deposed in the court. 19 In Ramvilas & Ors V. State of M.P. 1985 Crl. L. J. 1773 it was held by Hon'ble High Court of Madhya Pradesh that where the statement made by the witness to the police was narrated to him not SC No.04/10 11/16 12 when he was in the witnessbox but shortly before entering the witnessbox, the evidence of such witness would be inadmissible in view of S. 162 Cr.P.C, because the fact remains that it was narrated to him for the purpose of giving evidence at the trial. That tantamounts to making use of the statement at the trial which is prohibited by S. 162.
20 Since the testimony of PW1 is not free from doubts, it cannot be relied upon and the first circumstance against the accused persons that they were lastly seen in the company of deceased Motta. is not proved on record beyond reasonable doubt.
21 Now, I am coming to the second circumstance i.e recovery of weapon of offence (stone) in pursuance of disclosure statement. 22 PW21 Inspector P.S Chahal, who is the second IO of the case has deposed that on 5.10.09, the investigation of the case was handed over to him. On 24.10.09 he alongwith SI Vimal Kumar (PW20), ASI Jagat Singh (PW5), HC Balender (PW6) dropped by Ld. Addl. Public Prosecutor on 17.6.10 and Ct. Mukesh had gone to Chhata Rail Chowk in connection with the investigation of the case. At about 10.00 PM, he received a secret information that two boys, who had committed the murder are present at Jamuna Bazar near Iron Bridge On the said information, he asked the passersby to join the investigation after SC No.04/10 12/16 13 disclosing the facts of the case to them, but none of them agreed and went away after giving reasonable excuses. Thereafter, they reached at Jamuna Bazar, near Iron Bridge, where the informer pointed out towards two boys and he apprehended them. The names of the boys were revealed after enquiry as Manoj @ Dasna and Mohd. Salim @ Imamuddin. Both accused are present in court. He arrested both accused persons vide arrest memos Ex. PW5/D and Ex. PW5/F respectively. He conducted the personal search of accused persons vide memo Ex. PW5/E and Ex. PW5/G. He recorded the disclosure statement of both accused Ex. PW5/H and Ex. PW5/J respectively. Both accused persons were got medically examined and they were put in the lockup. 23 He has further deposed that on 25.10.09, he took out both accused persons from the lock up. In pursuance to their disclosure statements he took them to the spot. Accused pointed out the place of occurrence vide memos Ex. PW5/K & Ex. PW5/L. Thereafter, accused Salim pointed out the place, near gate No.1 of Metro Station and got recovered a heavy piece of stone, which was used in the commission of offence. The stone was stained with blood. He called the private photographer Deepak Mathur, who took the photographs vide Ex. PW3/A2 to Ex. PW3/A4 & Ex. PW3/A17. The said stone was seized vide seizure memo Ex. PW5/M. He prepared the site plan of the place of SC No.04/10 13/16 14 recovery of stone vide Ex. PW21/A. He recorded the statement of photographer Deepak Mathur.
24 Thus, as per the testimony of PW21 the piece of stone was recovered on the pointing out of accused Mohd. Salim. In the present case, Deepak Mathur, who has taken the Photographs has been examined by the prosecution as PW3. He has deposed that on 25.10.09, IO of the case had called him in the Shanti Desai Sports Club Park. Accused present in court was present there with the police. On the direction of IO he had taken the photographs of accused alongwith a police official, while he was pointing out towards stone lying in the bushes. The photographs are Ex. PW3/A15 and Ex. PW3/A16. He had also taken the photographs of the stone, which was pointed out by the accused. Said photograph is Ex. PW3/A17.
25 In crossexamination by ld. counsel for accused PW3 has deposed that on 25.10.09 he was taken alongwith the accused persons to the place where the stone was lying. He went to the place i.e Gate No.1 Metro Station, Chandni Chowk alongwith ASI Jagat and SI Vimal. Both the police officials showed him the place where the stone was lying and asked to take the photograph. He has further deposed that when he was taking the photograph, one constable came to the place, where the stone was lying, alongwith accused SC No.04/10 14/16 15 and asked him to take the photograph. When he reached the spot, where the stone was lying the, police officials were aware about the place where the stone was lying.
26 After going through the testimony of PW3 Deepak Mathur, it become crystal clear that the place where the weapon of offence i.e piece of stone has allegedly been recovered was already shown to PW3 by ASI Jagat Singh (PW5), SI Vimal (PW20) and when PW3 was taking the photographs of the stone one constable came there alongwith accused and he (PW3) was asked to take the photograph of the stone. The police officials were already aware of the place, where the stone was lying. In view of the evidence of PW3 it cannot be said that the weapon of offence namely, piece of stone has been recovered at the pointing out of accused Mohd. Salim in pursuance to his disclosure statement. 27 After going through the material on record, I am of the considered view that the prosecution has miserably failed to fulfill the tests as are laid down by the Hon'ble Supreme Court in Arun Bhanudas's case, referred above. Both the circumstances discussed above, against the accused persons are not cogently and firmly established in the present case. Both the circumstances, taken cumulatively are not forming a complete chain to conclude that the murder has been committed by both the accused. The circumstantial evidence, in the SC No.04/10 15/16 16 present case, is not consistent with the guilt of the accused but is consistent with their innocence.
28 In view of above discussion, I am of the considered view that prosecution has been miserably failed to prove its case beyond reasonable doubt that on the intervening night of 2526/9.09, at Shanti Desai Sports Park, Kaccha Bagh, Chandani Chowk both the accused in furtherance of their common intention with coaccused Rahul Yadav @ Etta (facing trial in Juvenile Justice Board) and coaccused Maikanji (not arrested) committed the murder of Motta. Accordingly, accused Manoj @ Dasha and Mohd. Saleem are acquitted of the offence they were charged with. Both Accused are in JC in the case. They be released immediately, if not wanted in any other case.
File be consigned to Record Room.
Announced in open court today on (Smt. Bimla Kumari) 10.1.2011 Addl. Sessions Judge (North):Delhi SC No.04/10 16/16