Delhi District Court
State vs Bal Kishan @ Nathu on 17 October, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.15/10
FIR No. 381/09
U/s 302/34 IPC
PS New Delhi Railway Station
In the matter of:
State
Versus
1. Bal Kishan @ Nathu,
S/o Bal Mahak,
R/o Purani Khata Kheri,
Saharanpur, U.P.
2. Gunjesh @ Gabbar,
S/o Sh. Ram Narain,
R/o Vill. Satwan Bazar,
PS Baniyapur,
Distt. Chhapra, Bihar.
3. Mahinder @ Ganja,
S/o Sh. Sat Narain,
R/o Vill. Hasanpur,
PS Sultanpur, Distt. Fatehpur (U.P.).
4. Sonu,
S/o Sh. Rajesh,
R/o H.No.5463, Malka Ganj,
New Chandrawal, Delhi. .......Accused Persons
FIR No.381/09 1
Date of institution : 13.04.2010
Date of Judgment : 17.10.2012
J U D G M E N T
Charge in Brief Bal Kishan @ Nathu, Gunjesh @ Gabbar, Mahinder @ Ganja, Sonu, accused persons have been facing trial for an offence U/s 302 read with Sec.34 IPC on the prosecution allegation that on 20.12.09 at 9.15 p.m. at platform No. 89, New Delhi Railway Station, Delhi, all of them, in furtherance of their common intention, committed murder of Shankar Bihari.
Facts in Brief
2. Case came to be registered on the night intervening 20/21.12.09 at about 1.10 a.m. on the basis of rukka, sent by Inspector Anil Jaitley, SHO PS NDRS from Lady Hardinge Medical College & SSK Hospital.
3. It is case of prosecution that at DD no.18A was recorded at PS NDRS on information provided by Duty Constable Ranbir Singh from LHMC Hospital that an unknown person, aged 25 years, had been brought to hospital by one Mohd. Mustaq and he had been declared 'brought dead'.
On receipt of this information, SI Sohan Lal accompanied by Ct. Nemi reached the hospital and verified that the aforesaid person brought to the hospital and medically examined vide MLC NO.22080/09 had been declared brought dead. The SubInspector asked for communication of this information to the SHO as it appeared to be case of murder.
FIR No.381/09 2
It is case of the prosecution that Inspector Anil Jaitley received DD no. 19A dt.20.12.09 at 11.30 p.m. that a dead body had been brought to LHMC Hospital.
On reaching the hospital Inspector Anil Jaitley found that as per MLC, the aforesaid person had been declared 'brought dead' and further that the said person was brought to the hospital by Mohd. Mustaq S/o Mohd. Mohsin, R/o 53/8, Street No.19, Chauhan Bangar, Seelampur, Delhi. Neither Mohd. Mustaq nor any eye witness was available to the Inspector at the hospital.
It is case of the prosecution that after despatch of rukka from the hospital, Inspector Anil Jaitly reached Chauhan Bangar, Seelampur in search of aforesaid Mohd. Mushtaq, a rickshaw puller, who had brought the dead body to the hospital but he could not be found in that area and the Inspector then returned to the hospital.
Inspector Anil Jaitley then reached New Delhi Railway Station and found Mohd. Mushtaq present in front of the said railway station, towards Paharganj side. The Inspector recorded his statement At about 8.00 p.m., the Inspector accompanied by his staff reached platform no.8 of New Delhi Railway Station. There Pradeep Kashmira and Rajinder @ Anna were found present. Inspector made queries from both of them. Both Pradeep Kashmira and Rajinder @ Anna took the police party to Pole No.2012, in the vicinity of Carriage Coaching Centre Office towards Delhi end side of NDRS. On their pointing out, the Inspector prepared rough site plan of that place as occurrence is alleged to have taken place there. FIR No.381/09 3
During spot inspection, the Inspector collected blood lying on the ground, one broken piece of glass, blood stained earth, earth control and two buttons which were sealed and seized Mobile crime team was called Crime team, reached near Pole No.3064 and 3017, NDRS, platform no.8 & 9 towards Pacca Pul , opposite temple and inspected the site. On inspection SI Rupesh, Incharge of Crime Team found blood stains and button lying there. Ct. Dinesh Kumar took snaps. He then prepared photographs SI Rupesh prepared crime team report.
On 24.12.09 Inspector Anil Jaitley and his staff left police station at 6.10 a.m. for investigation and reached Ajmere Gate of NDRS. There Rajinder was found present. He was joined investigation. Rajinder took the Inspector and his staff near Jhinjhar Hotel where Bal Kishan and Gunjesh were found present. Both of them were arrested. They made disclosure statements.
Accused Gunjesh is alleged to have led the police party towards Sadar side. From the bushes at a distance of 200 feet from pacca bridge, he got recovered one polythene containing clothes which he was wearing at the line of occurrence. These clothes found stained with blood were turned into parcel, sealed and seized. Then he led the police party to a place, at a distance of 100 ft. from pacca pul, and got recovered one knife stained with blood. It was also turned into a parcel, sealed and seized.
On 29.12.2009 Inspector Anil Jaitley reached mortuary of LHMC Hospital, carried out inquest proceedings and was got the dead body of Shanker Bihari subjected to autopsy. On 29.12.2009, Dr. Devender conducted autopsy FIR No.381/09 4 on the dead body and prepared report. The doctor handed over to the Inspector sample of blood of the deceased, sealed with the seal of hospital and also impression of the said seal which were seized. Unclaimed dead body was then got cremated at State expenses On 14.01.2010 Inspector Anil Jaitley left the police station alongwith staff vide DD no.7A and reached platform no.16 of NDRS where PW Rajinder met them. On reaching platform no.16 of NDRS the aforesaid party found accused Mahinder present there. He was apprehended at the pointing out of Rajinder.
On 05.02.2010 at about 4.00 p.m. Inspector Inspector Pramodni Minz received information from PW Pradeep @ Kashmira regarding presence of accused Sonu at platform no.16 towards Nizamuddin Railway Station. Accompanied Inspector Anuj Nautiyal, the Inspector reached there. At the instance of Pradeep @ Kashmira, Sonu accused was found present. He was arrested.
On 11.02.2010, Ct. Vinod collected 10 sealed parcels from MHCM vide RC no.11/21 and deposited the same at FSL with seals intact. Results were received from FSL.
During investigation, SI Mahesh Kumar inspected the spot on 10.03.2010, took rough notes and ultimately prepared scaled site plan. On completion of investigation, challan was put in court.
Compliance with provisions of Section 207 CrPC Copies of documents relied upon by the prosecution were supplied to the accused free of costs U/s 207 Cr.P.C. The case came to be committed to Hon'ble FIR No.381/09 5 Court of Session.
Charge
4. Prima facie case having been made out, charge for an offence U/s 302 read with Sec.34 of IPC was framed against the accused persons on 08.02.2011, to which they pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 19 witnesses: PW1 Ct. Dinesh Kumar Member of Mobile Crime Team who visited the spot i.e PF No. 89 of NDRS on 21.12.2009 prepared photographs Ex PW 1/A1 to 17 from negative Ex PW1/B1 to 17. PW2 SI Rupesh Incharge of Mobile Crime Team.
PW3 Ct. Ravinder Incharge of dog squad who could not find any clue about any suspect.
PW4 ASI Arvind Yadav To state that no fingerprint could be developed from the spot.
PW5 Dr. Devender, Sr. Resident To prove autopsy on the dead body of the Shanker Bihari PW6 HC Satbir Singh, Duty Officer To prove DD No. 18 Ex PW6/A, DD No. 19A Ex PW6/B, recording of FIR Ex PW6/D and DD No. 3A Ex PW6/F. PW7 Ct. Chander Bhan To prove recording of FIR Ex PW6/D on the dictation of the Duty Officer HC Satbir PW8 HC Sunil To prove DD entry Ex PW8/A regarding departure of Inspector Anil Jaitely from the PS in the company of two others by government vehicle.
PW9 HC Vijay Who participated in the investigation. FIR No.381/09 6
PW10 HC Davis V. J. Concerned MHC(M)
PW 11 Mr. Rajender Alleged eye witness to occurrence.
PW 12 Dr. Kiran, Medical Officer, To state on medical evidence LHMC & SSK Hospital PW 13 Dr. H. R. Singh, Chief To state of medical evidence. Medical Officer PW 14 Mohd. Maksood @ Mushtaq Who brought the injured to hospital and got him admitted there.
PW 15 HC Ram Kumar Concerned MHC(M)
PW 16 SI Mahesh Kumar Who prepared scaled site plan
PW 17 Ct. Vinod Kumar Who took material objects to FSL
PW 18 HC Harpal Singh Witness to arrest and recovery
PW 19 Inspector Pramodni Minz Who arrested Sonu accused.
PW 20 Pardeep @ Kashmera Alleged eye witness to the occurrence.
PW 21 Ct. Balraj Witness to arrest and recovery.
PW 22 Ct. Mohd. Asif Who participated in investigation.
PW 23 HC Jagdish Prasad Witness to arrest and recovery.
PW 24 SI Sohan Lal Who partly investigated the case.
PW 25 SI Anuj Nautiyal Who partly investigated the case.
PW 26 Inspector Anil Jaitely Investigation officer of the case.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances regarding recovery, appearing in evidence against them and claimed false implication.
However, they have not led any evidence in defence.
7. Arguments heard. File perused.
8. Learned Addl. PP has contended that from the evidence led by the prosecution it stands proved that all the accused persons inflicted injuries on the FIR No.381/09 7 person of Shanker Bihari and as such case against them stands fully proved.
On the other hand, Learned Amicus Curiae for the accused persons have submitted that PW Rajinder and Pardeep @ Kashmera have not supported the case of prosecution. Further it has been submitted that the prosecution version regarding arrest of the accused persons on the given date, time and place is based only on the statements of police officials and that when PWs Rajinder and Pardeep@ Kashmera have not supported their version, it becomes doubtful if they were so arrested or that Bal Kishan and Gunjesh got discovered any incriminating material. Nothing incriminating was recovered from Mahinder and Sonu accused. Therefore, the contention is that prosecution has failed to substantiate charge levelled against them and all of them are entitled to acquittal.
Discussion Medical Evidence
9. Medical evidence is available in the statement of PW13 Dr. H.R. Singh, who has proved MLC Ex.PW13/A prepared by Dr. Parveen Kumar. As per statement of doctor witness and MLC Ex.PW13/A, the injured brought to the hospital on 20.12.09 was declared 'brought dead'.
Then there is statement of PW5 Dr. Devender of LHMC Hospital, who conducted autopsy on the dead body of Shankar Bihari on 29.12.09. According to doctor, upon examination there were six external injuries on the body as detailed in the postmortem report Ex.PW5/A at page no.3, specified for external injuries. As per observation made by the doctor, the cause of death was shock as FIR No.381/09 8 a result of stab injury to the heart, indicated in the report as external injury no.4. All the injuries were antemortem in nature, fresh in duration and injury no.4 and associated injuries were sufficient to cause death in ordinary course of nature. Time since death was about 9 days. The postmortem examination report Ex.PW5/A. From the medical evidence, it stands established that Shankar Bihari suffered injuries on 20.12.09; that when he was brought to the hospital, he was declared brought dead and on autopsy, injury no.4 and associated injuries observed on the dead body were found sufficient to cause death. It also stands established that Shankar died 9 days before the autopsy on the dead body.
Then question arises as to what led to death of Shanker Bihari and who caused it?
PW14
10. Mohd. Maqsood @ Mushtaq PW14 has been examined to prove that on 20.12.09 at 9.45 p.m., he was present near the gate of Paharganj, New Delhi Railway Station, with his rickshaw, where two persons brought one injured and asked him to take the injured to hospital. Thereupon, he took the injured to hospital in his rickshaw and that the doctor declared him brought dead. However, there is nothing in the statement of this witness to suggest as to who were the two persons who asked him to take injured to hospital. It is not in his statement that PWs Rajinder or Pardeep had so asked him to take the injured to the hospital.
FIR No.381/09 9
Testimony of alleged eye witnesses
11. As per prosecution version, main stay of prosecution was on the statement of PW11 Rajinder and PW20 Pardeep.
PW11 While appearing in court as PW11 Sh. Rajinder has deposed that in the year 2009, he was doing the job of labour at New Delhi Railway Station. He also used to sleep under the bridge of platforms no.8 & 9.
As regards the occurrence, PW11 Rajinder stated that on20.12.09 at about 9.15 p.m., he was present under the bridge of platforms no.8 & 9 with one Kashmira. At that time, he saw that one person had been caught hold of by four persons. Said person was crying. He was having stab injuries on his body. Bal Kishan @ Nathu, Gunjesh @ Gabbar, Mahinder @ Ganja, Sonu ran towards Sadar Bazar Railway Station.
Further, according to the witness, he removed the injured to LHMC Hospital in a rickshaw. Said boy died in the hospital. However, according to the witness, while the injured was being shifted to the hospital, he revealed names of the assailants as Nathu, Gunjesh, Ganja, Sonu. Further, according to this witness, he (the witness) did not know any of these four persons personally. He volunteered that Kashmira knew their names.
Learned defence counsel has rightly pointed out that latter part of examination of chief of this witness, wherein he stated that he had not gone to the hospital and rather it was Kashmira who accompanied the injured to hospital. In view of this statement made by the witness, it can safely be said that he has FIR No.381/09 10 made contradictory statement on the point as to who removed the said injured to the said hospital.
As noticed above, initially, he stated that it is he who removed the injured to the hospital in a cycle rickshaw, but ultimately stated that it is Kashmira, who removed the injured to the hospital in a cycle rickshaw.
When we advert to the statement of PW20 Pardeep, it would transpire that he has also supported the case of prosecution in this regard. When questioned on the point as to who had removed Shankar Bihari to Hospital, PW Pardeep denied to shifted the injured to Hospital. In this way, PW20 has made statement in contradiction with the statement of PW11 Rajinder that it is he who had removed the injured to the Hospital.
12. PW11 Rajinder was put leading questions by learned Addl. P.P. after seeking permission from the court. He denied to have seen Bal Kishan @ Nathu, Gunjesh @ Gabbar, Mahinder @ Ganja, Sonu, inflicted injuries on the person of Shankar Bihari. The witness rather volunteered to have reached near the injured after the assailants had left. He categorically denied to have stated before the police that he had seen Bal Kishan @ Nathu, Mahinder @ Ganja, Sonu, having caught hold of Shankar Bihari or that Gunjesh @ Gabbar gave blows on his abdomen or on his face.
The witness also denied to have made any statement before the police. He further denied that he was deliberately not identifying the accused or that he had been won over by the accused. In his cross examination, PW11 could not tell as to what was recorded by the police in his statement or as to what was reduced FIR No.381/09 11 into writing by the police when inquiries were made from him. Then, he stated in his cross examination that all the facts were told to him by Kashmira.
PW20 PW20 Pardeep @ Kashmira other witness to occurrence displayed ignorance about PW11 Rajinder and at the same time stated that he came to know about PW Rajinder as he was also taken to the police station by the police. He further stated to have come to know about the name of the deceased - Shankar Bihari from the police.
As regards the assailants the witness displayed ignorance. He also displayed ignorance as to in which manner Shankar Bihari had suffered injury. As regards the assailants (present in court), the witness displayed ignorance.
The witness was put leading questions but nothing useful to the prosecution could be elicited from him. The witness denied to have made any statement before the police. He denied that he used to sleep at platform of NDRS. He further denied if Rajinder used to do job of labour at NDRS. The witness denied to have stated before the police that on 20.12.09 at about 9.15 p.m., he had gone to toilet on the platform. He further denied to have state before police that Bal Kishan @ Nathu, Gunjesh @ Gabbar, Mahinder @ Ganja, Sonu, were known to him or that they alongwith another had caught hold of Shankar Bihari or that Gabbar had inflicted injury with knife blows on the face and chest of Shankar Bihari. He also denied to have raised alarm or that thereupon accused fled away.
The witness further denied that when he reached near Shankar, he was FIR No.381/09 12 informed that he was inflicted injuries as the accused persons were going to take his amount. He also contradicted statement of PW Rajinder to have gained knowledge about names of the assailants. As regards his statement made before the police, when questioned, the witness denied to have made any statement. He volunteered that police recorded the statement of its own without making any inquiries from him.
From the above statements of PW11 and PW20, this court finds that none of them has supported the case of prosecution on the point of having witnessed the occurrence, or identity of the accused persons or having made statements before the police.
Circumstantial Evidence.
Motive
13. It is significant to note that prosecution has not brought on record even an iota of evidence as to any motive with any of the accused against Shanker Bihar for causing him injuries resulting in his death. Absence of motive gains significance when PW11 and PW20 have not supported the case of the prosecution at all.
PW1 This witness was member of the mobile crime team which reached the spot i.e. Platform no. 89 of NDRS of 21.12.2009 and took snaps. Photograph prepared by him are Ex PW1/A1 to 17 and negatives are Ex PW1/B1 to 17. There is nothing in the statement of this witness to suggest that any fact regarding identity of any of the accused came to his notice at the time of FIR No.381/09 13 inspection.
PW2 SI Rupesh was heading the Mobile Crime Team which reached the spot. According to the witness, at the time of spot inspection, blood stains and button were found lying there. The witness proved his report Ex PW2/A. According to the witness, he inspected the spot from 11.30 am to 12.30 pm. A perusal of report Ex PW2/A prepared by this witness would reveal that blood stain and button of shirt were lying at the spot but number of buttons does not find mention in the report. There is no evidence to suggest as to whom the buttom pertains.
PW3 It is in the statement of PW3 Ct. Ravinder, Incharge of the Dog Squad who reached the spot alongwith sniffer dogs at New Delhi Railway Station that he could not find any clue about any suspect. So statement of PW3 also does not come to the aid of the prosecution to connect any of the accused with commission of crime.
PW4 PW4 ASI Arvind Yadav, Fingerprint expert also inspected the spot on being called by Investigating Officer but no finger print could be developed from the spot, as stated by him.
Arrest and recoveries
14. It is case of prosecution that at the time of pointing out of PW Rajinder @ Anna, police apprehended Bal Kishan @ Nattu and Gunjeesh @ Gabbar accused FIR No.381/09 14 on 24.12.2009 and accordingly they were arrested. In this regard, prosecution case is based on the statements of PW23 Inspector Anil Jaitely, PW18 HC Harpal Singh, PW4 Ct. Balraj and PW23 HC Jagdish Prasad Meena.
According to PW26 Inspector Anil Jaitely, on 24.12.2009 at 6.10 am, he accompanied by his staff left the police station. They reached Ajmere Gate side where PW Rajinder met them. Thereafter, all of the reached near Jhinjhar hospital where they found Bal Kishan and Gunjesh accused sitting on a heap of garbage. As a result, both of them were arrested at the pointing out of PW Rajinder.
However, when we advert to the statement of PW11 Rajinder, it would transpire that he did not state about any such fact. So, case of prosecution regarding arrest of Bal Kishan and Gunjesh accused on the given date, time and place does not find support from the statement of PW11.
As noticed above, PW11 displayed ignorance about the accused persons. He did not identify them as the assailants. He specifically denied to have seen Bal Kishan, Gunjesh, Mahinder and Sonu inflicting injuries or running away. Surprisingly when PW11 was put leading questions by learned Addl. PP, he was not put any question regarding arrest of Bal Kishan and Gunjesh accused at his pointing out on 24.12.2009 from near Jhinjhar hospital. The fact remains that prosecution version narrated by the police official (PW18, PW21, PW23 and PW26) does not find corroboration from independent witness Rajinder. So, it becomes doubtful if these two accused persons were arrested on the given date in the manner narrated by PWs.
FIR No.381/09 15
It is case of prosecution that after their arrest, Bal Kishan and Gunjesh made disclosure statements Ex PW18/E and F. Further according to PW26 Inspector Anil Jaitely, Bal Kishan accused then led the police party to Sadar Bazar side and got recovered one razor, which was turned into a parcel, sealed and seized.
A perusal of disclosure statement Ex PW18/E would reveal that it does not bear attestation of PW Rajinder. It bears attestation only of HC Harpal, HC Jagdish and Ct. Balraj Singh. Similarly, recovery memo Ex PW18/B regarding recovery of razor also does not bear attestation of PW Rajinder. When PW Rajinder is alleged to have accompanied the party and got the accused arrested, it remained unexplained as to why Inspector Anil Jaitely did not obtain attestation of this independent witness.
Nonattestation of the disclosure statement Ex PW18/E and recovery memo Ex PW18/J, creates doubt if any such disclosure statement was made and any such recovery was got made by the Bal Kishan accused from the said place.
Further, it is case of the prosecution that Gunjesh accused in pursuance of his disclosure statement got recovered one polythene containing clothes which he was wearing at the time of occurrence. These were got recovered from bushes at a distance of 200 feet. These were turned into a parcel, sealed and seized.
A perusal of disclosure statement Ex PW18/F would reveal that it does not bear attestation of PW Rajinder. Similarly, recovery memo Ex PW18/M prepared in proof of recovery of the clothes also does not bear attestation of PW FIR No.381/09 16 Rajinder. Nonattestation of disclosure statement Ex PW18/F and recovery memo Ex PW18/M creates doubt if any such disclosure statement was made and any such recovery was got made by Gunjesh accused from the said place.
Further, it is case of the prosecution thereafter accused Gunjesh led police party to bushes at a distance of 100 feet from the pucca bridge and got recovered and knife stained with blood. According to PW26 Inspector Anil Jaitely, this knife was turned into parcel, sealed and then seized vide memo Ex PW18/L. A perusal of recovery memo Ex PW18/L would reveal that it bears attestation only of HC Harpal Singh, HC Jagdish Prasad and Ct. Balraj. It does not bear attestation of any independent witness.
Nonattestation of recovery memo Ex PW18/L by independent witness, PW Rajinder creates doubt if any such disclosure statement was made and any such recovery was got effected by the Gujesh accused from the said place.
In view of the above discussion, as rightly submitted by learned defence counsel, no reliance can be placed on the reports of the expert regarding analysis of these weapons i.e. knife & razor, and clothes so as to connect Gunjesh and Bal Kishan accused with commission of the present crime.
Arrest of Sonu accused
15. It is case of the prosecution that Sonu accused was arrested on 05.02.2010 in presence of PW2 Pardeep Kumar. In this regard, prosecution has examined PW19 Inspector Pramod Minz and PW25 SI Anuj Nautiyal.
It may be mentioned here that although as per statements of PW19 and PW25, Sonu accused was arrested at the pointing out of PW20 Pardeep @ FIR No.381/09 17 Kashmera, the latter has not supported the prosecution version in this regard. While appearing in Court as PW20 Pardeep @ Kashmera nowhere stated that on 05.02.2010, he accompanied police party headed by Inspector Promod Minz or that it at his instance that Sonu accused was apprehended. Therefore, it becomes doubtful if Sonu accused was apprehended on 05.02.2010 by Inspector Pramod Minz at the instance of Pardeep @ Kashmera.
Arrest of Mahinder accused
16. It is case of the prosecution that Mahinder accused was apprehended on 14.01.2011 by the police party headed by Inspector Anil Jaitely from platform no. 6 of the New Delhi Railway Station, at the pointing out of PW Rajinder. However, it is significant to note that while appearing in Court as PW11 Rajinder nowhere stated about arrest of Mahinder accused in his presence or at his instance on 14.01.2011. Surprisingly when PW11 was put leading questions by Addl. PP after seeking permission from the Court, he was not put even any suggestion on this version of the prosecution regarding apprehension of Mahinder accused. Therefore, it becomes doubtful if Mahinder accused was so apprehended on 14.01.2011.
Conclusion
17. In view of the above discussion, this Court finds that when two independent witnesses PW Rajinder and PW Pradeep @ Kashmera have not supported the case or raised any accusing finger towards any of the accused and the prosecution has failed to establish beyond doubt recoveries from accused Bal Kishan and Gunjesh accused on the given dates and nothing incriminating was FIR No.381/09 18 recovered from other two accused Mahinder and Sonu, this Court finds that prosecution has miserably failed to bring home charge against any of the accused persons. Accordingly, all of them are acquitted of the charge framed against them, while extending to them benefit of doubt.
Case property be confiscated to the State and then disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 17.10.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No.381/09 19