Delhi District Court
State vs . Keshav Kakad on 6 June, 2017
1 IN THE COURT OF SH. NARINDER KUMAR SPECIAL JUDGDE, NDPS02 (CENTRAL) TIS HAZARI COURTS:DELHI Case No. 27727/16 SC No. 22/16 FIR No. 834/15 PS Prasad Nagar u/s 302/304/387/324/506/436 IPC In the matter of: State Versus Keshav Kakad S/o Sh.Narayan Dass Kakad R/o H.No. 16/1154E, Tank Road, Gali No.2, Karol Bagh, Delhi. .....Accused Date of institution : 25.02.2016 Date of Judgment : 06.06.2017 JUDGMENT
Keshav Kakad (accused) has been facing trial for offences u/s 302, 304, 387, 324, 506 and 436 IPC.
Accusation levelled against the accused is that on State vs. Keshav Kakad 2 27.10.2015, at about 6:20 p.m, he set on fire Rakesh and Smt.Mathura Devi, on the upper floor of house No.16/945, 47 BK E, Bapa Nagar, Delhi.
Another allegation levelled against him is that he committed the offence for extortion by putting aforesaid Rakesh Kumar and his brothers Suresh and Anand Kumar in fear of death and thereby, induced them to deliver money.
Accused is also alleged to have caused hurt to Anand Kumar and Suresh Kumar and also have criminally intimidated them.
By setting on fire shop of Anand Kumar, Rakesh and Suresh Kumar, using explosive substance i.e. petrol, accused is also alleged to have caused mischief.
2. Case of the prosecution is that on 27.10.15 at about 6:24 pm, police of Police Station Prasad Nagar received information that the shop of informant had been set on fire. Informant so informed from mobile phone no.8373959684. On the basis of this information communicated by the PCR, DD entry no.28 A was recorded. SI Abhishek reached the spot and found that fire brigade had arrived at the place where shops were on fire.Four State vs. Keshav Kakad 3 persons injured there were shifted to hospital.
From DD No.40A, the SI came to know that three vicitims Rakesh, Suresh Kumar and Anand Kumar had been got admitted at BLK Hospital. Leaving other staff at the shop, SI reached the hospital in the company of SI Rakesh and collected MLCs of the injured persons from there. None of the injured was in a position to make statement.
The SI again received another DD No.43A which revealed that Smt.Mathura Devi, another victim had been brought to RML hospital and declared dead. So, he accompanied by Ct.Rakesh reached RML hospital and from there collected MLC of Smt.Mathura Devi.
From RML Hospital, the SI reached the spot. No eye witness was available there. So, he appended rukka to DD No.28A and got this case registered.
3. During investigation, crime team was called to the spot which inspected it and prepared its report. The SI also prepared rough site plan of the place of occurrence.
Case of the prosecution is that on the night intervening 2728.10.2015, SI Brij Pal went to BLK hospital and made enquiries State vs. Keshav Kakad 4 from Suresh and Anand wherein they are alleged to have orally levelled allegations against the accused. SI Brij Pal did not record their statements.
On reaching mortunary, SI Abhishek collected the dead body of Smt.Mathura Devi and got the dead body subjected to autopsy at Maulana Azad Medical College.
After that SI Abhishek accompanied by team of CFSL visited the spot. During spot inspection, he seized material objects from there, including one country made pistol, in burnt condition. It was seized vide memo Ex.PW16/D. Thereafter, SI Abhishek visited RML hospital where PW Rakesh was lying admitted after referral from BLK hospital. He recorded statements of Suresh and Anand Kumar whereas Rakesh was unfit to make statement.
Case of the prosecution is that Gopal Upadhyay, another injured was got admitted at LHMC hospital. SI Abhishek reached the hospital and recorded his statement too.
On 30.10.15, SI Abhishek searched for the accused. During search, secret informer told him that said accused was in Andheri Mumbai West along with his girl friend. SI Abhishek again accompanied by Ct.Krishan Pal on same day reached at 16/947, E State vs. Keshav Kakad 5 Block, Tank Road where owner of the property Sh.Kishosre Kumar met them and produced DVR of the CCTV camera along with one pendrive containing footage of incident of fire which took place at 16/945947, Tankl Road, Bapa Nagar, Delhi. The SI seized the said DVR and pendrive.
On 31.10.15, the SI came to know that accused was at Sankalp Siddhi Cooperative Society, Versoa, Andheri West Mumbai. He apprised the SHO about it and left for Mumbai. SI Abhishek took help of local police official from Crime Branch Unit 8, Mumbai and reached Sankalp Siddhi Cooperative Society, Versoa, Andheri West Mumbai where accused was found present. SI Abhishek brought the accused from the society to the office Crime Branch Unit8. The SI made enquiries from the accused and arrested him and got subjected him to personal search. Then, accused was produced before Ilaqa Magistrate and his custody was obtained by way of transit remand for 4 days and that is how, he was brought to Delhi and produced before concerned Metropolitan Magistrate.
Rakesh injured died. Consequent upon his death, the offence was converted to Section 302 IPC and investigation was assigned to Inspector Pushp Lata. During investigation above State vs. Keshav Kakad 6 referred to, DVR is said to have been sent to FSL for analysis. Report was then collected from FSL.
4. On compeletion of investigation, challan was put in court. After complaince with provisions of Section 207 Cr.P.C, case came to be committed to Court of Session.
5. Prima facie case having been made out, charge for offences u/s 302, 304, 387, 324, 506 & 436 IPC was framed against the accused on 10.03.2016. Since the accused pleaded "not guilty" and claimed trial, prosecution was called upon to lead evidence. In order to prove its case, prosecution has examined only following witnesses: PW1 : HC Udayyan Rana PW2 : Dr.Pradeep Kulal R. PW3 : Dr.Mohit Chauhan PW4 : Dr.Monika Tanwar PW5 : Dr.Kamlesh Kumar PW6 : Dr.Harprit Singh PW7 : Dr.Rajesh Kumar Saha PW8 : ASI Bhuwan Chand PW9 : Sh. Roop Singh State vs. Keshav Kakad 7 PW10: Police Naik Parvin Bhiwa Agawane PW11: Police Naik Ravindra Hanumant Mane PW12: Sh. Anand Kumar PW13: Sh. Suresh Kumar PW14: Sh. Parveen Kumar PW15: Sh.Gopal Upadhayay PW16: SI Abhishek Kumar PW17: Sh.Prayank Nayak, Metropolitan Magistrate
6. Arguments heard. File perused.
7. As noticed above, occurrence is alleged to have taken place on 27.10.15, at about 6:20 pm on the ground floor of H.No.16/945,47, BKE, Bapa Nagar, Delhi. Police came into action on recording of DD No.28A dted 27.10.15, recorded at 6:24 pm on the basis of information received from Duty Officer by way of PCR call that the shop of the caller was on fire. The caller provided the aforesaid number of the shop. This DD entry came to be assigned to SI Abhishek Kumar and thereupon, the SI accompanied by Ct.Rakesh reached the spot.
According to PW16 SI Abhishek Kumar on having State vs. Keshav Kakad 8 reached the spot, he found that aforesaid shops were on fire at the given place on Tank Road and fire brigade had reached there. Vide DD No.40A, he came to know that three victims Rakesh, Suresh and Anand Kumar had been got admitted in BLK Hospital. He left Ct.Rakesh at the hospital and himself reached the hospital and from there collected their MLCs. But none of these three victims was in a position to make statement and rather Anand Kumar and Suresh were found busy in medical treatment of their elder brother Rakesh Kumar.
SI Abhishek then received DD No.43A and came to know that Smt.Mathura Devianother injured had been brought dead at RML hospital. So he rushed to RML hospital and collected MLC of Smt.Mathura Devi. Thereafter, he returned to the spot. No eye witness was found present there. So, he appended rukka Ex.PW16/A to DD No.28A and got this case registered.
From the above evidence, it transpires that up to the registration of the case on 27.10.15, no one raised any accusing finger against any person what to say of involvement State vs. Keshav Kakad 9 of the accused.
8. Case of the prosecution is that crime team reached the spot, inspected it and prepared report.
9. PW15 Gopal Upadhyay had also suffered injuries in the incident and he was got admitted at LHMC hospital. Having come to know of his admission at the said hospital, SI Abhishek reached the hospital and collected his MLC.
According to PW15, he was living on rent in a portion of 4th floor of house at Tank Road during the relevant period, but he could not tell the complete address of that house. According to him, on 27.10.15 at 6:30 pm, he was preparing meals, he saw heavy smoke and rushed downstairs while raising alarm. Having fallen in the staircase, he became unconscious. When he regained consciousness, he found himself at Lady Harding Hospital. Smoke occurred due to fire set on the lower floor but PW15 displayed ignorance as to how the fire broke or was set on. So, PW15 has also not deposed anything against the accused.
10. As per prosecution version, main stay of State vs. Keshav Kakad 10 prosecution was on the statements of Anand Kumar and Suresh Kumar, who were running shop no.16/947, Street NO.2, on Tank Road. Rakesh (since deceased) was their elder brother. He too used to run business at the same shop. PW12 According to PW12 Anand Kumar, on 27.10.15, he and his brother PW13 Suresh Kumar and Rakesh Kumar (since deceased) were present at the said shop. At about 5:45 pm, he and Suresh Kumar went downstairs and entered the basement to attend a customer. After about 1015 minutes, they heard noise as if some blast had taken place. So both of them came upstairs and saw one generator on fire. They also saw their brother Rakesh also on fire. Some portion of the shop was also on fire.
According to PW12, he and his brother Suresh put a cloth and poured water on their brother Rakesh. In this process, they suffered burns. They removed their brother to BLK hospital. The doctors of the said hospital referred their brother to Safdarjung hospital. Thereafter, he was referred to RML hospital. At RML hospital, he remained under treatment State vs. Keshav Kakad 11 for about one week and ultimately, died on 3.11.15.
PW12 denied to have given any information to the police at any point of time. He stated about arrival of police at BLK hospital to see their brother Rakesh, but displayed ignorance as to who had informed the police. He denied to have made any such statement before the police.
Case of the prosecution is that this witness was got examined u/s 164 Cr.P.C vide statement Ex.PW12/A. Prosecution has examined PW17 Sh.Prayank Singh, Metropolitan Magistrate, who recorded statements of Anand Kumar and his brother Suresh.
According to PW12, he made statement before the Magistrate at the instance of police and stated whatever, he was told by the police. He disputed the correctness of the statement on the ground that it contained the version given by him as he was told by the police to state.
Finding that PW12 was not making statement in consonance with statement made before the police, Ld. Addl. PP sought permission from the Court and put leading questions to the witnesses, but nothing useful to the State vs. Keshav Kakad 12 prosecution could be elicited from him.
The witness denied that the accused used to collect money from them forcibly by way of rangdhari or to that he had so stated before the police. He further denied that on 27.10.15 at about 6:00 pm, accused had come to him and his brother Rakesh at their shop or demanded money forcibly or that he refused to give money to the accused, or called his brother Suresh and apprised him of the demand. He further denied that the accused again demanded money extending threats to them or that he pushed them and entered the shop or then poured petrol on his brother Rakesh and set him (Rakesh) and the shop on fire or that then he ran away from the spot. He further denied that his brother Rakesh died in the hospital due to said burn injuries. He further denied that he was suppressing true facts intentionally or deliberately or that he had arrived at compromise with the accused or that that is why he has not intentionally identifying him. PW13 PW13 Suresh Kumar, another brother of Rakesh Kumar (since deceased) has also not raised any accusing finger State vs. Keshav Kakad 13 against the accused. He too was put leading questions by Ld. Addl. PP after seeking permission from the court but nothing useful to the prosecution could be elicited from him. Ld. Addl. PP then confronted the witness with his statement Ex.PW13/A made before Metropolitan Magistrate u/s 164 Cr.P.C but the witness explained that the statement was not correct as he was in depression at the time, he made the same and also because it contained the version told to him by the police for being stated. He even displayed ignorance about the accused. He further displayed ignorance as to how fire broke out in their shop. He denied to have seen any person setting his brother and shop on fire.
When the witness was put leading questions by Ld. Addl. PP, he denied the suggestion to have made statement Ex.PW13/A before Metropolitan magistrate voluntarily. He displayed ignorance about the police official, who had asked him to make statement in a particular manner but denied the suggestion that no such police officer had asked him to make any such statement.
PW13 further denied that the accused had actually State vs. Keshav Kakad 14 set his brother on fire which led to his death and that their shop also got burnt in the incident.
The fact remains that neither PW12 nor PW13 have stated before this court any fact regarding involvement of the accused.
PW14 Then, there is statement of PW14 Sh.Parveen Kumar, who was running a shop while dealing in CCTV camera and DVR repair work. According to him, on 30.11.15, SI Abhishek called him to Police Station Pratap Nagar. There, he copied CCTV footage contained in a DVR and pasted it in a pen drive. He further stated to have delivered the pen drive to SI Abhishek with certificate u/s 65B of Evidence Act.
SI Abhishek Kumar has deposed to have visited the place of occurrence on 30.10.15 and contacted Kishore Kumar, owner of the property. As stated by the SI, Kishore Kumar produced before him DVR of CCTV camera with a pen drive containing footage of incident of fire which occurred on 27.10.15 at shop no.16/94547. He further deposed to have seized the DVR and pen drive vide memo Ex.PW16/E. State vs. Keshav Kakad 15 It may be mentioned here that Kishore Kumar said to be owner of the said property was not cited as a witness. He has also not been examined in court as prosecution witness. Certificate u/s 65 B of Evidence Act was to be given by Kishore Kumar, who is said to have been maintaining DVR. No such certificate was collected from him. Furthermore, no certificate u/s 65 B of Evidence Act has been filed regarding copying of the CCTV footage from DVR and pasting it in pen drive. Surprisingly, no such pen drive has been proved or produced on record. When statement of SI Abhishek was being recorded on 27.4.15, MHC(M) Rajbir Munshi stated that pen drive was not available in the malkhana. Fact remains that no such pen drive has been produced before the court.
In view of the above discussion, statement of PW14 Parveen Kumar in respect of CCTV footage is also of no avail to the prosecution so as to be put to the accused by way of incriminating material in his statement u/s 313 Cr.P.C.
11. The remaining evidence led by the prosecution includes medical evidence and the evidence regarding arrest of State vs. Keshav Kakad 16 the accused from Mumbai. When the material witnesses PW12 and PW13 have not raised any accusing finger against the accused and the piece of electronic evidence is inadmissible for want of certificate u/s 65B of Evidence Act, Court finds that there is no incriminating material to be put to the accused in his statement u/s 313 Cr.P.C. Therefore, recording thereof is dispensed with.
12. When prosecution has not brought any incriminating material on record to be put to the accused u/s 313 Cr.p.C, the accused is hereby acquitted of the charge framed against him in this case.
13. Case property be disposed of on expiry of period for appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room. Announced in the open Court on 6th day of June 2017 (Narinder Kumar) Special Judge NDPS - 02 (Central) Tis Hazari Courts, Delhi State vs. Keshav Kakad