Delhi District Court
State vs . on 19 January, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIOS JUDGE (NORTH):DELHI.
S.C. No. 37/10
ID No.02401 R 0218982010
State
Vs.
Tashi
Son of Sh. Tsewan Gorjee
H.No.21, Tara Devi Colony
Monastry Market
Budh Vihar, Delhi.
FIR No.:14/10
PS : Timarpur
U/S 302 IPC
Date of Institution:16.04.10
Date of reserving judgment:11.1.11
Date of pronouncement:19.1.11
JUDGMENT
1 In the present case, charge has been framed against accused Tashi in respect of offence U/S 302 IPC. The allegation in the charge is that on 17.1.10 at 7.50 PM at Tibiti Colony, behind school gali, Main Market, Delhi he committed the murder of Jampa.
Accused pleaded not guilty to the said charge and claimed trial.
SC No.37/10 1/14 2 2 Prosecution has examined 21 witnesses to prove its case. They are Deepak Kumar Singh (PW1), Sonam(PW2), Rajjan(PW3), Vipin Kumar(PW4), Dr. Deepak Kumar Singh(PW5), SI Bharam Singh(PW6), Dr. Priya Ranjan(PW7), SI Radhey Sham(PW8), ASI Swadesh Kumar (PW9), HC Jitender(PW10), Dr. S.Lal(PW11), Ct. Shishupal(PW12), HC Swadesh Pal(PW13), Ct. Dharmender Singh (PW14),Ct. Karan Singh Tomar(PW15), W/Ct. Mithlesh(PW16), SI Mahesh Kumar(PW17), SI Sunil Kumar(PW18), Ct. Rajesh(PW19), Ct. Inderjeet(PW20), Inspector Rajneesh Parmar(PW21) .
3 Statement of accused has been recorded U/S 313 Cr.P.C, wherein he has denied the allegations of prosecution. He has submitted that he is innocent and has been falsely implicated in the present case. He has further submitted that On the day of incident, he was coming from the market after purchasing the goods. He is having a shop in Tibtian Market ISBT, Delhi. When he was coming back to his house, in the way, there was a big stone and he struck against it. As a result of this he received injuries and blood started oozing. During that period police party came and falsely implicated him in this case.
4 Accused has not examined any witness in his defence. 5 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State. I have perused the case file. SC No.37/10 2/14 3 6 In the present case, PW2 Sonam is the star witnes of the case, being eye witness. She has not supported the prosecution story. She has deposed that on 17.1.10 at about 7.30 PM, when she was at her home police came to her house. They (Police)have taken her to police station. Her husband Tashi was there at police station. Tashi told her that he was apprehended by police from the road and had taken him to police station. She does not know anything about the case as she was at home. Police did not record her statement. They (Police)only asked her name and profession of her husband.
7 In crossexamination by ld.Ld. Addl. P.P, PW2 has deposed that she has not stated to police that a person namely Jugga (friend of deceased Jampa) used to tease her and used to do obscene activities with her for the last 7/8 months. PW1 has further deposed that she had not stated to police that initially she did not tell this matter to anybody, but when Jugga started teasing her quite often, she apprised the matter to her husband Tashi. She has denied that she had stated to the police that Tashi tried to make understand Jugga and Jugga remained quite for some time. She has further deposed that she did not state to the police that on 17.1.10 she alongwith her husband went to Tibetan School as there was some dance programme or that they (PW2 and her husband)also participated in dance and Jhampa (the deceased)was also SC No.37/10 3/14 4 present there, who on seeing her, got excited and started teasing me. She has not stated to the police that her husband had objected to the activities of Jampa and told him not to do so or that Jampa abused her husband and started pushing him, when he objected to his advance towards her or that she had taken her husband from school and went to road on the side of school or that Jampa followed them and lifted a stone from the street and hit on the head of her husband or that her husband Tashi became angry and took a dagger and hit Jampa with it several times or that Jampa fled away from there and collapsed due to injury and her husband fled away from there. She has denied that Jugga used to tease her and used to make advance towards her and she apprised the same to her husband Tashi or that he (her husband)tried to make Jugga understand or that he (Jugga) remained quite for some time but again started teasing her. She has denied that Jugga and Jampa again started teasing her. She has further denied that on 17.1.10 they did obscene activities towards her and her husband tried to stop him, but when they did not stop Tashi got angry and hit Jampa with dagger . She has denied that she is deposing falsely in order to save accused Tashi, who is her husband. She has further denied that she had seen Tashi hitting Jampa with dagger at spot.
SC No.37/10 4/14 5 8 Another material witness is PW3 Rajjan. He has also not supported the prosecution case. He has deposed he has been selling fruits in Majnu Ka Tilla for the last 3/4 years. In the month of January, 2010, some people were fighting, near the road. They were throwing stone on each other. Some stones were coming towards them . He fled away from his shop and went towards Dolma Resturant. After some time, when quarrel stopped he came back to his fruit shop. He saw one person, lying in an injured condition, near electricity pole. He had not seen any particular person beating the injured. The incident took place at about 8.00 PM. After some time he closed his fruit shop and went to home. Next day, Police came to his shop and made inquiry from him. Accused was not present with police when they visited his shop on the next day of incident. He had not seen the person, who had caused injuries to the injured, lying on the street near pole. 9 In crossexamination by ld. Addl. P.P. PW3 has deposed that the incident took place on 17.1.10. He has deposed that he had stated to police that at about 8.00 PM some people were fighting inside the colony. He has further deposed that he had not stated to police that one person was having a long knife in his hand. One person came crying and fell down near pole. He has denied that he has not stated to police that one person came with knife and lifted the injured SC No.37/10 5/14 6 person and abused him . He has denied that he had stated to police that a person with knife fled away towards main road. He has further deposed that he had stated to the police that when he went near the injured, the blood was oozing from several parts of his body and several public persons gathered there, who lifted the injured and took him to the hospital. He has not stated to police that police official came to his shop with accused, whose name was revealed as Tashi. He has denied that the accused came to his shop few times to buy fruits, before the incident. He cannot identify Tashi as he had not seen him with police at spot. He has denied that he had seen accused Tashi coming to place where injured was lying in an injured condition with dagger. He has denied that the police brought Tashi to him on the next day of incident, when they came to make investigation. He has denied that he has been won over by the accused and is deposing falsely in order to save him. He has denied that he is deliberately not identifying the accused Tashi present in court.
10 Another material witness is PW4 Vipin Kumar. He also has not supported the prosecution case. He has deposed that in the month of January, 2010 he was in his fruit shop, behind Tibetan school bldg. Between 8.00 to 9.00 PM, two persons came quarreling with each other. They were hitting each other with stones. He fled away from his SC No.37/10 6/14 7 shop, in order to save himself from stones and hide himself behind the wall of street. After 4/5 minutes, he came back to his shop. He saw that one person was lying in an injured condition near electric pole. After sometime one person came and lifted him and took him towards road. 11 In crossexamination by ld. Addl. P.P PW4 has deposed that incident took place on 17.1.10. He had stated to police that at about 8.00 PM some people came from main road and were in the street. He had not stated to police that one of the persons, who were quarreling had one long dagger in his hand or that one person came crying in the street and fell down near electric pole. He has not stated to police in his statement that one person came behind the injured person, with a long dagger in his hand, abused the injured, lifted him from the street and threw him again on the street. He had stated to police that some people gathered and they lifted the injured. He (PW4)has denied that on next day, when police came to him for making inquiry, they(Police) had come with accused, whose name was Tashi. He had not stated that he was the same person, who was having knife in his hand. He has not seen the accused with police, when they came to him. He has denied that on the day of incident at about 8.00 PM he had seen accused Tashi with long dagger, who abused the injured, lying on the street, near electric pole. He has denied that he was having a dagger in his hand at that time. He has SC No.37/10 7/14 8 further denied that he is deliberately not identifying the accused Tashi, today in the court, as he has been won over by the accused. 12 In the present case, PW2, PW3 & PW4 are the material witnesses. They have turned hostile. Now, the prosecution case rests upon the circumstantial evidence.
13 "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
(iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
14 The incriminating circumstance in the present case, against the accused is that he was apprehended by PW ASI Swadesh at about 0.00 PM near Pontoon Pul, Yamuna River with weapon of offence namely, SC No.37/10 8/14 9 dagger.
15 PW8 ASI Radhey Sham, PW9 ASI Swadesh Kumar, PW14 Ct. Dharmender Singh, PW18 SI Sushil Kumar, PW19 Ct. Rajesh and PW21 Inspector Rajneesh Parmar are the material witnesses so far as the recovery of dagger from the possession of accused at Pontoon Pul, Yamuna River is concerned. After going through the testimonies of these witnesses, I am of the considered view that apprehension of accused Tashi alongwith weapon of offence at Pontoon Pul is doubtful and is not proved beyond reasonable doubt by the prosecution. 16 In the testimonies of PWs, there is conflicting evidence on record as to how PW21 (IO) received the information from ASI Swadesh Kumar about the apprehension of accused Tashi with weapon of offence. PW9 ASI Swadesh Kumar has deposed that on 17.1.10 at about 7.30 PM, he was present near Pantoon Pul of Yamuna river. At about 10.00 PM, accused, present in court, was coming from the side of Tibbiti colony. He was having a blood stained dagger in his right hand. PW9 inquired about it and took the charge of dagger. He asked him about the blood stained dagger, which was recovered from his possession on which he (accused)disclosed him that he had killed a person namely, Jampa behind Tibeti Colony by stabbing him with that dagger. He disclosed this fact to the SHO through his mobile phone . SC No.37/10 9/14 10 After some time, SHO Inspector, Rajnish Parmar alongwith SI Radhey Shyam & Dev Kumar came there in a Govt. Gypsy, driven by ASI Braham Singh. In other words, as per the testimony of PW9, the information was given by him to IO from the Pontoon Pul and was received by him on his mobile phone. But PW21 Inspector Rajneesh Parmar has deposed in crossexamination that he had come to the place of incident for the second time from Trauma Centre and remained there for 10 minutes. From there, he proceeded and came to the Pontoon bridge, from where he received the information from ASI Sudesh. In other words, IO of the case received the information from ASI Swadesh personally at the Pontoon Bridge and no mobile phone was used by ASI Swadesh. The material contradiction has created a pitfall in the prosecution case. 17 Prosecution witnesses are not consistent to the time when accused was apprehended by ASI Swadesh Kumar at Pontoon Pul. PW21 Inspector Rajneesh Parmar has despoed in his cross examination that as per the information given to him by ASI Sudesh accused Tashi was apprehended at about 8.15 PM. He (PW21) reached at bridge at about 10.00 PM and remained there upto 10.30 PM. In other words, as per the testimony of PW21, accused was apprehended at about 8.15 PM by ASI Sudesh. But PW9 ASI Swadesh Kumar has deposed that on 17.1.10 at about 10.00 PM, SC No.37/10 10/14 11 accused present in court was coming from the side of Tibbiti colony. He was having a blood stained dagger in his hand.
18 In the testimonies of PWs there is conflicting evidence as to whether any public person or shopkeeper was present at the spot or not. PW18 SI Sunil Kumar has deposed in his crossexamination that one shopkeeper whose name and number of shop he does not remember, was present near the place of occurrence. The said person was a rehriwala. He was not Tibiti. He was a North Indian. But PW9 ASI Swadesh Kumar has deposed in his crossexamination that no public witness was called, nor any witness was available at the place of the incident. However, PW19 Ct. Rajesh has deposed in his cross examination that there were number of rehriwalas and residents of locality at the spot. Few shops were also open at that time.
19 It is worth noting that in the present case PW21 Inspector Rajneesh Parmar had sent the weapon of offence namely, dagger, to Finger Print Bureau. The figner print report is Ex. PW21/J. A perusal of the finger print report Ex. PW21/J shows that no chance print could be developed by the finger print expert on the dagger. 20 It is also worth noting that the postmortem on the deadbody of deceased was conducted by PW11 Dr. S. Lal vide postmortem report Ex. PW11/A. A perusal of report Ex. PW11/A shows that the cause of SC No.37/10 11/14 12 death was haemorraghic shock due to stab injury in chest and abdomen and injuries No.2 & 5 are sufficient to cause the death in the ordinary course of nature individually and collectively.
21 In crossexamination by ld. counsel for accused PW11 has deposed that weapon of offence was produced to him for his opinion, upon which he had given his opinion Ex. PW11/B. A perusal of report Ex. PW11/B shows that injury No.1 to 5 mentioned in the postmortem report could have been possible to be caused with the weapon of offence (dagger) produced before PW11 for examination. As per FSL result Ex. PW21/L blood was detected on weapon of offence. 22 However, since arrest of accused with weapon of offence namely dagger in the present case is doubtful for the reasons discussed above, I am of the considered view that link between the offence and offender is not proved beyond reasonable doubt.
23 Prosecution has to prove its case beyond reasonable doubt.
"In Balraj Singh V. State of Punjab 1976 Crl.L.J. 1471 (DB) (Punj.), it was held that "the guilty of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on the record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole the prosecution may be true but SC No.37/10 12/14 13 between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted."
24 In view of the above discussion, I am of the considered view that the incriminating circumstance against accused namely arrest of accused with weapon of offence at Pontoon Pul by ASI Swadesg is not cogently or firmly established. The alleged circumstance is not of the definite tendency and does not point towards the guilt of accused. I am further of the considered view that circumstantial evidence against the accused in the resent case is not forming a chain, so complete, that there is no escape from the conclusion that within all human probability the murder has been committed by the accused Tashi. I am also of the considered view that circumstantial evidence against the accused in the present court is not complete and capable of explanation of any other hypothesis than that of the guilt of the accused and the evidence is not consistent with the guilt but is inconsistent with his innocence. Accordingly, I am of the considered view that prosecution has miserably failed to prove that on 17.1.10 at 7.50 PM at Tibiti Colony, behind school gali, Main Market, Delhi accused Tashi committed the murder of Jampa. Accordingly, accused Tashi is acquitted of the offence of murder of deceased Jampa. Accused SC No.37/10 13/14 14 is on bail in this case. His personal bond and surety bond are cancelled. His surety is discharged.
File be consigned to Record Room.
Announced in open court today on (Smt. Bimla Kumari) 19.1.2011 Addl. Sessions Judge (North):Delhi SC No.37/10 14/14