Delhi District Court
State vs . Shankar Thapa on 9 May, 2019
IN THE COURT OF VIJETA SINGH RAWAT,
METROPOLITAN MAGISTRATE - 06 (SOUTH),
SAKET COURTS, NEW DELHI.
FIR No.64/2011
PS - Hauz Khas
U/s - 309 IPC
State Vs. Shankar Thapa
JUDGMENT
Part A - The lis at a glance A. Serial No. of the Case: 2033906/16 B. Date of Commission: 19.02.2011 C. Name of the Complainant: Sh. M.A. Sattar Imran S/o. Sh.
M.A. Mannan, R/o. H. No. 5-10-
232, Manyam Chalka Nalgonda
- 50800 1 (A.P.)
D. Name of Accused: Shankar Thapa S/o. Sh. Dillu
Thapa R/o. Room No. 007,
Vinayak Boys Hostel, Gautam
Nagar, New Delhi.
E. Offence complained of: 309 IPC
F. Plea of the accused : Pleaded not guilty.
G. Final Order: Acquittal
H. Date of such order: 09.05.2019
I. Date of Institution of Case: 28.07.2011
J. Judgment reserved on: 09.05.2019
Part B - A brief statement of reasons for the decision (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.)
1. The present FIR emanates on a complaint by Sh. M.A. Sattar Imran, S/o. Sh. M.A. Mannan, R/o. H. No. 5-10-232, Manyam Chalka Nalgonda - 50800 1 (A.P.) hereinafter, referred to as "the complainant" alleging that on 19.02.2011, at about 9.00P.M. at Room No. 007, Shri Vinayak Boys Hostel, 56 Yusfu Sarai, Gautam Nagar FIR No. : 64/11 State Vs. Shankar Thapa 1/6 Road, New Delhi falling within the jurisdiction of PS Hauz Khas, accused Shankar Thapa S/o. Sh. Dillu Thapa R/o. Room No. 007, Vinayak Boys Hostel, Gautam Nagar, New Delhi hereinafter, referred to as "the accused" attempted to commit suicide by inflicting injury on his neck by sharp edged weapon and left wrist and thereby committed offence punishable u/s 309 Indian Pendal Code (hereinafter, referred to as 'IPC').
2. After completion of investigation, charge sheet was filed on 28.07.2011 Cognizance of offence was taken. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 hereinafter referred to as "The Code".
3. Notice u/s 251 of the Code was framed against the accused for offence punishable under Section 309 of the IPC vide order dated 07.12.2011 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. PW-3 : Sh. Abdul Sattar Imran/the Complainant who inter alia testified before the Court that he came to Delhi in 2012 and was residing at a PG Hostel, Gautam Nagar, New Delhi, after completing MBBS from China; that the accused, Adlin, Virginia, Dempi and Dhafeera Leen were his Juniors in MBBS; they were also in Delhi for coaching; that one day in the morning, his junior Nagarjun called him and informed that the accused had stabbed Virginia; that on the same day, in the evening, the accused came to the PG Hostel and was bleeding; that he was having difficulty in speaking; that he had injuries on his throat and left wrist; that the witness called FIR No. : 64/11 State Vs. Shankar Thapa 2/6 Nagarjun and Nikhil but they did not come; that he then called Safdarjung Hospital and took the accused to the hospital; that he informed the police; that accused was arrested vide Arrest Memo Ex.PW-1/B and personal search memo Ex.PW-1/C. The witness denied that he had given any complaint. He again stated that Ex.PW-3/A was recorded by the police official. He correctly identified the accused. He was duly cross-examined by the State and the defence.
5. PW-2 HC Naresh Pal/Duty Officer, who tendered FIR Ex.PW-2/A in evidence. He was duly cross examined.
6. PW-4 Dr. Atar Ur Rehman, who tendered MLC Ex.PW-4/A in evidence. He was duly cross examined.
7. PW-1 ASI Kishore Kumar who proved the various stages of investigation carried out by him. He tendered the following documents in evidence : -
a) Seizure Memo in respect of Pencil Sharpner Knife : Ex.PW-1/A
b) Arrest Memo : Ex.PW-1/B
c) Personal Search Memo : Ex.PW-1/C
d) Seizure Memo in respect of clothes worn by accused: Ex.PW-1/D
e) Seizure in respect of blood sample and sample seal: Ex.PW-1/E He identified the clothes of the accused and weapon of offence, which is a pencil sharpening knife. He was duly cross-examined.
8. PW- 5 SI Inderjeet/Investigating Officer, who proved various stages of investigation carried out by him. He relied upon documents, which have already been proved. He was duly cross-examined.
FIR No. : 64/11 State Vs. Shankar Thapa 3/6
9. Prosecution evidence was closed vide order dated 23.08.2017.
10. Statement of accused was recorded on 06.10.2017 wherein the incriminating evidences were put to the accused which he denied and claimed innocence. He did not lead any defence evidence.
11. Final arguments have been heard today.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
12. The essential ingredients which the prosecution is required to prove to establish the guilt of the accused beyond reasonable doubt for offence punishable u/s 309 IPC is as under :
a) that the accused self inflicted injury with a sharp edged weapon on his neck and left wrist.
b) that the injury was sufficient to cause his death.
13. The prosecution has to establish its case beyond reasonable doubt.
"Reasonable doubt" has been defined by the Apex Court in Latesh @ Dadu Baburao Karlekar Vs The State of Maharashtra (2018) 3 SCC 66 as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis." It has been held in Sheila Sebastian Vs R. Jawaharraj, Criminal Appeal Nos. 359-360 of 2010 decided on 11.05.2018 by the Apex Court that "...The standard of proof in a criminal trial is proof beyond reasonable doubt FIR No. : 64/11 State Vs. Shankar Thapa 4/6 because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability." Per contra, the defence is only required to stand the test of preponderance of probability.
14. The case totally hinges upon circumstantial evidence and therefore, there is a burden upon the prosecution to fully establish the guilt of the accused leading to a singular conclusion that it is the accused who is guilty and rule out the probabilities, which may point towards the presumption of innocence of the accused. The prosecution has to by way of cogent evidence prove circumstances of conclusive nature to the exclusion of alternate hypothesis than the guilt of the accused. Reliance is placed upon Dharminder Singh Vs. State (2013) 12 SCC 263. In Hanumant Vs. State of M.P. AIR 1953 SC 343, the Apex Court has enunciated as under:-
"... It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
15. The material witness examined by the prosecution is PW-3, who had shifted the accused to the Hospital. Ld. Counsel for the accused has pointed out contradictions in the case of the prosecution as the MLC Ex.PW-4/A, records that FIR No. : 64/11 State Vs. Shankar Thapa 5/6 the accused was brought by Ct. Sumit. Further, ld. Counsel for the defence has also drawn the attention of the Court to the testimony of PW-3, who has not only stated that complaint Ex.PW-3/A was recorded by the police official himself but has also been contradicted as to whether the accused was in the condition to speak and had actually disclosed how he sustained injuries. Perusal of record shows that PW-3 was also examined before the Court of Sessions in FIR No. 63/11, PS Hauz Khas, wherein he stated as under :-
"..... I took accused Shankar Thapa to Safdarjung Hospital. Nikhil and Nagaarjun met me at Safdarjung Hospital, Shankar Thapa was unable to speak. He did not tell me how he has sustained injury.", which is recorded in Ex.PW-3/DX-1.
16. In the considered view of this Court, the testimony of star witness PW-3 Abdul Sattar Imran is fraught with inconsistencies and major contradictions, which go to the root of the matter. Suspicion, no matter how strong, cannot be a substitute for legal proof. Undoubtedly, it cannot be said that the case of the prosecution has stood the litmus test of circumstantial evidence as laid down in Hanumant (Supra). Thus, conviction would not be sustainable. There is no other witness to the incident. All other witnesses examined are formal in nature. Thus, the prosecution has failed to prove its case beyond reasonable doubt. Accused is therefore, acquitted of the offence charged with.
17. File be consigned to records, after compliance with Section 437-A Cr.P.C.
Announced in the open Court
on 09.05.2019 (Vijeta Singh Rawat)
M.M.-06 (South), Saket Courts,
New Delhi: 09.05.2019
FIR No. : 64/11 State Vs. Shankar Thapa 6/6