Delhi District Court
State vs . on 19 July, 2014
FIR No. 562/07
IN THE COURT OF SH.PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 562/07
Under Section : 302/213/214/201 IPC
Police Station : M.S. Park, Delhi
Sessions Case No : 33/14
Unique I.D. No. : 02402R0865102008
In the matter of :
STATE
Vs.
1. Surender @ Sahender @ Pajami
S/o Sh. Surat Singh,
R/o Village & PO: Ramala,
District: Bagpat, U.P.
2. Sarabjeet Singh @ Sanju
S/o Late Sh. Kirpal Singh,
R/o A-88, 2nd Floor, Ramprastha,
Ghaziabad, U.P.
Date of Institution : 21/07/2008
Date of Committal : 09/09/2008
Date of receiving in this Court : 21/01/2014
Date of reserving judgment : 09/07/2014
Date of pronouncement : 19/07/2014
Decision : Acquitted
Page no. 1 of 35
(Pulastya Pramachala)
Addl. Sessions Judge (Shahdara)
Karkardooma Courts / Delhi
FIR No. 562/07
JUDGMENT
Case set up by the prosecution :-
1. In this case, the criminal justice system was set into motion by an information regarding unnatural death of an old man. This information was received at 2.00 PM in PS-M.S. Park, Delhi, vide DD No. 14-A dated 30.11.2007. On receipt of this information, S.I. Jaswant Singh visited the house no. A-45, M.S. Park, Delhi. In that house, an old man was found lying dead in the room, whose name was disclosed to be Sardar Kripal Singh. Injuries on the back of his head were visible and the other articles were lying scattered in that room. However, police could not find any eye-witness of the incident. Crime team was called at the spot, which took photographs of the place and lifted chance prints.
On the basis of available scenario, present FIR was lodged under Section 302 IPC and thereafter, investigation was assigned to Inspector Ranjit Ekka. During investigation, IO recorded statement of several persons and came to know that accused Surender used to reside in the house of deceased, however, he was not traceable. It was found that a licensed revolver was missing from the room of the deceased. The postmortem examination of the dead body of deceased was conducted on 01.12.2007, wherein report was given by the doctor that the cause of death was the shock due to ante-mortem injury to head, produced by blunt force impact. In the course of further investigation, IO found that deceased Kirpal Singh had executed GPA, SPA, Will and Agreement to Sell in respect of his property no. G-52, Gokalpur, Shahdara Delhi, in favour of his son Sarabjeet (accused Page no. 2 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 herein), on 03.02.1999. However, on 14.12.1999, the aforesaid GPA, SPA, Will and Agreement to Sell were canceled by the deceased and he had sent a legal notice to Sarabjeet Singh through his counsel. On the basis of information given by a witness namely Gulshan on 27.04.2008 and on the basis of secret information, IO apprehended accused Surender from Shahdara, Railway Station. He gave his disclosure statement stating that accused Sarabjeet had murdered his father Sh. Kripal Singh and he had given some money and gold jewellery to Surender to suppress this fact. This gold jewellery belonged to deceased Kripal Singh. IO arrested accused Surender and on the same day, accused Sarabjeet had also come to the police station in compliance of a notice given under Section 160 Cr.P.C. Accused Sarabjeet was also interrogated and he also confessed his guilt. He was also arrested by the IO. At the instance of accused Sarabjeet Singh, police reached his house at A-88, Second Floor, Ramprastha, Ghaziabad, U.P. and recovered cancelled GPA, SPA, Original Will and a broken bangle belonging to deceased. Accused Sarabjeet was taken on police remand for the purpose of recovery of revolver. Police took him to Bareheta, District: Mansa, Punjab but accused did not co-operate with police and therefore, the revolver was not recovered. Police further found that accused Sarabjeet had got prepared a sale deed of property of Gokalpur and the same was mortgaged in Oriental Bank of Commerce, Noida. Deceased Kripal Singh was aware of the conduct of accused Sarabjeet and accused Sarabjeet under apprehension that his father would initiate legal action Page no. 3 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 against him, murdered him. He gave money and gold ring belonging to deceased Kripal Singh to accused Surender, in order to suppress this murder and not to come back to Delhi. Accused Sarabjeet had caused death of his father by hitting on his head with a wooden article used to wash the clothes (thapi). He had broken the glass of almirah and had scattered the articles on the floor, in order to mislead the police and to show it as an incident of robbery. Therefore, police filed charge-sheet against accused Sarabjeet and Surender alleging that Sarabjeet had committed offences under Section 302/214/201 IPC and accused Surender had committed an offence under Section 213 IPC.
2. After committal proceedings, on 15.04.2009, charges were framed against accused Sarabjeet for offences under Section 302/201/214 IPC, alleging that he had committed murder of his father Sh. Kripal Singh and that after committing the murder, he caused certain evidence i.e. the weapon 'thapi' to disappear with intention to screen himself from legal punishment and that he gave one gold ring and cash amount of Rs.5,000/- as gratification to co-accused Surender in consideration that Surender would suppress the offence of murder.
3. Accused Surender was charged for offence under Section 213/202 IPC, alleging that he had accepted gratification of one gold ring and cash amount of Rs. 5,000/- in consideration to screen accused Sarabjeet from legal punishment for the offence of murder and that he intentionally omitted to give information regarding commission of this offence, which he was legally bound to give.
4. Accused Surender had been released on bail but he had stopped Page no. 4 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 appearing in this case. Therefore, after completing the proceedings under Section 82 Cr.P.C., he was declared proclaimed offender on 17.12.2012. Thereafter, he was again produced before the Court and an additional charge was framed against him on 24.01.2013 for offence under Section 174-A IPC.
5. Prosecution examined 23 witnesses to prove its case. After completion of prosecution evidence, both accused persons were examined under Section 313 Cr.P.C. and accused Sarabjeet also produced 11 witnesses in his defence.
Prosecution Evidence :-
6. PW-1 Sh. Gulshan @ Pandit was the person, who had allegedly given information about accused Surender, however, he did not support the case of prosecution and deposed that he did not know Sanju or Pajami or Kripal Singh. On 04.12.2007, he was sleeping under a fly-over near M.S. Park, when he was lifted by S.I. Rishi Pal and taken to PS-M.S. Park. He was interrogated and beaten by the police and he told police that he did not know anything but police pressurized him to become a witness in this case. He was declared hostile by the prosecution and was cross-examined at length.
7. PW-2 Dr. Atul Gupta had conducted postmortem examination of dead body of deceased Kripal Singh and had given his report, which was proved as Ex.PW2/A. He had given opinion regarding cause of death as shock due to ante-mortem injury to head produced by blunt force impact.
8. PW-3 Dr. K.K. Banerjee was Professor in the Department of Forensic Page no. 5 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 Medicine at GTB Hospital, Shahdara. On 15.07.2008, he had given further opinion in this case regarding the possibility of cause of death with 'thapi' and regarding particular injuries, which were sufficient to cause death in ordinary course of nature. He gave his opinion, which was proved as Ex.PW3/A.
9. PW-4 Sh. Om Prakash had taken photographs at the house of deceased on 30.11.2007 and he proved those photographs as Mark A1 to A7.
10. PW-5 Sh. R.S. Rana was posted as Sub-Registrar, Nand Nagri on 02.05.2008. He had handed over the certified copy of cancellation deed of SPA, GPA and Will in respect of property no. G-52, Gokalpur, Shahdara, Delhi and IO had seized those deeds through seizure memo. He proved the certified copies of those documents as Ex.PW5/B. He further handed over certified copies of sale deed, GPA and Will, which was attested by Sh. Dinesh Gandhi, Sub-Registrar, Nand Nagri. He identified the signature of Sh. Dinesh Gandhi.
11. PW-6 Sh. Kartar Singh was an agriculturist in Village : Hotipur, District:
Sangroor, Punjab. He deposed that he knew deceased Sh. Kripal Singh because son of Sh. Kripal Singh namely Sh. Amarjeet Singh lived at Moonak Sub Division in District - Sangroor. Sh. Kripal Singh was resident of Delhi, who used to visit Sh. Amarjeet Singh. This witness was acquainted to Sh. Amarjeet Singh. According to him, Sh. Kripal Singh had three sons. One of them was living in Delhi, whose name was Sanju. Another one was living in Patiala, who was known as Gama. Amarjeet Singh had told this witness that they were having Page no. 6 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 some property in Loni, U.P. and his father would dispose of his property at Loni and would buy agriculture land at Moonak. However, this witness was not aware whether father of Amarjeet Singh sold his property at Loni or not. He came to know that Sh. Kripal Singh was murdered. He came to Delhi along with Sh. Amarjeet Singh, after Sanju was arrested by the police and his statement was recorded by police. His statement was also recorded under Section 164 Cr.P.C. This witness was confronted with his statement under Section 164 Cr.P.C. and he admitted his signature appearing on the same, which was proved as Ex.PW6/A. He deposed that he made statement before ld. Metropolitan Magistrate at the instance of Inspector Ranjit Ekka, one ASI and Amarjeet Singh. Since this witness had given contrary statement from the one recorded under Section 164 Cr.P.C. and under Section 161 Cr.P.C, he was cross-examined by ld. Addl. P.P. He admitted that his statement was recorded by ld. Metropolitan Magistrate on 06.05.2008. However, he further deposed that he did not inform the ld. Metropolitan Magistrate that he was making statement at the instance of Inspector and Amarjeet Singh. He did not make any complaint to ld. Metropolitan Magistrate that he was pressurized by police officials and Sh. Amarjeet to give his statement. He did not make any complaint before any authority regarding pressure exerted upon him to make a particular statement before ld. Metropolitan Magistrate. Thereafter, he declined all those facts, which were stated by him before ld Metropolitan Magistrate under Section 164 Cr.P.C.
Page no. 7 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07
12. PW-7 Sh. G.R. Mittal was Branch Manager in Oriental Bank of Commerce, Noida. He brought the original documents of property bearing No. G-52, Gokalpur, Shahdara, Delhi and deposed that it was mortgaged by accused Sarabjeet Singh as collateral security against a loan amount of Rs. 1.25 crores. These documents were (1) Sale deed for Rs.6.25 lacs executed on 13.4.2005 by Sh. Yogeshwar Dayal in favour of Sarabjeet Singh Ex.PW-7/C, (2) General Power of Attorney executed on 17.1.2000 by Sh. Sarabjeet Singh on behalf of Kirpal Singh in favour of Yogeshwar Dayal Ex.PW-7/D, (3) Deed of WILL executed on 17.1.2000 by Sh. Sarabjeet Singh in favour of Yogeshwar Dayal Ex.PW-7/E, (4) Agreement to Sell executed on 3.2.1999 by Sh. Kirpal Singh in favour of Sarabjeet Singh Ex.PW-7/F, (5) Deed of WILL executed on 3.2.1999 by Sardar Kripal Singh in favour Sarabjeet Singh Ex.PW-7/G, (6) GPA executed on 3.2.1999 by Kripal Singh in favour of Sarabjeet Singh Ex.PW-7/H, (7) Receipt regarding receiving of sum of Rs.1 lac in cash from Sarabjeet Singh in respect of above said property by Sardar Kirpal Singh Ex.PW-7/I and Ex.PW-7/J (1+1), (8) GPA executed on 3.2.1999 by Sh. Kripal Singh in favour of Sarabjeet Singh Ex.PW-7/K, (9) SPA executed on 3.2.1999 by Sardar Kirpal Singh to appoint Sh. Sarabjeet Singh as his special attorney Ex.PW-7/L, (10) Deed of WILL executed on 3.2.1999 by Kirpal Singh in favour of Sarabjeet Singh Ex.PW-7/M. He produced certified copy of Sale Deed of Rs.48,000/- executed on 28.8.1981 by Sh. Ram Kishan Sharma in favour of Sardar Kirpal Singh Ex.PW-7/N. He further deposed that Sh. V.K.Garg, the then Branch Manager had handed over copy of these Page no. 8 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 documents to the IO and he had also written a letter to Inspector M.S. Park, Delhi regarding these documents. He identified the signature of Sh. V.K. Garg on the basis of record. He further deposed that he had not received any communication from any person regarding cancellation of GPA, SPA and Will.
13. PW-8 Sh. Attar Singh Khatri was an advocate, who deposed that late Sh. Kripal Singh was well known to him, who used to visit him for legal advise. At the instance of Sh. Kripal Singh, this witness had given a notice to Sh. Sarabjeet Singh on 20.12.1999 regarding appointment of legal attorney in respect of property No. G-52, Gokalpur Village. He had also given legal notice to accused Sarabjeet Singh for cancellation of Will of Sh. Kripal Singh, which is Ex.PW8/A. On 21.12.1999, on the request of Sh. Kripal Singh, he also gave a notice to general public in respect of aforesaid property, thereby, intimating the public at large about cancellation of Will and Attorney. He proved copy of that notice as Ex.PW8/B. He further deposed that notice sent to accused Sarabjeet Singh was returned to him with note of refusal, therefore, he had handed over the same to Sh. Kripal Singh. He further deposed that Sh. Kripal Singh had cancelled the GPA and Will because his son had become outlaw.
14. PW-9 Sh. Amarjeet Singh is youngest son of the deceased and brother of accused Sarabjeet. This witness used to reside in Punjab. According to him, accused Sarabjeet was involved in illegal activities. On the demand of this witness, deceased Kartar Singh had divided his properties in three portions and this witness was given immovable Page no. 9 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 property in Punjab with 1/3rd share in a house situated at Mansarover Park. Accused Sarabjeet had given him Rs. 1.5 lacs in lieu of his share in the house at Mansarover Park. Property No. G-52, Gokalpuri Delhi was retained by deceased, who had assured that after his death, same would be shared equally by all brothers. According to this witness, accused Sarabjeet had become dishonest and even his deceased father had told him that he would visit Punjab after selling the property at Loni border, Delhi. In January 1999, his father tried to dispose of the property of Loni border (G-52), but accused Sarabjeet suggested his father to take loan on this property and on this pretext, he obtained GPA in his favour to make arrangement of loan from bank. His deceased father had executed GPA in favour of Sarabjeet with respect to property no. G-52 and thereafter, Sarabjeet tried to dispose of this property. When father of this witness came to know about this, he consulted his lawyer friend Sh. Attar Singh (PW-8) and thereafter, he cancelled the GPA in favour of Sarabjeet in December 1999. Father of this witness informed this witness about all these facts and gave registered Will of the property of Punjab to him. Properties in Punjab were in the name of accused Sarabjeet and as per mutual arrangement, same were to be transferred by Sarabjeet in favour of this witness, but Sarabjeet did not do so as he had become dishonest. According to this witness, Sarabjeet had tried to give knife injuries to his father on two occasions and his father had decided to shift to Punjab after disposing of the property of Loni border. When Sarabjeet came to know about such intention of his father, he started giving Page no. 10 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 threats to him and therefore, they were having dispute. According to this witness, his father used to wear golden kada (bangle) and rings and he was also having licensed revolver. On 30.11.2007, this witness received a telephonic call from his brother-in-law Vikramjeet Singh regarding death of his father and he came to Delhi. Accused Sarabjeet told him that his father was living alone and was having loose character and he was killed by some girls. This witness suspected the version given by Sarabjeet and made his own inquiry about the cause of death of his father. Thereafter, he approached police and made his complaint. He also handed-over copies of certain documents viz. GPA, SPA etc. which were executed in his favour, to the police. According to him, his deceased father used to wear golden ring with green stone in the left hand and he could identify the same. He could also identify the golden bangle of his deceased father. He alleged that Sarabjeet had killed his father with motive to grab his property. This witness had identified the golden bangle and golden ring in the TIP and he also identified the golden bangle before the Court during his evidence. However, during production of golden bangle, Court observed that the bangle was not cut by any cutting instrument (as suggested by case of prosecution), rather it was broken into two pieces and it did not bear any distinctive mark etc. This witness did not identify golden ring with green stone, to be belonging to his father, which was allegedly recovered from accused Surender. One another ring with blue stone was also produced before this witness but he did not identify the same as belonging to his father.
Page no. 11 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07
15. PW-10 WSI Saroj was posted as Duty Officer on 30.11.2007, who had received the call regarding the death of old man at A-45, Mansarover Park and had recorded DD No. 14-A accordingly.
16. PW-11 H.C. Sonu Kaushik had prepared the scaled site plan after visiting the spot of incident on 15.07.2008.
17. PW-12 H.C. Siyanand had registered the FIR in this case on 30.11.2007.
18. PW-13 ASI Pramod Kumar had accompanied IO on 23.02.2008 to Munnak Punjab and they had met PW Amarjeet Singh.
19. PW-14 Ms. Shashi Bala was Senior Scientific Assistant in FSL Rohini.
She had examined parcels supplied by IO and given biological and serological reports Ex.PW14/A and Ex.PW14/B.
20. PW-15 SI Jaswant had attended DD No. 14-A on 30.11.2007. He visited the place of incident i.e. House No. A-45 M.S. Park and found a dead body of male person on the ground floor of that house. He inspected the room and called crime team. He prepared the rukka Ex.PW15/A and sent the same for registration of FIR. After registration of the FIR, further investigation was conducted by Inspector Ranjit Ekka (PW-22). Inspector Ranjit Ekka prepared site plan at his instance and he seized certain clothes and other articles from the spot in the presence of this witness.
21. Another witness H.C. Manoj Kumar was also examined as PW-11, who was MHC(M) on 30.11.2007 and had received four sealed parcels from IO/Inspector Ranjit Ekka. Thereafter on 27.04.2008, he accompanied IO and his team to Shahdara, Railway Station where accused Surender Page no. 12 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 was arrested by the IO. IO seized gold ring from accused Surender in his presence. On the same day, accused Sarabjeet was also arrested by the IO in the presence of this witness. Thereafter, accused Sarabjeet led the police team to his property at Ramprastha and got recovered a golden bangle as well as other documents relating to properties. He identified the golden bangle in the Court to be the same, which was recovered from the house of accused Sarabjeet.
22. Sh. R.L. Meena, the then ld. Metropolitan Magistrate was also examined as PW-12, who had recorded statement under Section 164 Cr.P.C. of the witness namely Kartar Singh (PW-6). He proved the record of proceedings conducted by him including statement as Ex.PW6/A. He had also conducted TIP of case properties i.e. one golden bangle and one ring. The record of TIP proceedings were proved as Ex.PW9/C. Another witness H.C. Devender Singh was examined as PW-13, who had deposited the parcels in FSL Rohini on 27.02.2008.
23. Another witness Ct. Rakesh was also examined as PW-14, who joined investigation of this case on 15.01.2008 and brought four parcels from GTB Hospital.
24. Ct. Babbar Raza was also examined as PW-15, who had also joined investigation on 30.11.2007 with SI Jaswant. He had taken the rukka for registration of FIR.
25. PW-16 Sh. Abhay Kumar Bakshi was working as typist in the court premises of SDM Seelampur and he had signed Power of Attorney and Will dated 17.01.2000 as a witness but he could not identify the person, Page no. 13 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 who had executed the same. In his cross-examination conducted by ld. Addl. P.P., he admitted making his statement before IO that Sarabjeet had executed SPA and Will of property No. G-52. He further admitted that Sarabjeet had come to SDM court and he had signed the documents as a witness at the instance of Sarabjeet.
26. PW-17 Ct. Shiv Veer Singh was member of police team, which visited Shahdara Railway Station on 27.04.2008 and had apprehended accused Surender. He remained member of police team, which conducted raid at the house of accused Sarabjeet at Ramprastha on same day. He identified the golden bangle and the golden ring with green stone to be the same, which were recovered from accused Sarabjeet and Surender respectively.
27. PW-18 Inspector Sushma Rawat had simply sent the exhibits to FSL Rohini on 27.03.2008 through Ct. Devender. PW-19 Sh. J.P. Raghav was SHO in PS: M.S. Park on 05.12.2007 and he had received the case file of this case for further investigation for brief period.
28.PW-20 ASI Rishi Pal was also member of police team, which conducted raid on 27.04.2008. He also joined investigation on 02.05.2007 and 05.05.2008 with IO. He also accompanied IO to Punjab, during police custody of Sarabjeet.
29. PW-21 Ct. Narender was also member of police team, which raided Shahdara Railway Station on 27.04.2008 and house of accused Sarabjeet at Ramprastha on the same day. He also accompanied IO to Punjab during police custody of Sarabjeet.
30. PW-22 Inspector Ranjit Ekka was IO of this case. According to him, in Page no. 14 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 January 2008, Amarjeet gave one application to him, thereby, alleging involvement of Sarabjeet, Balvinder and Surender in the murder of deceased Kripal Singh. Thereafter, he asked accused Sarabjeet to join the investigation and during investigation, one Pandit came to PS and gave statement that accused Surender had met him at Shahdara Railway Station and Surender had told him that deceased was murdered by Sarabjeet. On the same day, at about 04.30 PM, he received the secret information that Surender was present at Shahdara Railway Station and thereafter, he formed a police team and reached platform No. 1 of Shahdara Railway Station. They apprehended Surender at the instance of secret informer. Accused Surender was wearing a ring in his finger and during interrogation, he gave his disclosure statement thereby disclosing that accused Sarabjeet had murdered the deceased and had given him this gold ring. Thereafter, this witness arrested accused Sarabjeet and reached property No. A-88, Ramprastha, Ghaziabad. At the instance of accused Sarabjeet, he recovered broken pieces of gold bangle and cancelled GPA, SPA and Will of Plot No. G-52 Gokalpuri. He also obtained documents of same property from PNB Noida. He had taken accused Sarabjeet to Punjab in police custody of three days for recovery of missing revolver of the deceased. He had also obtained certified copy of cancelled GPA and other documents from the office of Sub Registrar, Nand Nagri.
31. PW-23 H.C. Chander Prakash brought register No. 19 containing record of deposit of case property of this case in malkhana. He proved copies of the original register vide which case properties were Page no. 15 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 deposited in malkhana on different dates.
Defence Evidence :-
32. Accused Sarabjeet produced 11 witnesses in his defence :-
(a) DW-1 Sh. Arun Kumar was Inspector in Punjab, State Human Rights Commission, who deposed that he knew deceased Kripal Singh as well his family. He had family relations with Kripal Singh and he used to stay in the house of Kripal Singh during his visit to Delhi. On 25.04.2008, he had come to Delhi and made call to accused Sarabjeet, but his phone was found switched off.
Thereafter, he called Rani sister of Sarabjeet, who told him that she along with Sarabjeet were present at P.S. Shahdara. He further deposed that Sh. Kripal Singh and Sarabjeet were having cordial relations.
(b) DW-2 Sh. Subhash Chand Jain was a commission agent at Moonak Punjab. He also claimed to have family relations with Sh. Kripal Singh. According to him, Sh. Kripal did not have cordial relations with Amarjeet Singh, though, he had cordial relations with accused Sarabjeet. On 25.04.2008 he had accompanied accused Sarabjeet and Rani to P.S. Shahdara and remained outside the P.S. Later on, Rani was also called inside. Thereafter, Amarjeet and the police Inspector came outside one after one and they told him that there was some dispute between the brothers, which would take some time to settle. Therefore, he was sent back.
(c) DW-3 Sh. Nand Singh was a transporter from Punjab, who also deposed that he knew Sh. Kripal Singh for 30 years being in the Page no. 16 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 same business of transport. According to him, Amarjeet did not have good relations with Sh. Kripal Singh.
(d) DW-4 Sh. Ajit Singh was also resident of Punjab, who also gave his opinion that Sarabjeet had good relations with Sh. Kripal Singh.
(e) DW-5 Smt. Rupender was wife of accused Sarabjeet, who deposed that on 29.11.2007 Sarbjeet came to his home at Ram Prastha, U.P. at about 8.30 and slept there. On next day, at around 10 AM, Mr. Sushil Garg a friend of Sarabjeet came to their house and thereafter Mr. Sushil Garg and Sarabjeet left together. Sarabjeet had cordial relations with his father and he had nominated his father as nominee in 5 LIC Policies taken before his marriage and 2 LIC Policies taken after his marriage. Financial condition of Sarabjeet was also good at the time of murder of Sh. Kripal Singh and Amarjeet was not having good relations with Sh. Kripal Singh.
(f) DW-6 Sh. Om Prakash was employee of accused Sarabjeet, who also deposed that he never had seen any dispute between Sh. Kripal Singh and Sarbjeet Singh. He used to collect rent from property at G-52, Gokal Puri.
(g) DW-7 Sh. Sushil Garg deposed that he had business relations with Sarabjeet and he had gone to his house in the morning of 30.11.2007 at about 10 AM. Thereafter, both of them went for separate work.
(h) DW-8 Sh. Raj Kumar was A.O. in LIC, who produced records to say that 5 policies taken in the name of Sarabjeet on 28.12.1997, were having name of Sh. Kripal Singh as nominee.
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(i) DW-9 Sh. K.S. Chauhan, Assistant in LIC, Laxmi Nagar, also produced record to say that two policies taken by Sarabjeet on 28.01.2006 were having name of Sh. Kripal Singh as nominee.
(j) DW-10 Sh. Ashish Kumar was a Charted Accountant, who proved audit report of M/s. Krishna Engineer for the period of 2007-2008 and 2008-2009. He further deposed that Sarabjeet, Sanjay Sharma and Sushil Kumar were partners of this firm.
(k) DW-11 Smt. Satvinder Kaur is sister of the accused Sarabjeet. She also deposed that there was no dispute between Sh. Kripal Singh and Sarabjeet at any point of time. She proved the treatment record of Sarabjeet at GTB Hospital during period of his custody, which was obtained under RTI Act as Ex.DW-11/Q and Ex.DW-11/R. She also deposed that she had accompanied Sarabjeet to P.S. Shahdara on 25.04.2008 and Sarabjeet was detained by police since 25.04.2008 itself.
Arguments of prosecution :-
33. According to ld. Chief PP, prosecution has proved the motive for accused Sarabjeet, who killed his father to grab property bearing No. G-52, Gokalpuri, Delhi. He argued that case of prosecution is proved on the basis of circumstantial evidence, despite the fact that PW-1 and PW-6 did not support the case of prosecution. According to him, since the golden bangle and ring as well as documents of property of deceased Sh. Kripal Singh were found at the instance of accused Sarabjeet, therefore the allegations made by prosecution have been proved. He also submitted that another ring of deceased was found Page no. 18 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 from accused Surender, therefore, allegations against him are also proved.
Arguments of defence :-
34. On behalf of accused persons extensive written arguments were filed.
For the sake of brevity, I do not wish to reproduce the same here. Briefly stated, it has been contended on behalf of accused Sarabjeet that he was falsely implicated at the instance of his brother i.e. PW-9. PW-9 and IO of this case acted in collusion to implicate this accused and to illegally detain this accused from 25.04.2008 to 28.04.2008. It was further argued that there is not a single evidence to connect this accused with the murder of his father or to show that he had used wooden 'thapi' to kill his father. It was also argued that falsity of case of prosecution is apparent from the evidence produced by DW-11, who is sister of accused Sarabjeet. This witness proved record of medical checkup of accused Sarabjeet during the period of his police custody. As per such record i.e. Ex.DW11/Q and DW11/R, accused Sarabjeet was produced by Ct. Shoveer in GTB Hospital for his medical examination on 29.04.2008, though, as per IO/PW-22 and other witnesses accused Sarabjeet was in Punjab at that time. Ld. Counsel submitted that mere on the basis of alleged motive, prosecution cannot prove the case of murder against the accused.
35. On behalf of accused Surender, it was argued that he was falsely implicated by the police. It was further argued that the alleged recovery of ring was planted upon this accused. Ld. LAC further argued that there is no evidence to prove the charges under Section 174-A IPC Page no. 19 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 as well.
Findings :-
36. PW-1 was the most important witness of the prosecution, who according to prosecution, had seen accused Sarabjeet and Surender in the night of 29/30.11.2007 in front of house of deceased Sh. Kripal Singh. According to prosecution, he had also seen a wooden 'thapi' in the hands of Sarabjeet with something of red colour appearing on it. However, this witness did not support the case of prosecution as projected. Before the Court, he deposed that he did not know Sarabjeet or Surender or Sh. Kripal Singh. He further deposed that he was lifted by the police and beaten by them and the police pressurized him to become a witness in this case. Ld. Addl. P.P. cross-examined this witness, but there was no material change in his stand.
37. I have already described the nature of each witness examined by prosecution in the previous part of this judgment, hence, I do not wish to repeat the same. None of these witnesses had seen accused Sarabjeet and Surender inside or near the house bearing No. A-45, M.S. Park i.e. place of incident, on the intervening night of 29/30.11.2007. The case of prosecution was developed on the basis of complaint and allegations made by PW-9, who is brother of accused Sarabjeet. According to IO/PW-22, PW-9 came to him in January 2008 and gave one application making his allegation against Sarabjeet and others. Prosecution has alleged that accused Surender was working as servant in the house of the deceased, however, IO did not bother to obtain any evidence from neighbourers or relative of deceased, in Page no. 20 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 support of this fact. According to prosecution, Surender was missing after death of Sh. Kripal Singh, however, such allegation does not make any sense in absence of the evidence that Surender was actually working as a servant and was residing at the house of the deceased.
38.PW-15 S.I. Jaswant, who had reached the spot of incident after receiving information, deposed that crime team had lifted chance prints from the spot. This fact was also admitted by IO/PW-22 in his cross- examination. However, IO admitted that the chance-prints did not match with the finger prints and foot prints of accused Sarabjeet. Thus, there is no evidence direct or indirect, to show that accused Sarabjeet was even present in the room, where deceased Sh. Kripal Singh was killed. Prosecution case shows that the other articles of the room were scattered and one almirah was also broken. Prosecution alleged that a licensed revolver of Sh. Kripal Singh was also stolen. PW-22 had taken accused Sarabjeet in police custody with purpose to recover this pistol as well. Allegedly, Sarabjeet was taken to Punjab for recovery of this pistol. In Punjab, according to PW-22, they went to house of one Sh. Ajeet Singh to recover this revolver, however, Sh. Ajeet Singh was found to be not present by the IO. IO returned back without making further attempts to either search the house of Sh. Ajeet Singh or to join him later on in further investigation of this case. IO even did not obtain the record from concerned department, to show that there was actually a revolver possessed by deceased Sh. Kripal Singh, for which he had obtained license as well. IO admitted that the mobile phone of the deceased was missing. It was suggested to him that accused Page no. 21 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 Sarabjeet had given him every information about mobile phone of the deceased, but he denied this suggestion. Though, he admitted that he had recorded statement of accused Sarabjeet under Section 161 Cr.P.C. before his arrest. It is relevant to mention here that it is admitted by the IO that accused Sarabjeet had been appearing before him as and when called for the purpose of investigation. IO had arrested him on 28.04.2008, though, the incident had taken place on 30.11.2007. It is admitted case of IO that a sister of Sarabjeet i.e. daughter of the deceased was also residing in Delhi, but he did not examine her at all. IO even did not examine any other family member of deceased. All of sudden, PW-9 made allegations against accused Sarabjeet in January 2008 and later on, IO formed his opinion that Sarabjeet had killed his father.
39. PW-9 had alleged that accused Sarabjeet had ill eye over the property of his father i.e. G-52, Gokalpuri, Delhi. He also made allegations that in the past i.e. in the year 1999, accused Sarabjeet had obtained GPA and other papers from his father, in respect of property no. G-52, Gokalpuri, Delhi on false representation. However, his father cancelled this GPA and Will in the year 1999 itself. PW-8 was examined in this respect, who allegedly had given a notice to accused Sarabjeet in the year 1999 to intimate cancellation of these documents. However, according to PW-8 that notice was received back with note of 'refusal', which was handed over by him to deceased Sh. Kripal Singh. Such undelivered envelope was not recovered by the IO from the house of Sh. Kripal Singh nor was it proved or produced before the Court. If for a Page no. 22 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 moment, I assume that accused Sarabjeet had obtained such GPA and other documents from his father, which were cancelled by his father, I do not find any relevance of such facts herein because these facts with added allegations of ill-motive to grab the property bearing No. G-52 Gokalpuri, cannot lead this Court to believe and assume that accused Sarabjeet killed his father. Motive, howsoever strong may be, cannot substitute the actus-reus. There has to be evidence to connect accused Sarabjeet with the death of his father. Unfortunately, no such evidence was obtained by IO. IO opted to rely upon the alleged disclosure statement given by accused Surender and this accused. There is no evidence to even establish that a wooden instrument was used to kill the deceased.
40. I also find that the statement of PW-1 allegedly given before IO under Section 161 Cr.P.C. does not inspire any confidence because such statement is silent in respect of natural conduct of a person. As per statement under Section 161 Cr.P.C, this witness did not have any place to sleep during that cold night. He had met Surender and knew him. On 30.11.2007, he came to A-45, M.S. Park, where Surender used to reside. He saw Surender and Sarabjeet coming outside that house and having conversation. He could also hear their conversation and gave a call to Surender, but Surender did not listen. Thereafter, he returned back. At that time, he had seen a wooden 'thapi' in the hands of Sarabjeet, with something of red colour on it. First of all, it was not possible that if this witness would have given a call to Surender, then he would not have heard the same. If this witness was at such a Page no. 23 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 distance with Sarabjeet and Surender, so as to even see in the night that the wooden 'thapi' in the hands of accused Sarabjeet was having something of red colour on it, then this witness must would have been within range of hearing of Sarabjeet and Surender. This witness would have followed Surender to take resort / night shelter or to at least meet him and make his request instead of leaving that place. IO believed such statement which, on the face of it, is very unconvincing if actually given by PW-1. IO did not bother to verify correctness of such statement. As before this Court, even so much of statement was not given by PW-1, therefore, I find that there is complete absence of any evidence to connect accused Sarabjeet even with place of offence of murder.
41. As far as reliability of recovery proceedings is concerned, defence counsel had strongly challenged the same pointing out the contradictory statements given by different members of raiding team. I also on perusal of statement given by PW-11 H.C. Manoj, PW-17 Sheoveer Singh, PW-20 ASI Rishi Pal, PW-21 Ct. Narender and PW-22 IO, find that their statements suffer from material contradictions. Admittedly, IO did not join any official of RPF or Railway Department in the raid conducted at Shahdara Railway Station. IO allegedly received such information from secret informer. It was an easy task for the IO to join officials from GRP or RPF or any other official of Railway Department, in his proceedings conducted against accused Surender, but he did not do so, for reasons best known to him. What I can observe in this respect is that, this was in violation of the settled norm Page no. 24 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 that investigating agency must join independent witnesses to such proceedings.
42. It is also very strange that IO had already called the Sarabjeet at police station on same date i.e. 27.04.2008, by virtue of a notice under Section 160 Cr.P.C. Until unless IO would have been sure about arrest of Surender, it was not a normal act to issue a notice under Section 160 Cr.P.C. to Sarabjeet even for the purpose of confronting him with Surender. It must be borne into mind that while calling Sarabjeet to appear in police station through notice, IO did not have the alleged disclosure statement given by Surender. IO did not explain that why he had issued such notice in advance to Sarabjeet. IO even did not prove the notice on the record. But as shown by the IO, he was so much fortunate that he could find Surender at Shahdara Railway Station and was also able to arrest him and, thereafter, Surender also gave disclosure statement to tell him that Sarabjeet was the actual murderer and, thus, the case was solved overnight. IO, despite having disclosure about actual murderer, resisted natural instinct of an investigating officer to interrogate that murderer instantly, and he could defer interrogation of Sarabjeet till morning and could have a sleep.
43. According to all members of this police team, they went to A-45, M.S. Park along with accused Surender, after his arrest at Shahdara Railway Station. They could enter this house, because it was not locked. According to these witnesses, the house was simply bolted with a latch. However, IO/PW-22 admitted that photographs Ex.PW-22/DX-4 to Ex.PW-22/DX-8 show true and correct picture of entrance gate of this Page no. 25 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 property. From these photographs, it is well apparent that there was no door with a latch, as claimed by these witnesses. IO despite being confronted with these photographs, did not advance any clarification in respect of gate/door of this property. Even otherwise, it is absurd to hear that this property would have remained unlocked since 30.11.2007 up to 27.04.2008.
44. Thereafter, police team allegedly returned to police station at around 01:00 AM. By this time accused Sarabjeet had already arrived in the police station and he was present in the police station during those odd hours. PW-22/IO deposed that he took rest till 06:30 AM and, thereafter, he arrested Sarabjeet in the morning. I am unable to understand that under which provision accused Sarabjeet was detained in police station for whole night, even without interrogation by the IO. As already observed herein above, before arrest of Surender IO did not even know that name of Sarabjeet would be disclosed by Surender to be murderer of his father. IO had not obtained any such evidence to be sure that Sarabjeet would be murderer of his father, except certain documents related to title of property held by deceased and as handed over to him by PW-9. These documents could have at the most shown existence of a civil dispute between PW-9 and Sarabjeet. It is well established on the record that both these brothers had various kind of litigations in Punjab and Delhi, having genesis in a dispute for property. As already admitted by IO, Sarabjeet had been attending police station to join the investigation and, therefore, in all probability whenever IO would have asked Sarabjeet about the allegations made by PW-9 and Page no. 26 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 about the documents presented by PW-9, then Sarabjeet would have narrated his stand regarding such dispute. Thus, before alleged. disclosure of Surender, there was no basis for IO to arrest Sarabjeet. In such background, the coincidence to show that Surender and Sarabjeet were arrested one by one within 10 hours, is something not found to be in very natural course of action.
45. The defence plea of artificial nature of such proceeding gets boost from the contradictory statement given by different members of raiding team. When PW-11 HC Manoj was examined in the Court, he deposed that accused Surender had similar physique as he had at the time of his arrest. The ring with green stone, which was allegedly belonging to deceased and recovered from Surender, did not fit into any finger of Surender, when it was so tried in the Court on the request of defence counsel. The Court observed that this ring could somehow hold in the middle finger of his left hand. Though, it was otherwise not fit. At that time, the Court made an estimate of probable weight of accused Surender at around 50 Kg. The postmortem report of the deceased mentioned the weight of deceased to be 120 Kg. The sharp difference between weight of deceased and Surender assumed importance, because it has been alleged that Sarabjeet took out ring from the finger of deceased and gave it to Surender, which was later on recovered by the police. A ring, which could fit in the fingers of well built deceased, could not have fitted in the fingers of Surender. In that situation even middle finger of Surender could not have hold such ring. Another aspect related to it is that if this ring was not easily fit in the finger of Page no. 27 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 Surender, then how and why he would wear the same and travel all the places and would also undertake a rail journey. Thus, it is not at all a probable act either on the part of Surender to wear such ring or for such ring to be one which would have been worn by the deceased. It is relevant to mention here that according to PW-22/IO it was PW-9, who had told about such facts i.e. that deceased used to wear a golden bangle (karaa) and rings. PW-9 though identified that golden bangle and this ring during their TIP conducted by ld. MM i.e. PW-12. However, when these articles were produced before the Court, PW-9 did not identify them. All these evidences would show that this ring was not recovered from accused Surender and there is more probability of this ring being planted upon him.
46. Another aspect of contradictory statements is that PW-11 HC Manoj deposed that when accused Sarabjeet led them to his house bearing no. A-88, Ramprasth, U.P, then accused took out a key and opened the door of his flat on the 2nd floor. However, PW-17 Ct. Sheoveer deposed that some other person came out and opened the door. On the other hand, PW-22/IO deposed that one Mr. Manchanda was called from up stairs, who opened the door of this flat. It is needless to say that three different persons could not have opened the door of this flat. This fact was not something, which could have created any confusion in the minds of different members of police team. Therefore, such contradiction shows that such diverse statements came because of artificial story being propagated.
47. Another aspect is that PW-17, PW-20 and PW-21 deposed that Page no. 28 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 Sarabjeet took out certain documents and two pieces of golden bangles from 2 nd drawer of office table, but later on, during their cross- examination, all three of them modified their statement to be in consonance with other witnesses that Sarabjeet had taken out these articles from 2nd drawer of a rack/almirah. Once again, I find that there cannot be a confusion between a table and almirah, and changing version of these witnesses had its root in the artificiality of proceedings.
48.PW-11 HC Manoj deposed that IO did not ask any one to join that proceeding, but IO/PW-22 claimed that he had asked the neighbourers to join the proceeding, but they declined. IO did not disclose the name of those neighbourers. According to IO, one Mr. Manchanda and driver of their private van were also with him. Therefore, at least these persons could have been joined in the proceeding, but they were also apparently not so joined. Hence, the whole recovery proceeding as projected by IO, comes under heavy shadow of doubt.
49. Now, I would take up the veracity of the contentions of IO and his colleagues that accused Sarabjeet was taken to Punjab in police custody, for recovery of a revolver. According to IO/PW-22, they went to village Bareheta, District Mansa, Punjab with accused Sarabjeet. They left Delhi in the evening of 29.04.2008 at about 07:00-08:00 PM and reached that village at about 06:00 AM next day. Thereafter, they left Barheta on 30.04.2008 at about 01:00-02:00 PM and reached back Delhi at about 02:00-03:00 AM next day i.e. on 01.05.2008. IO claimed that Sarabjeet was medically examined in GTB hospital on 29.04.2008 before leaving Delhi and he was again medically examined on Page no. 29 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 01.05.2008 at about 08:00-09:00 AM. However, IO admitted that he did not place the record of such medical examination of Sarabjeet on the record.
50. On the other hand, DW-11 had obtained record of medical examination of accused under RTI Act from GTB hospital, which were proved by her as Ex.DW-11/Q and Ex.DW-11/R. These are certified copies of five different reports of medical examination of Sarabjeet. The first report pertains to 28.04.2008 at 01:35 PM, when Sarabjeet was produced by Ct. Narender. Another report is dated 28.04.2008 at 04:40 PM, when accused Sarabjeet was produced by Ct. Narender. Thereafter, accused Sarabjeet was produced by Ct. Sheoveer on 29.04.2008 at 05:35 PM. The next report is dated 30.04.2008 at 05:31 PM, when Ct. Sheoveer produced Sarabjeet before GTB hospital and the last one is dated 01.05.2008 at 01:45 PM, when Ct. Narender produced Sarabjeet in the hospital.
51. First of all, if Sarabjeet was in Punjab on 29.04.2008 and 30.04.2008, then he could not have been physically present along with a Constable in GTB hospital for his medical examination. Such record shows that Sarabjeet was not actually taken to Punjab, as claimed by PW-20 ASI Rishipal, PW-21 Ct. Narender and PW-22/ IO. Thus, it is well apparent that these witnesses have given false statement before this Court, regarding taking accused Sarabjeet to Punjab in police custody.
52. The another aspect related to this situation is that in the medical reports no obvious injuries were mentioned till 30.04.2008. However, in the medical examination dated 01.05.2008, conducted at about 1.45 Page no. 30 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 PM, the doctors have reported about 5 injuries on the lower back, right hip, back of thigh, right leg and left leg respectively. Though, these injuries are not shown to be serious or major one and they have been shown in the form of abrasion only, but still question arises that how could such abrasions come on the several parts of body of accused Sarabjeet, when he was admittedly in police custody. Therefore, the false claim of taking Sarabjeet to Punjab seen along with these new injuries appearing on his body, show that IO had not conducted himself as true professional policeman. He had prepared artificial proceedings of police remand regarding such facts and therefore, he could not show any further investigation regarding recovery of alleged stolen revolver of the deceased from Sh. Ajeet Singh. Evidence of such falsity on the part of IO, gives credence to the claim of accused Sarabjeet that he was detained in PS since 25.04.2008 upto 28.04.2008 and was not taken to Punjab thereafter and was physically tortured in police station. Such stand of Sarabjeet is also supported by testimony his witnesses DW-1, DW-2 and DW-11.
53. PW-6 was produced by IO before ld. MM, to record his statement under Section 164 Cr.P.C. It was so recorded by ld. MM, which is Ex.PW-6/A. However, during trial of this case, this witness deposed that he made his statement before ld. MM at the instance of Insp. Ranjit Ekka (IO), one ASI and Amarjeet Singh (PW-9). He denied correctness of facts as mentioned in the statement under Section 164 Cr.P.C. Such U-turn taken by PW-6, at first look appears to be a nasty act. However, when I analyse the statement recorded under Section 164 Cr.P.C, I find Page no. 31 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 that the facts stated in that statement were apparently not witnessed by this witness himself. PW-6, in his statement before ld. Metropolitan Magistrate, had stated that deceased had several immovable properties in Delhi and Punjab. He had given property situated in M.S. Park and U.P. Border to accused Sarabjeet and he had given property in Village-Moonak, Punjab to Amarjeet. According to this witness, deceased had kept one property at Loni Border with him, but Sarabjeet had got that property transferred in his name by playing fraud upon the deceased and when deceased came to know about this, a quarrel had taken place between them. Deceased had made oral agreement for sale of that property for Rs. 70 lacs and Sarabjeet had come to know about the same through servant of the deceased. Sarabjeet had killed Sh. Kripal Singh on 29.11.2007 with the help of his servant and all these facts were told to this witness by that servant. The servant had also told this witness that how Sarabjeet had committed murder of Sh. Kripal Singh and how he had taken out the golden bangle and rings from the hands of deceased and given a ring to the servant. Such kind of statement of this witness itself shows that all the alleged facts did not take place in the presence of this witness. This witness was a resident of Punjab. Therefore, a question arises that how and at which place he could meet servant of deceased. The servant, as per case of prosecution, was missing before he was arrested by IO. In that situation, this witness could have met him only after arrest of Surender. But, such meeting was not possible because Surender was in custody of police and thereafter, he was sent to judicial custody. In any case, Page no. 32 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 statement of PW-6 was merely hearsay evidence. Therefore, version of this witness given during trial of this case is found to be correct statement. I do not find any such material, if collected by IO, to show that the facts stated by this witness under Section 161 & 164 Cr.P.C. could have been within his personal knowledge. In absence of such material, question does arise against IO that how could he rely upon hearsay evidence of PW-6, without seeking supporting evidence to show that the stated facts could have been within his personal knowledge. Such situation makes statement given by PW-6 during trial to be very much possible i.e. that PW-6 was pressurized by IO to give a particular statement before ld. MM, in connivance with PW-9. Apparently, PW-9 was to be beneficiary, if his arc rival i.e. Sarabjeet was implicated in this case. Connivance of IO/PW-22 with PW-9 is also reflected from the fact that after arrest of Sarabjeet, IO did not inform any person from his family viz. sister of Sarabjeet or other family member. He, rather had shown in arrest memo that such information was given to PW-6. IO/PW-22 admitted in cross-examination that PW-6 had no relationship with Sarabjeet and that PW-6 was introduced to him by PW-9 i.e. the complainant. How could IO do so and why he did so, if he was not acting in connivance with PW-9. I do not find any answer in favour of IO from the record, hence, such presumption is raised against him.
54. Apparently, prosecution has not produced any witness, who had pasted the proclamation under Section 82 Cr.P.C. against accused Surender. Accused Surender had a right to cross-examine such witness, in order Page no. 33 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 to challenge the veracity of this report. Therefore, in absence of production of such witness, assumption of guilt under Section 174-A IPC cannot be raised against accused Surender.
55. On the basis of my above stated discussion of evidence produced by the prosecution, I find that prosecution has miserably failed to prove its allegations against accused Sarabjeet and Surender. It is well apparent that prosecution acted merely on the basis of unrealistic evidence and alleged disclosure statements of these accused persons, which is well known to the prosecution to be inadmissible in evidence. Therefore, accused Sarabjeet and Surender are acquitted of all the charges leveled against them.
56. Keeping in view the directions given by Supreme Court in State of Gujrat v. Kishan Bhai etc., Criminal Appeal No. 1485/2008, decided on 07.01.2014, the observations made herein above in paragraph no. 37 to 53 would be worth consideration of ld. Commissioner of Police to initiate departmental inquiry against the IO and his colleagues, who falsely claimed to have taken accused Sarabjeet to Punjab in police custody and who were responsible for physical torture of Sarabjeet. The inquiry would be also required to be conducted against IO for giving misdirection to investigation of this case, in respect of role played by officer at supervisory level and efficacy of supervisory role in the investigation of this case, wherein case was shown to be solved on the basis of flimsy and false evidence. Supreme Court in Sahabuddin & Anr. v. State of Assam (2012) 13 SCC 213 and Gajoo v. State of Uttarakhand (2012) 9 SCC 532, held that the department show have Page no. 34 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No. 562/07 conducted departmental inquiry against the erring investigation officer. While giving directions to initiate such departmental inquiry, the Court further observed that retirement of the concerned official or limitation provided in service rules, shall not come in the way of department, to initiate departmental inquiry against such officials, because such directions were being given by the Court of law. Therefore, such observations made by hon'ble Supreme Court is being mentioned herein for perusal of ld. Commissioner of police, so that the directions to initiate disciplinary action against the erring police officials involved in this case is not ignored on any such point.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 19.07.2014 Additional Sessions Judge (Shahdara), (This judgment contains 35 pages) Karkardooma Courts, Delhi Page no. 35 of 35 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi