Delhi District Court
State vs Sanjay Das on 7 April, 2010
In the Court of Ms. Shalinder Kaur
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 102/09
State versus Sanjay Das
S/o Ram Kisori Das
R/o Village H. No. 236,
Sidharth Nagar, Allhabad (U.P.)
Present Address :
Ram Hanuman Vatika Mandir
Asaf Ali Road, New Delhi.
Case arising out of:
FIR No. : 574/04
Police Station : Kamla Market
Under Section : 323/325/302/34 IPC
Judgment reserved on : 31.03.10
Judgment pronounced on : 07.04.10
JUDGMENT
Case History:
1. Accused Sanjay Das stands trial before this Court for the offences punishable U/s 325/34 & 304/110 IPC. As per prosecution case, the investigations of the case commenced on receipt of DD NO.7A recorded in police station Kamla Market to the effect that one dead body was found lying at Hanuman Vatika Mandir, Asaf Ali Road. SI Ravi Kant with Constable Pramod Kumar reached the place of occurrence where a crowd of public had gathered and a dead body of a person aged around 38 years was found SC No.102/09: State vs. Sanjay Das Page 1 of 25 lying. No external injury was seen on the body which was identified to be that of one Dharmender S/o Nanak Chand. At that time, the eyewitness/ complainant Zulfikar Khan reached there and got his statement Ex.PW11/A recorded. He stated that on 24.12.04 at 1.30 AM, he reached Ram Hanuman Vatika Mandir Piau to drink water. The Piau was closed. On the gate of Mandir, Dharmender whom he knew was arguing with a Sadhu of Mandir and was saying "Being a Sadhu, you do such deeds". Dharmender told him that the Sadhu was doing wrong act with some one near the wall adjacent to Piau. Thereupon the Sadhu went inside the gate. He took the complainant inside the gate and raised suspicion that he had come to steal iron in the Mandir. He called 12 Sadhus and told them to bring the accomplice of the complainant who was present at the gate. The 23 Sadhu boys gave beatings to him with danda and saria and then went out to bring Dharmender. After sometime, they told that they had given 12 lath blows to that accomplice who had went away. Thereafter the complainant in injured condition was laid near the gate. He saw Dharmender was also lying there. Around 3 AM, the complainant got up and went towards "Hamdard Kuraghar" but Dharmender kept lying there. In the morning, public told him that Dharmender was lying dead in front of Mandir. The complainant has further stated that Dharmender died due to the beatings given to him by Sadhus. In the morning, he saw the Sadhu Sanjay Das in the Mandir who had given beatings to Dharmender and to him.
2. Accordingly FIR Ex.PW12/A for offence punishable U/s 302/323/34 IPC was got registered through Constable Pramod Kumar. Crime Team was summoned. The spot was got inspected, postmortem of the dead body was got conducted, exhibits lifted from the place of occurrence were SC No.102/09: State vs. Sanjay Das Page 2 of 25 sent to CFSL. On conclusion of the investigations, the charge sheet for offence punishable U/s 323/325/302/34 IPC was laid.
3. After the case was committed for trial to sessions, vide order dated 06.08.05, charge for offence punishable U/s 323/304/110 IPC was framed against the accused to which he pleaded not guilty. The charge was subsequently amended vide order dated 15.12.05 and the accused was charged for offence punishable U/s 325/34/304 r/w Section 110 IPC.
4. The prosecution examined 17 witnesses in order to substantiate the charge against the accused.
Evidence:
5. PW1 Ravinder Kumar has deposed that on 27.12.04, he was posted in police station Kamla Market as MHC(M). On different dates, the Investigating Officer of the case had deposited case property in the Malkhana which was also sent to CFSL and the entries for the same were recorded in register no.19. The witness proved the entries in the register as Ex.PW1/A & Ex.PW1/B. During crossexamination, the witness admitted that the danda which was deposited in the Malkhana was not sent to CFSL.
6. PW2 W/SI Bhupinder Kaur was posted as Duty Officer on 25.12.04. She has proved the DD Entry No.7A as Ex.PW2/B, recorded by her. She had recorded the Kaymi DD Entries NO.10/A and 11/A which she proved as Ex.PW2/C & Ex.PW2/D respectively. The witness also proved the FIR of the case recorded by her as Ex.PW2/A. The witness was cross examined at length qua the registration of the DD Entries by her. SC No.102/09: State vs. Sanjay Das Page 3 of 25
7. PW3 SI Ashok Kumar has deposed that on 25.12.04, he was posted as SI in Crime Branch, Central District, Pahar Ganj. At about 9.30 AM, he had received a message from the Control Room that a dead body of a person was lying near Hanuman Vatika Mandir, Asaf Ali Road and the Crime Team was required. He along with the staff reached the place of occurrence and found there SI Ravi Kant, Inspector Ajit Singh and other staff. He had inspected the scene of crime but could not develop any finger prints. The witness proved the report prepared by him as Ex.PW3/A. This witness was also crossexamined at length qua the time when the Crime Team had reached the place of occurrence and the report prepared by him.
8. PW4 Constable Bijender Singh deposed that he had taken the copies of the FIR of the case to deliver at the house of concerned Ilaka Magistrate and senior police officials. The said witness was also cross examined regarding the time when he had taken the special reports to be delivered to different officials.
9. PW5 Constable Parmod Kumar had joined the investigations with SI Ravi Kant on receipt of DD No.7A. SI Ravi Kant has been examined as PW15. Both these witnesses have proved the part of the investigations conducted by SI Ravi Kant which shall be dealt with in detail at a subsequent stage.
10. PW16 ACP Ajit Singh was the main Investigating Officer of the case. Inspector Inder Pal Singh was examined as PW12 who had joined the investigations along with ACP Ajit Singh. Their testimony shall also be dealt with subsequently at a later stage.
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11. PW6 SI Manohar Lal, Draftsman has proved the scale site plan Ex.PW6/A, prepared by him of the spot. The testimony of this witness is unchallenged.
12. PW7 Smt. Shakuntala deposed that deceased Dharmender was her nephew. She had received an information from her neighbour Phoolwati about his dead body, lying near Hanuman Vatika Mandir. She reached the place of occurrence and saw the dead body of Dharmender. Sh. Zulfikar Khan a friend of deceased Dharmender was also present there whom she had seen for the first time. Sh. Zulfikar was also badly injured who told her that Sadhus of Hanuman Vatika Mandir had killed her nephew by beating him and had also caused injuries to him. After postmortem, the witness had received the dead body of the deceased vide memo Ex.PW7/B and she had identified the body of the deceased vide memo Ex.PW7/A. During cross examination, the witness was confronted with her previous statement Ex.PW7/A and Ex.PW7/DA, made to the police to show the improvements made in the testimony of the witness.
13. PW8 Rajesh Kumar is the cousin of deceased Dharmender who had identified the dead body of the deceased vide memo Ex.PW8/A.
14. PW9 Dr. Vineet Jain has proved the MLC of Mohd. Zulfikar who had been examined by him on 25.12.04 in LNJP Hospital. He proved his report as Ex.PW9/A. In crossexamination, the witness admitted that the MLC was not in his handwriting and did not bear his signatures. SC No.102/09: State vs. Sanjay Das Page 5 of 25
15. PW10 Dr. Piyush Siwach had examined the XRay plates and gave his report as Ex.PW10/A.
16. PW13 Dr. Vijay Dhankar had conducted the postmortem on the dead body of deceased Dharmender on 25.12.04 at about 12.30 PM. He proved the postmortem report, prepared by him as Ex.PW13/A. The witness deposed that a danda Ex.P1 was shown to him and he had opined that injury no.1 on the body of the deceased could be caused by the said danda.
His subsequent opinion on the postmortem report has been proved as Ex.PW13/B. He had found six injuries on the body of the deceased. The witness opined that out of six injuries, injury no.6 was an old injury. This witness was also crossexamined and he denied that injury no.1 & 2 could be caused by fall. He further deposed that totality of the injuries in this case did not show that the same could be caused due to an accident.
17. PW17 Dr. Chaman Prakash proved the MLC of Mohd. Zulfikar, prepared by Dr. Saifulla as Ex.PW17/A.
18. PW11 Mohd. Zulfikar is the eye witness / complainant of the case. His testimony shall be adverted in detail to at a subsequent stage.
19. PW14 Sh. Lucky Kapoor had taken 1012 photographs of the dead body on 25.12.04 in LNJP Mortuary which he proved as Ex.P14/1 to Ex.P 14/11 (Ex.P2). The witness was crossexamined on behalf of State by Learned APP as he was found to be resiling from his previous statement. The witness deposed that he might have taken the photographs of the dead body on reaching at the spot but due to lapse of time, he was not sure. SC No.102/09: State vs. Sanjay Das Page 6 of 25
20. In the statement recorded U/s 313 Cr.P.C., the accused has denied the case of prosecution and claimed to be innocent. The accused submitted that he has been falsely implicated in this case. He has examined Nitin Goel as DW1, Surender Kumar as DW2 and Ganga Prasad Pandey as DW3 in his defence.
Contentions:
21. On behalf of the State, it was urged by Learned APP that the case of the prosecution rests on direct eye witness account. The deceased was known to PW11 Mohd. Zulfikar. The witness, PW11 Mohd. Zulfikar had reached the place of occurrence and had found an argument going on between the deceased and the accused. The accused with the help of other Sadhus in the Mandir had given beatings to the witness with lathis and saria and the deceased was also beaten in the same manner. The witness Zulfikar received grievous injuries but Dharmender had died due to the injuries given to him. It was argued that in the morning on the next day, the dead body of Dharmender was found lying in front of the Mandir. The police was accordingly informed which conducted prompt investigations. On the identification of PW Zulfikar, the accused was arrested.
22. It was submitted that the defence is mainly relying upon certain contradictions appearing in the testimony of the eye witness which are minor in nature and are bound to occur due to lapse of time. The police witnesses have proved the investigations conducted by them. Thus, prosecution has been able to establish its case beyond reasonable doubt against the accused.
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23. Per contra, on behalf of the accused, it was vehemently argued that the FIR is anti time and PW11 is a planted witness. To support this argument, the Learned Counsel took me through the testimony of PW2 W/SI Bhupinder Kaur, PW3 SI Ashok Kumar, PW4 Constable Bijender Singh and the Investigating Officer PW16 ACP Ajit Singh. It was argued that in Ex.PW3/A, the Crime Team Report, it has been mentioned that the inspection of the spot was conducted from 9.45 AM to 10.30 AM. Whereas the rukka Ex.PW15/A which was sent at 12.40 PM, mentions that the Crime Team be sent at the spot. Thus, as per rukka by 12.40 PM, the Crime Team had not reached the spot. The document on the face of it shows that either Crime Team Report Ex.PW3/A is manipulated or the FIR was manipulated in this case. PW15 had admitted during his deposition that the rukka Ex.PW15/A had been kept on hold for two hours. The prosecution has failed to give any explanation for the same. The said prosecution move can be further gathered from the fact that PW11 Mohd. Zulfikar, the eye witness was examined in the hospital at 4 PM. In the application, moved for his examination, neither the DD number nor the FIR number has been mentioned which established that till 4 PM, the FIR of the case was not registered. To achieve this purpose, the investigating agency has planted PW11 Mohd. Zulfikar as an eye witness. From his MLC Ex.PW9/A, it is apparent that he was not a resident of Delhi but was residing in Bihar. The witness could not give any cogent reply regarding his place of residence and work place in Delhi. More so, the conduct of the witness does not inspire confidence that he is a truthful and reliable witness. Various contradictions were pointed out in the deposition of PW11 Mohd. Zulfikar to bring forth the argument that his testimony is worthless.
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24. It was urged that besides these glaring defects in the investigations, even otherwise, the prosecution case is completely unreliable. It is not possible that a person would be beaten at an important place like in front of Hanuman Vatika Mandir and same would go unnoticed by some one. As near the place of occurrence, public keeps on passing round the clock and guards are present on duty even during night at nearby important offices. It was thus, argued that prosecution case is nothing but an attempt made by the police to solve a murder case in which it has falsely implicate the accused.
Findings:
25. The prosecution is relying upon the direct eye witness account, deposed by PW11 Mohd. Zulfikar. The testimony of this witness has been challenged on behalf of the accused submitting that his presence at the place of occurrence is doubtful. It was contended that PW11 Mohd. Zulfikar has deposed that he reached Hanuman Vatika Mandir at 1.30 AM as he was coming from Shastri Park where there was a party. However, DW2 Surender Kumar has deposed that he had filed a RTI application Ex.DW2/A before Public Information Officer, Department of Commissioner of MCD. As per Ex.DW2/C, the said Shastri Park was not booked for 24.12.04 & 25.12.04. Thus, it falsifies the plea raised by the PW11 Mohd. Zulfikar that he came from Shastri Park. Moreover, the witness has also admitted that Shastri Park is towards Hamdard Chowk and there are various Piaus and taps on the way from where, he could have taken water.
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26. Although in Ex.DW2/C, it is mentioned that Shastri Park near Ramlila Mandir was not booked for 24.12.04 & 25.12.04 yet it does not lend any support to the defence of the accused to dispute the presence of the witness at the place of occurrence as no official from MCD has been summoned in defence to depose about this fact. Moreover, Ex.DW2/C does not bear the seal/ stamp of the MCD Office nor the signatures of the Deputy Commissioner, City Zone has been authenticated. Even otherwise, if it is presumed that Ex.DW2/C is a genuine document but from the said document, it is only established that as per record, the said park was not booked for any function but it cannot be presumed that no function could have been privately engaged in the park on the said day.
27. It was argued that the PW11 Mohd. Zulfikar was not even a resident of Delhi as he could not assign a reason for not disclosing his local address of Bazar Sita Ram to the doctor who had prepared his MLC but had rather given his address in Bihar. Further more, from the testimony of this witness, it is evident that he had never resided at the address H.No.1608, Bazar Sita Ram, Delhi, as stated by him in his statement Ex.PW11/A as he could not even tell the total storeys of the building in which he was residing. He could not produce any document to show that he had ever resided there. Thus, to say that PW11 Mohd. Zulfikar had gone to Hanuman Vatika Mandir at 1.30 AM is not believable.
28. From the evidence of PW11 Mohd. Zulfikar, it emerges that he was a vagabond. He has deposed that prior to living at H.No.1608, Bazar Sita Ram where he resided with his friend for three months as his friend was a tenant in that premises. He has no permanent address. He used to sleep SC No.102/09: State vs. Sanjay Das Page 10 of 25 on the road and at whatever place, he used to get. The testimony of this witness further reveals that he had worked with one Tej Ram Tandoor Wala for about 89 months prior to the incident and had left him after the incident. Prior to that he used to work for some sweepers. From the deposition of PW11 Mohd. Zulfikar, it also emerges that he has been well acquainted with the area around the place of occurrence as he has deposed that Hanuman Vatika Mandir was situated between Turkman Gate and Hamdard Chowk. He has further deposed that there is a MCD Office, a DCP Office and Delhi Police Bhawan in front of and near the Mandir. It has also come in the cross examination of this witness and he has admitted that in the morning during winter days, free tea is served outside the temple by the temple authorities. He deposed that many a times, he had taken tea outside the Mandir. Thus, it becomes apparent that PW11 Mohd. Zulfikar was a frequent visitor near the Mandir and being a vagabond, the presence of this witness cannot be disputed at the place of occurrence during night time at about 1.30 AM. Moreover, he has further deposed that the deceased Dharmender was known to him prior to the incident. Dead body of Dharmender was found lying in front of the Mandir and the temple people had informed the police about it. On arriving at the place of occurrence, PW3 SI Ashok Kumar, PW5 Constable Pramod Kumar, PW12 Inspector Inder Pal Singh, PW15 SI Ravi Kant and PW16 ACP Ajit Singh had found the dead body there. PW11 Mohd. Zulfikar has not been crossexamined qua the fact that he and the deceased were not known to each other. Thus, the fact that the deceased was known to PW11 Mohd. Zulfikar and his dead body was found lying there further strengthens the presence of this witness at the time of occurrence. SC No.102/09: State vs. Sanjay Das Page 11 of 25
29. An argument was addressed that PW11 Mohd. Zulfikar has raised contradictory version, he has deposed that he had gone to the Mandir to take pardon. Whereas subsequently, he has deposed that he had gone there to drink water from the Piau. PW11 Mohd. Zulfikar in reply to a Court question has clarified the contradiction. He stated that he had not gone there to take pardon but had gone there to take water. Moreover, once the presence of the witness has been established at the place of occurrence, then the pointed out contradiction merely becomes minor in nature.
30. There is not much substance in the argument raised on behalf of the accused that PW11 Mohd. Zulfikar was not a resident of Delhi as he had given a fake address of Delhi when his statement Ex.PW11/A was recorded. Whereas in the MLC Ex.PW9/A, he has mentioned his address in Bihar. As the witness was a vagabond and did not have a permanent address in Delhi, therefore, it is quite understandable that he had given his permanent address to the doctor which is in Bihar. In his statement Ex.PW11/A, he had given his both addresses i.e the permanent address in Bihar as well as his temporary address in Delhi. PW16 Investigating Officer ACP Ajit Singh has also deposed that PW11 Mohd. Zulfikar was permanent resident of Bihar and was locally residing in Bazar Sita Ram.
31. It was further submitted that the testimony of PW11 Mohd. Zulfikar is full of contradictions as in his statement Ex.PW11/A, he has deposed that accused had pulled him inside the Mandir and had raised a suspicion that he came to the Mandir to commit theft. He called 12 Sadhus and 23 Sadhus gave beatings to him with danda and saria due to which he had sustained injuries. Whereas in his deposition, made before the Court, he has deposed SC No.102/09: State vs. Sanjay Das Page 12 of 25 that he was dragged inside the Mandir and was taken to the first floor where he was given beatings. In the deposition of PW11 Mohd. Zulfikar, it has come that the place where he was beaten was open to sky and it was an open place after climbing some stairs and was surrounded by some rooms. As per the site plan Ex.PW16/A and scale site plan Ex.PW6/A, the place where the witness had been beaten is shown to be an open place inside the Mandir. As such, there is no contradiction between the statement Ex.PW11/A of PW11 Mohd. Zulfikar, made to the police and his deposition made in the Court. As per both the statements, the witness was beaten inside the Mandir. In the deposition, he has specified it further that it was an open place after climbing some stairs.
32. It was argued on behalf of the accused that the testimony of PW11 Mohd. Zulfikar is not believable as he has admitted that he had consumed a lot of liquor on the day of occurrence. Moreover, he was admittedly a drug addict. Therefore, his testimony cannot be believed. The said argument is of not much help to the accused. Merely because the witness was drunk or was a drug addict, the same cannot be said to reason to discard his testimony if otherwise he was in fit state to comprehend the incident. It has not been shown being under the influence of liquor, the witness was not in fit state of mind.
33. During the course of arguments, the identity of the accused was also challenged. It was stated that PW11 Mohd. Zulfikar had identified that person as accused who was wearing a gold chain and a black thread on his ankle. However, from the personal search of the accused, no such articles were recovered. More so, PW11 Mohd. Zulfikar has also admitted that all the SC No.102/09: State vs. Sanjay Das Page 13 of 25 Sadhus in the Mandir were having similar types of mustaches and beard. It was submitted that the witness has made improvements in his deposition by deposing that he had told the police that the accused was the same person who was wearing a gold chain and a black thread. Whereas he had never mentioned so in his statement Ex.PW11/A. During crossexamination, as such, the identity of the accused has not been challenged. In the FIR Ex.PW2/A which had been registered on 25.12.04, the accused has been named and the alleged incident is stated to have been taken place on the night intervening 24/25.12.04.
34. Although PW11 Mohd. Zulfikar has deposed that he had seen the Baba who had killed the deceased and that he was wearing a gold chain and black thread on one of his ankle yet no gold chain or black thread has been seized during the personal search of the accused which was conducted vide memo Ex.PW5/B. However, the said fact is irrelevant because as per the deposition of the witness, he had not identified the accused only because of his gold chain and black thread. He has refuted the suggestion that when he was called by the police, inside the Mandir, the accused was already detained in the Mandir in a room. The witness has testified that he had already told the police officials on the gate that the accused was involved in this case and he had identified him after entering the main gate of the Mandir. He has also refuted the suggestion that he could identify the accused because of his gold chain and black thread on his ankle and not from his face. Moreover, as per scale site plan Ex.PW6/A, point B has been shown to be the position of the main gate where the deceased Dharmender was having an argument with the accused. At point E, an electric tubelight is shown on the gate. Similarly, the central verge on the side of the Mandir is SC No.102/09: State vs. Sanjay Das Page 14 of 25 also well lighted with street light. The open place where the witness is stated to have been beaten is also well lighted with electric bulbs at three places. Thus, there was sufficient source of light in which the witness could have seen the face of the accused clearly who had apprehended the witness and the beatings to him were given in presence of the accused. Thus, the argument raised on behalf of the defence, challenging the identity of the accused that he was identified because of a gold chain and a black thread or that PW11 Mohd. Zulfikar was drunk at the time of occurrence is not sustainable.
35. Another argument raised on behalf of the accused was that from the MLC of PW11 Mohd. Zulfikar, it is established that he was not beaten inside the temple but he had sustained injuries at some other place and was later on falsely planted in the present case. It was argued that in the MLC, the alleged history has been mentioned of being beaten by public. The MLC Ex.PW9/A reveals the alleged history as told by the brought by who is Constable Devi Sahai "patient was beaten by public". After PW11 Mohd. Zulfikar was examined in Casualty in LNJP Hospital, he was referred to Orthopedic Emergency for opinion and for needful. When he was produced in Orthopedic Unit, "the alleged history of assault by some Sadhus is mentioned" on the MLC of the complainant. It clarifies that although Constable Devi Sahai who had taken the injured PW11 Mohd. Zulfikar to the hospital, had given the alleged history as beaten by the public but PW11 Mohd. Zulfikar had himself told the doctor about the assault given to him by some Sadhus. Therefore, the alleged history of being beaten by the public does not lend any support to the defence raised by the accused. SC No.102/09: State vs. Sanjay Das Page 15 of 25
36. The next argument raised by the defence is that PW11 Mohd. Zulfikar was a drug addict and he was kept in the police station for 34 days and that is how he was planted in this case. PW11 Mohd. Zulfikar has deposed that he did not remember the time when he was taken to police station but he remained there for 34 days. He was unable to take food with his own hands and had gone to the hospital from the police station. As per the documents on record, after registration of FIR Ex.PW2/A at about 12:55 PM. PW11 Mohd. Zulfikar was brought to the hospital at 4 PM on 25.12.04 which is evident from the MLC Ex.PW9/A. The witness has also testified that after about 10 days of the incident, he had left for his village and during those 10 days, he remained with his relatives and friends. Thus, it seems that there has been some misunderstanding when the witness has deposed that he had remained in the police station for 34 days. PW16 ACP Ajit Singh has deposed that PW11 Mohd. Zulfikar did not remain in the police station for 34 days after the day of occurrence. He went his own way after his medical examination.
37. Another argument was also raised on behalf of the accused that the testimony of the witness is self contradictory as vide his statement Ex.PW11/A, he had stated to the police that he had left the place of occurrence at 3 AM but in his deposition, he has denied this fact. To the contrary, he has deposed that he had regained his consciousness at about 5 AM and he did not see Dharmender lying near the gate when he woke up. He kept on sitting in the verandah opposite to Mandir from 5 AM to 7.30 AM. Whereas as per testimony of the police witnesses, PW11 Mohd. Zulfikar came again at the place of occurrence in the morning after the police had arrived there. It was also urged that although PW11 has admitted that there SC No.102/09: State vs. Sanjay Das Page 16 of 25 was a police post Turkman Gate, still he did not make an effort to lodge a complaint with the police or to go to the hospital for medical help. It was argued that it is unbelievable that a dead body was lying in front of a Mandir since 1.30 AM and same was not seen by any passerby or by the guards in front of MCD Office, Police Bhawan or ATM. Moreover, even the public who came to the Mandir in the morning also did not see the dead body can also not be believed.
38. From the testimony of PW11 Mohd. Zulfikar, it is established that he is a vagabond. He has also admitted that he was a drug addict. On the day of the occurrence, he was under the influence of liquor and after he was beaten up, he lost his consciousness. May be when he regained his consciousness, he was unable to notice Dharmender lying on the road. Being a vagabond, it may not have occurred to him to go to the police to report the matter. Further more, he would not have been aware about the time that whether it was 3 AM to 5 AM in the morning when he had regained his consciousness. Further more, as per photographs on record, deceased Dharmender also seems to be a vagabond. Usually the drug addicts and vagabonds sleep near temples and other religious places quite till late in the morning. So, even if the public notices them, they do not pay any attention. This also gets strengthens from the testimony of DW1 Sh. Nitin Goel. He has admitted that he had noticed one person lying near the Piau and he thought he must be a drug addict who would get up and go. It was only after a passage of time when the deceased did not get up a report was made to the police.
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39. Much criticism has been raised that the FIR was anti time and all the documents were fabricated to falsely implicate the accused. It was submitted that the report Ex.PW3/A of the Crime Team shows that they had inspected the place of occurrence from 9.45 AM to 10.30 AM. Whereas as per DD Entry No.11 Ex.PW2/D, it has been mentioned at 1.40 PM the Crime Team and photographer be sent at the spot. It was also argued that PW4 Constable Bijender has deposed that he had delivered the special report to the area Magistrate at 2 PM. Whereas as per the endorsement made by the Learned Magistrate on FIR Ex.PW2/A, the said special report had been received at 9.20 PM on 25.12.04. The prosecution has not been able to explain the said major lacuna and even the Investigating Officer PW16 ACP Ajit Singh and PW15 SI Ravi Kant could not clarify about it. Thus, it demolishes the case of the prosecution.
40. From the documents Ex.PW3/A and Ex.PW2/A, discrepancy regarding time of inspection of place of occurrence can be seen. Nevertheless, from these documents, it cannot be disputed that PW11 Mohd. Zulfikar did not receive injuries or deceased Dharmender did not meet with a homicidal death. Whether the said defect in investigation can wash away the crime or involvement of the accused is to be considered.
41. In the judgment reported as Karnel Singh vs. State of MP MANU/SC/0497/1995, it was held : In many cases of defective investigations, the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the SC No.102/09: State vs. Sanjay Das Page 18 of 25 hands of the investigating officer if the investigation is designedly defective. In Paras Yadav and Ors. vs. State of Bihar MANU/SC/0009/1999 : while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not.
Similar view was taken in Ram Bihari Yadav vs. State of Bihar MANU/SC/0302/1998 : when this Court observed that in such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people nor merely in the law enforcing agency but also in the administration of justice.
42. On deriving support from the above cited judgments, these omissions on behalf of investigating agency do not help the defence as there was no reason for the police and PW11 Mohd. Zulfikar to falsely implicate the accused in the present case. No strained relationship between the accused and PW11 Mohd. Zulfikar has been shown. Moreover, the accused has taken a very remote defence that since the police had entered the premises of the temple with shoes and it was objected by the Mandir authorities, so, the accused has been falsely implicated in this case. The said defence appears to be very farfetched as it has already been admitted that there were many Sadhus present in the Mandir. No reason has been assigned that why the police will implicate only the accused in this case. SC No.102/09: State vs. Sanjay Das Page 19 of 25
43. Now, coming to the charge as framed for offence punishable U/s 304 r/w Section 110 IPC. PW11 Mohd. Zulfikar has stated to the police in his statement Ex.PW11/A that after he was taken inside the Mandir by the accused, he had told, the other one or two Sadhus who had come there, to bring Dharmender inside the temple. After sometime, they came and told that they had given one or two lath blows to Dharmender who had gone from there. PW11 Mohd. Zulfikar has deposed that after the accused had dragged him inside the Mandir and took him to the first floor, Dharmender remained standing near the Piau. The accused had called 34 other Sadhus and asked them to beat him and also instructed the other Sadhus to beat Dharmender who was standing near the Piau. After sometime, 23 Sadhus came and the Sadhus who were beating him asked them what had happened to the other boy, they replied that Hamne Uska Kaam Tamam Kar Diya Hai.
44. In the statement of PW11 Mohd. Zulfikar Ex.PW11/A, made to the police, on the basis of which FIR Ex.PW2/A is registered, it is mentioned that accused had directed the other Sadhus to bring Dharmender inside the Mandir. What actually, he wanted to do with him is not mentioned. On the other hand, PW11 Mohd. Zulfikar has deposed that he had instructed the other Sadhus to beat Dharmender who was standing near the Piau. Thus, from the evidence, it emerges that the accused had remained inside the Mandir and he did not go outside the temple. Moreover, it is further revealed that when PW11 Mohd. Zulfikar had reached the place of occurrence, Dharmender was already having an argument with the accused, still he was not taken inside the Mandir by the accused is also strange. SC No.102/09: State vs. Sanjay Das Page 20 of 25
45. From the testimony of PW11 Mohd. Zulfikar, it emerges that the accused had instructed the other Sadhus to beat Dharmender. It has not been clarified that how the accused came to know the name of the deceased as Dharmender and whether he was still standing near the Piau after the accused came inside the Mandir and also took PW11 Mohd. Zulfikar with him. The witness has also made a major improvement by deposing that 34 Sadhus came inside and the Sadhus beating him asked them that what had happened to the other boy, they replied that Hamne Uska Kaam Tamam Kar Diya Hai.
46. Thus, from the testimony of PW11 Mohd. Zulfikar, it is revealed that there were two groups of Sadhus; one which had been giving beatings to him and the other had gone outside to beat Dharmender. The said fact is a major improvement over the earlier statement made by the accused. As the prosecution case is that after calling 12 Sadhus, accused had instructed them to bring the companion of PW11 Mohd. Zulfikar inside. The 23 Sadhus after giving beatings to him went outside. The accused himself had remained inside the temple and did not go out. Rather Learned APP had asked a leading question to PW11 Mohd. Zulfikar while recording his examinationin chief that whether the accused had went along with other Sadhus down stairs and the witness replied in affirmative. Thus, from this suggestion also, it is apparent that the accused had remained inside the temple.
47. Accordingly, the prosecution has failed to prove the influence or the instigation as given by the accused. As the accomplices of the accused did not immediately go to bring Dharmender inside the Mandir in itself shows that how much influence and instigation remained for the accomplices to act SC No.102/09: State vs. Sanjay Das Page 21 of 25 as desired by the accused. The prosecution has failed to prove the requisite knowledge and intention as punishable U/s 304 IPC. Thus, the prosecution has not been able to establish the role of the accused as punishable U/s 304 r/w Section 110 IPC. The accused is acquitted from the said charge.
48. However, the prosecution has proved beyond reasonable doubt that the accused had formed a sufficient common intention with his accomplices for causing grievous hurt to PW11 Mohd. Zulfikar. Accordingly, the accused is held guilty and is convicted U/s 325/34 IPC for the same. Announced in the Open Court On 07.04.2010.
(Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.102/09: State vs. Sanjay Das Page 22 of 25 In the Court of Ms. Shalinder Kaur Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 102/09
State versus Sanjay Das
S/o Ram Kisori Das
R/o Village H. No. 236,
Sidharth Nagar, Allhabad (U.P.)
Present Address :
Ram Hanuman Vatika Mandir
Asaf Ali Road, New Delhi.
Case arising out of:
FIR No. : 574/04
Police Station : Kamla Market
Under Section : 323/325/302/34 IPC
Judgment pronounced on : 07.04.10
ORDER ON SENTENCE:
1. Heard on the point of sentence.
2. It is submitted on behalf of the convict that he is a Sanyasi and is doing Sewa in the Mandir since last 2530 years. The convict is not involved in any other case. Since, the year 2004, he had been regularly appearing in the Court and bear good conduct. There is no complaint of any threatening or intimidating any person by the convict after the incident. Thus, keeping in view the said conduct and his antecedents, a very lenient view be taken against him. SC No.102/09: State vs. Sanjay Das Page 23 of 25
3. Learned APP submits that the injured was given beatings on the instigation and instructions given by the convict, thus, he does not deserve any leniency.
4. In view of the antecedents of the convict and the circumstances of the case, placed before me, I sentence him for offence punishable under section 325/34 IPC to RI for seven months. He is also directed to pay a fine of Rs.200/, in default SI for 15 days. Benefit of section 428 Cr.PC be given. Copies be given free of cost to the convict.
Announced in the Open Court On 07.04.2010.
(Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.102/09: State vs. Sanjay Das Page 24 of 25 State Vs. Sanjay Das FIR No. 574/04 PS : Kamla Market SC No. : 102/09 07.04.10 Present : Sh. Mohd. Iqrar, Learned APP for State.
Accused on bail with Counsel Sh. Anupam S. Sharrma.
Vide judgment announced of even date on separate sheets, the accused is acquitted from the charge for offence punishable U/s 304 r/w Section 110 IPC. He is convicted for offence punishable U/s 325/34 IPC.
Arguments heard on point of Sentence.
Vide Order on Sentence announced of even date on separate sheets, the convict is sentenced for offence punishable under section 325/34 IPC to RI for seven months. He is also directed to pay a fine of Rs.200/, in default SI for 15 days. Benefit of section 428 Cr.PC be given. Copies be given free of cost to the convict.
Report of the Reader has been called to state for which period the convict had been in custody. Report of the Reader seen, according to which the convict had been in custody w.e.f.25.12.04 till 06.08.05. Reader has also reported that the convict has deposited the amount of fine imposed. Thus, as the convict has already spent the period of sentence in custody, he need not be taken into custody. Bail bond stands canceled and surety be discharged.
File be consigned to Record Room.
(Shalinder Kaur) ASJ FTC (Central) : Delhi.
07.04.10 SC No.102/09: State vs. Sanjay Das Page 25 of 25