Delhi District Court
State vs . Naval Kishore @ Nawal & Ors. on 12 October, 2012
State Vs. Naval Kishore @ Nawal & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 11/11
ID No: 02401R0176402011
FIR No. : 03/11
PS. : Anand Parbat
U/S : 302/34 IPC 25 &
27 Arms Act
STATE
VERSUS
Naval Kishore @ Nawal
S/o Rajender Prashad
R/o H. No. 5/575, Gali No. 5, Punjabi Basti,
Anand Parbat, New Delhi. ........Accused No. 1
Devender @ Pappu
S/o Ram Prashad,
R/o H. No.3/98, Gali No. 5, Punjabi Basti,
Anand Parbat, New Delhi. ........Accused No. 2
Chander Prakash @ Chhotu
S/o Ram Prashad,
R/o H. No. 3/98, Gali No. 5, Punjabi Basti,
Anand Parbat, New Delhi. ........Accused No. 3
Date of Institution : 07.04.2011
Date of Committal to Sessions Court : 21.04.2011
Date of judgment reserved on : 01.10.2012
Date of pronouncement of judgment : 09.10.2012
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State Vs. Naval Kishore @ Nawal & Ors.
AND
SC No. 42/2011 FIR No. : 11/11
ID No. 02401R0501402011 U/s : 25 Arms Act.
PS : Crime Branch
STATE
verus
Chander Prakash @ Chhotu
S/o Ram Prashad,
R/o H. No. 3/98, Gali No. 5, Punjabi Basti,
Anand Parbat, New Delhi. ........Accused No. 3
Date of Institution : 17.03.2011
Date of Transfer to Sessions Court : 18.08.2011
Present Sh. R.K. Tanwar, learned Additional Public Prosecutor for
the State
Sh. S.P. Yadav Advocate, learned counsel for accused
Devender and Chander Prakash
Sh. Raj Pal Singh Advocate, learned counsel for accused
Nawal Kishore
J U D G M E N T:
1. Sessions Cases No. 11/2011 and 42/2011 are the subject matter of this judgment. Sessions case No. 42/2011 was transferred to this Court under the order of Ld. Sessions Judge and was clubbed with the Sessions Case No. 11/2011 on October 21, 2011.
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2. Briefly stated facts of prosecution case are that on January 16, 2011 at about 2.47 AM an intimation was received from police control room that a quarrel had taken place near H. No.15/80, Punjabi Basti, Gali No. 5, Anand Parbat and the said information was recorded vide DD No. 8 A (Ex.PW4/A) and the same was assigned to SI Sunil Kumar, who left for the place of occurrence along with constable Suresh. On reaching the place of occurrence, in-charge of PCR Oscar 59 named HC Krishan Chand met there. Injured Dalip @ Babloo was in unconscious condition and was lying in the PCR Van. PCR Van took the injured to the hospital. Thereafter, SI Sunil Kumar inspected the place of occurrence i.e. in front of H. No. 576 in Gali No. 5, Punjabi Basti, Anand Parbat where blood, one broken wrist watch and two empty cartridges were also found. In the meantime at about 3:50 AM an intimation was received from Lady Harding Hospital (hospital in short) that the injured Dalip @ Babloo had been declared brought dead by the doctor and said intimation was recorded vide DD No. 9A (Ex.PW4/B). SI Sunil Kumar received the said DD through constable Vijender.
(i) On receipt of DD No. 9A, SI Sunil Kumar deputed constable Suresh to guard the place of occurrence whereas he along with constable Vijender left for the hospital. After reaching hospital, SI Sunil Kumar collected the MLC of deceased Dalip @ Babloo wherein doctor had made an endorsement that the patient was brought dead at about 3:20 AM. Doctor had also handed over one pullanda containing the bullet, which was recovered from the clothes of deceased. The same was seized by SI Sunil Kumar. It was alleged that one eyewitness named Virender Kumar also met in the hospital and he got recorded his statement (Ex.PW2/A) to SI Sunil Kumar.
(ii) In his statement, Virender Kumar alleged that on January 16,
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2011 at about 2:40 AM after hearing noise of quarrel/fighting, he opened the door and saw that accused persons, namely Devender @ Pappu, Chander Prakash @ Chhotu and Naval Kishore @ Nawal were beating his brother- in-law (Jija) named Dalip @ Babloo in front of house of Prem. It was stated that the house of Prem was located at the distance of four houses from his room. It was alleged that at that time accused Chander Prakash @ Chhotu (A-3 in short) was having a country made pistol in his hand and he had pointed out the same towards Dalip @ Babloo. Accused Devender (A-2 in short) had caught hold Dalip from behind and accused Naval Kishore (A-1 in short) was beating Dalip @ Babloo by one iron patti. At that time, Dalip was trying to get rid of himself. It was alleged that when he (Virender) led to rescue Dalip, A-3 (Chander Prakash) said "Aaj Iska Khatma Hi Kar Dete Hai", thereafter, A-2 pushed Dalip towards one side and at that point of time A-3 had fired a shot from his country made pistol. He fired two shots at Dalip @ Babloo, consequently, Dalip fell down on the road. It was alleged that thereafter, Virender rushed to the house of his sister Anju (PW3) and they came back at the spot. It was alleged that at that time Dalip was lying unconscious in the pool of blood and accused persons had fled away from the spot. It was alleged that Virender had seen the said incident in the street light. After hearing the noise, neighbours also gathered there and Prem informed the police on 100 number. It was alleged that Virender and Anju had accompanied the injured to the hospital in PCR Van.
(iii) After recording the statement of Virender, SI Sunil Kumar reached the place of occurrence where Crime Team was already there and they inspected the spot; exhibits were lifted; seen of crime was got photographed. Thereafter, SI Sunil prepared a rukka and got recorded an FIR for the offence punishable under Section 302/34 IPC read with Section 25/27 of the Arms Act. Thereafter, investigation was assigned to Insp. B.K. SC No. 11/2011 & 42/2011 Page no. 4 of 80 State Vs. Naval Kishore @ Nawal & Ors.
Singh, consequently, he reached the spot.
(iv) It was alleged that after reaching the place of occurrence, Insp. B.K. Singh prepared a site plan and recorded the statement of witnesses. On January 17, 2011 post-mortem was got conducted on the dead body of deceased, thereafter, dead body was handed over to his relatives
3. It was alleged that on January 20, 2011 a secret information was received to Insp. B.K. Singh that the A-1 (Naval Kishore) and A-2 (Devender @ Pappu) would come towards Anand Parbat from Sarai Rohilla side. Accordingly, a raiding party was constituted and they left from the police station in the search of accused persons. It was alleged that at the pointing out of secret informer, police party apprehended A-1 Naval Kishore and A-2 (Devender @ Pappu). During interrogation, A-1 disclosed that he could get recovered the knife used in the commission of offence and he got recovered the same.
4. It was alleged that on January 21, 2011 an intimation was received from Crime Branch, Sunlight Colony that A-3 Chander Prakash had been arrested in case FIR No. 11/11 under Section 25 of Arms Act wherein he had confessed his involvement in the present case. The said information was reduced into writing vide DD No. 15 A (Ex.PW37/F). Accordingly, investigating officer moved an application for production of the accused and he arrested the accused on January 24, 2011 after seeking permission from the concerned Court. During interrogation A-3 made a disclosure statement about the motorcycle bearing No. DL-6S-U-4670, which was used in the commission of crime and he got recovered the same from Mangol Puri.
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5. The exhibits including recovered fire arm were sent to FSL Rohini for opinion. It was alleged that there was previous enmity between the deceased on the one hand and the accused persons on the other hand as on January 12, 2011 accused persons had threatened the deceased and PW Anju and in this regard DD No. 29 B (Ex.PW3/A) was got recorded.
6. After completing investigation, challan was filed against all the accused persons for the offence punishable under Section 302/34 IPC read with Section 25/27 of the Arms Act.
7. A separate challan was also filed against the A-3 Chander Prakash in case FIR No. 11/11, PS Crime Branch in the concerned Court of Metropolitan Magistrate for the offence punishable under Section 25 of the Arms Act. The said case was transferred to this Court pursuant to the order dated August 18, 2012 passed by the Learned Sessions Judge, accordingly, the case file of FIR No. 11/11 was tagged with the main charge-sheet
8. After complying with the provisions of Section 207 Cr. P.C., the case was committed to the Court of Sessions on April 18, 2011, consequently, the case was assigned to this Court on April 20, 2011. Thereafter, the case was registered as Sessions Case No. 11/2011. On receipt of the case file of FIR No. 11/11 PS Crime Branch, same was registered as Sessions Case No. 42/2011.
9. Vide order dated October 21, 2011 a charge for the offence punishable under Section 302/34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. A separate charge was also framed against A-3 Chander Prakash for the offence SC No. 11/2011 & 42/2011 Page no. 6 of 80 State Vs. Naval Kishore @ Nawal & Ors.
punishable under Section 27 of the Arms Act to which he pleaded not guilty and claimed trial. Since, a charge under Section 25 of Arms Act had already been framed in FIR No. 11/2011, vide order dated 21.10.2011, it was held that evidence recorded in SC No. 11/2011 shall be read in SC No. 42/2011.
10. In order to bring home the guilt of the accused persons, prosecution has examined as many as 38 witnesses. For the purpose of discussion, said witnesses have been classified in the following categories:-
(1) Category A: Material Witnesses:-
PW2 Virender Kumar, complainant and eye witness.
PW3 Anju wife of deceased.
PW6 Prem Kumar, material witness but turned hostile.
PW9 Ramesh Chand, material witness but turned hostile.
(2) Category B: Medical and Scientific Evidence:-
PW17 Dr. Haj Jancy, proved the MLC of deceased.
PW20 Sh. Punit Puri, proved the FSL Reports.
PW35 Dr. Devender Kumar Atal, Assistant Professor, proved
the Autopsy Report.
PW38 Ms. Sunita Suman, Senior Scientific Officer, proved
the FSL Reports.
(3) Category C: Connected witnesses:-
PW4 HC Jai Chand, Duty Officer, proved the FIR and
numerous daily diary.
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PW12 Constable Ajay Pal, deposited the exhibits to FSL.
PW13 Constable Jitender Singh, deposited the exhibits to
FSL.
PW14 HC Phool Singh, MHC(M).
PW15 Constable Sarika, received the information of incident
in the police control room and proved part-I of PCR Form.
PW21 Constable Ved Prakash, Duty Constable at the hospital.
PW34 HC Harprasad, proved part-II of PCR Form.
PW36 HC Krishan Chand, In-charge of Oscar 59.
(4) Category D: Member of Crime Team:-
PW5 Constable Vijay Kumar, Photographer.
PW29 SI Dhan Singh, In-charge, Crime Team.
(5) Category E: Witnesses of Case FIR No. 11/11:-
PW18 Constable Ajay, member of the raiding party
PW19 ASI Suresh Chand, second investigating officer.
PW22 Sh. Sanjay Bhatia, Addl. DCP, proved sanction under
Section 39 of Arms Act
PW25 HC Rajender, investigating officer.
PW26 Constable Sanjay, member of the raiding party
PW27 HC Jag Narayan, MHC(M).
PW28 HC Rojalia, duty officer, proved the FIR No. 11/11.
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(6) Category F: Formal Witnesses:-
PW1 Hoshiyar Singh, identified the dead body.
PW10 Constable Prithvi Raj.
PW16 SI Mahesh Kumar, draughtsman, proved the scaled
site plan.
PW31 Constable Deepak, collected the case property from
SOS Crime Branch.
PW33 HC Harvinder, proved the DD No. 5 and 6.
(7) Category G: Member of Investigating Team:-
PW7 Constable Satender, joined investigation with PW 37
PW8 Constable Rambir, joined the investigation with PW 37
PW11 Constable Suresh, joined the investigation with PW 30
PW23 Constable Jagdish, joined the investigation with PW 37
PW24 SI Bal Mukund, joined the investigation with PW 37
PW30 SI Sunil Kumar, First Investigating Officer.
PW32 Constable Vijender, joined investigation with PW30
PW37 Insp. B.K. Singh, Investigating Officer.
11. Thereafter, accused persons were examined under Section 313 Cr. P.C. All the accused persons admitted in their respective statement that PW 2 and PW 3 knew them prior to incident as they were residing in the same locality. They further admitted that there are 4-5 houses between the house of Prem and room of PW2. Except that they denied each and every other incriminating evidence adduced by the prosecution. All the accused persons took the plea that they have been falsely implicated in this case with the collusion of complainant Virender and Anju wife of deceased. They SC No. 11/2011 & 42/2011 Page no. 9 of 80 State Vs. Naval Kishore @ Nawal & Ors.
further stated that all the witnesses are either police officials or the close relatives of the deceased, thus interested witnesses. A1 Naval Kishore further submitted that no knife was recovered at his pointing out and the same had been planted upon him by the police. However, A2 admitted that motorcycle was belonged to him. But submitted that he had not made any disclosure statement that he could get recovered motorcycle from Chander Prakash. A3 Chander Prakash further submitted that no country made pistol was recovered from his possession. He further submitted that no motorcycle was recovered at his pointing out and the same had been planted upon him just to create a false evidence against him.
12. Learned Counsel appearing for accused persons raised the following common contentions:-
(i) that there was no motive for the accused persons to commit the murder of deceased;
(ii) that there was delay in lodging the FIR as well as in sending the copy of FIR to the Illaqua Magistrate;
(iii) that the presence of PW2 on the spot is doubtful as he did not inform the police and even his name is not mentioned in the MLC. It is admitted case of PW2 that he had awaken at about 2.40 AM whereas police had received the information of the incident at about 2.35 AM itself, this itself shows that he reached the spot after happening of occurrence;
(iv) that no reliance can be placed on the deposition of PW2 as he is an interested witness being the close relative of deceased; .
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(v) that as per the prosecution version, PW6 & PW9 were also the
eye witnesses but both the witnesses turned hostile and did not utter even a single word against the accused persons;
(vi) that no investigation was conducted by PW30 SI Sunil Kumar at the spot. Though prosecution case is that he had sealed the exhibits with the seal of BMR but the said seal did not belong to him. Prosecution failed to establish how the seal of BMR came into the possession of PW30. It is submitted that SI Bal Munkund Rai to whom the said seal belonged to, nowhere deposed that he had given his seal to PW30 at any point of time.
Even PW8 const. Ram Bir also did not depose that he was sent to collect the seal from SI Bal Mukund;
(vii) that prosecution had withheld the material witnesses namely Senthil Kumar and Naseem who made a call to the police control room after the incident, thus adverse inference will be drawn against the prosecution.
(viii) it is submitted that since Senthil and Naseem made a call to the police, if any incident had taken place, they would be the best person to disclose about the incident, but the investigating officer did not deem it appropriate even to examine them, thus adverse inference should be drawn against the prosecution;
(ix) that prosecution also withheld the witness who met with PW37 at the spot but he did not record their statement on the ground that they were not the eye witnesses. Since prosecution failed to bring them in the witness box, adverse influence should be drawn against the prosecution.
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13. Sh. Raj Pal Singh, Advocate, counsel appearing for accused Naval Kishore submitted that the evidence against accused Naval Kishore are that PW2 had seen him at the time of alleged incident and pursuant to his disclosure statement, one knife was recovered at his pointing out and prosecution case is that accused had assaulted deceased by the means of said knife. In this regard he raised the following contentions:-
(i) that no reliance can be placed on the deposition of PW2 on the grounds that his presence at the spot is doubtful and he is an interested witness;
(ii) that PW2 had attributed only two roles against accused Naval Kishore; firstly that accused Naval Kishore had assaulted him by the means of a patti made of iron and he had seen the accused Naval Kishore while he was fleeing away on the motor cycle. It was submitted that on both the counts PW2 was got duly confronted, thus no reliance can be placed on his deposition as it was the result of after thought; .
(iii) that no reliance can be placed on the alleged recovery of knife as in the disclosure statement Ex. PW8/E, accused had not disclosed the place from where he could get recovered the knife. Moreover, the knife was recovered from the place which was accessible to public at large.
Further, that before placing any reliance on the alleged recovery, prosecution is also supposed to establish that the said knife was used in the commission of crime. Though, IO PW37 deposed in his testimony that there was blood on the tip of knife but no such blood was found when it was examined under micro scope in the FSL. It was submitted that even the said knife was not sent to the doctor to take opinion that the alleged injury could be possible by the said knife. It was submitted that the police firstly SC No. 11/2011 & 42/2011 Page no. 12 of 80 State Vs. Naval Kishore @ Nawal & Ors.
recovered the knife and thereafter it showed to the accused to identify him. Thus, the said recovery is not admissible under Section 27 of the Indian Evidence Act;
(iv) that even the arrest of accused Naval Kishore and accused Devender are doubtful as they were apprehended at the pointing out of PW8 Rambir whereas PW8 deposed that he did not know the accused persons prior to their arrest. Thus, it is not clear how and in which manner accused were arrested;
(v) it was further submitted that even as per autopsy report, no injury was found on the dead body, which could be inflicted by the means of knife.
14. Sh. S. P. Yadav, Advocate raised the following contentions on behalf of accused Devender :-
(i) that the arrest of the accused Devender is doubtful as argued by Mr. Raj Pal Singh;
(ii) that nothing was recovered from the accused pursuant to his disclosure statement and the alleged disclosure statement has no evidentiary value as the same is hit by Section 25 of the Indian Evidence Act;
(iii) that though PW2 had deposed against accused Devender, but no reliance can be placed on his deposition as his presence on the spot is doubtful and being the relative of deceased he is an interested witness, thus in the absence of any corroboration no reliance should be placed on SC No. 11/2011 & 42/2011 Page no. 13 of 80 State Vs. Naval Kishore @ Nawal & Ors.
his testimony.
15. Sh. S. P. Yadav, Advocate submitted that the evidence against accused Chander Parkash are that PW2 made specific allegations against him, further that SOS Crime Branch had apprehended him on 21.1.2011 and recovered one country made pistol from his possession and as per prosecution version, the said country made pistol was used in the commission of murder of deceased. In this regard, he raised the following contentions:-
(i) that his arrest is doubtful because when accused Devender and Naval Kishore were arrested on 20.01.2011, they made a disclosure statement before the police that they had visited Delhi along with Chander Prakash and were arrested on the same day. If Chander Parkash was arrested on 20.01.2011, there was no occasion for SOS crime branch to arrest him on 21.1.2011;
(ii) that the murder was committed within the jurisdiction of PS Anand Parbat and there is nothing on record that investigation of the case was ever assigned to SOS Crime branch. PW25 HC Rajender deposed that he was directed by Insp. Arvind Kumar to apprehend the murderers of deceased Dalip @ Babloo but no document in this regard is produced.
Even SI Arvind Kumar did not appear in the witness box;
(iii) that prosecution case is that accused Chander Parkash was arrested on 21.1.2011 at about 8 AM and time of his arrest is mentioned in the memo as 11.45 AM and police party left from the spot at about 12.30 PM. But MHC(M) deposed in his testimony that the case property was SC No. 11/2011 & 42/2011 Page no. 14 of 80 State Vs. Naval Kishore @ Nawal & Ors.
deposited at about 11.15 AM, thus it is submitted that the entire episode is manipulated and fabricated; .
(iv) that there is material contradiction between the deposition of the witnesses examined by the prosecution in this regard as some witnesses deposed that the writing work was done after sitting on the pavement whereas other deposed that the writing work was done after sitting on the bench. Some witnesses deposed that ASI Suresh reached the spot before sending the rukka whereas other deposed that he reached the spot when rukka was under preparation. However, all the witnesses admitted in their deposition that public persons were gathered when accused was apprehended but no public person had joined the investigation;
(v) that as per the deposition of witnesses examined by prosecution, they were not carrying any mobile phone, despite that PW25 informed the duty officer of SOS Crime Branch to send ASI Suresh for further investigation. Even ASI Suresh informed the duty officer of PS Anand Parbat that accused had been arrested and he had confessed his involvement in the murder case. It is submitted that it is not clear when the police officials were not carrying mobile phone, how they informed duty officer of SOS crime branch and PS Anand Parbat;
(vi) that ASI Suresh deposed that he had informed the duty officer of PS Anand Parbat in the evening on 21.1.2011 whereas as per DD No. 15 A Ex. PW37/F, intimation was received from ASI Suresh Kumar at about 11.45 AM on 21.1.2011. Since ASI Suresh deposed that he was not having any mobile phone, question arises how he informed the DO of Anand Parbat at about 11.45 AM;
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(vii) that IO has not shown the position of police official witnesses in
the Site plan. Even no bus ticket was found from his possession, thus it rules out the prosecution case that accused had came there from private bus. Even nothing was recovered during his personal search, which further falsifies the prosecution case that accused was coming from UP. It was submitted that as per secret information, accused Chander Parkash visited Delhi to kill the eye witnesses of the case namely Raju and Chunu but neither of them is an eye witness in this case;
(viii) that accused Chander Parkash had not made any disclosure statement about the motor cycle when he was arrested in case FIR No. 11/11. Even in his subsequent disclosure statement, which was recorded in case FIR No. 3/11, accused had not disclosed that he could get recovered the motor cycle from F Block Mangol Puri. On the contrary, he disclosed that he could get recovered the motor cycle from the house of his known and admittedly the motor cycle was not recovered from the house of his known. Even no key of the motor cycle was recovered from his possession;
(ix) that there was a chance of tempering the case property as MHC(M) deposed that the pullanda was also sent on 28.02.2011 whereas this fact was not deposed by the IO and the carrier. Similarly, there is unreasonable delay in seeking the opinion about the pistol and cartridges used in the commission of crime, thus there is every likelihood that case property was tempered;
(x) that PW37 Insp. B.K.Singh had prepared the site plan at the pointing out of PW30 but interestingly despite that he had shown the position of eye witness in the site plan. It is submitted that admittedly, PW30 was not present when the alleged incident had taken place, thus SC No. 11/2011 & 42/2011 Page no. 16 of 80 State Vs. Naval Kishore @ Nawal & Ors.
PW37 should have prepared the site plan at the instance of eye witness instead of PW30.
16. On the other hand, Addl. Public Prosecutor refuted the said contentions by arguing that PW2 had witnessed the entire incident and he narrated the same in the Court in detail, thus his testimony can not be discarded merely on the ground that he is a close relative of the deceased. It was submitted that there was no enmity between the accused and PW2, thus, PW2 had no reason to falsely implicate the accused persons. It was further submitted that PW3 had clearly deposed about the motive of murder and there is no reason to disbelieve her testimony. It was further contended that pursuant to the disclosure statement of accused Nawal Kishore, one knife was recovered at his pointing out, which was used by him in inflicting incised wounds to the deceased. It was further contended that FSL report establishes that the cartridges found on the spot were fired from the pistol that was recovered from the accused. It was contended that all the accused in furtherance of their common intention committed the murder of Dalip @ Babloo. It was further contended that the contradictions and short-comings pointed out by the learned defence counsels are trivial in nature, thus not fatal to the prosecution case. No case law is produced in support of his contentions.
17. No other contention is raised by either sides. Similarly, no question of law is raised by counsel appearing for either sides. I have heard rival submissions advanced by learned counsel appearing for the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
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Contentions relating to Motive:
18. Learned counsel appearing for the accused persons assailed the prosecution case by strenuously arguing that prosecution failed to establish the motive of the crime. It was urged that there was no motive for the accused persons to eliminate the deceased as there was no previous enmity between both the parties. It was contended that PW2 in his deposition deposed that he did not know why the accused persons had killed the deceased, thus, his testimony is not sufficient to establish the motive. It was further argued that the testimony of PW3 is not sufficient to establish the motive of the crime. It was urged that prosecution has relied upon the complaint Ex. PW3/A lodged by the PW3 to prove the motive of the crime, it was submitted that no reliance can be placed on the said document as it is fabricated document as the name of accused persons was inserted in the said complaint subsequently. It was further contended that PW3 in her cross-examination also admitted that neither any litigation between the deceased and accused persons was pending in any court nor before the police. It was contended that since prosecution failed to establish the motive of the crime, accused persons are entitled for acquittal.
19. Per contra learned Additional Public Prosecutor countered the said contentions by arguing vigorously that on January 12, 2011 accused persons had threatened the PW3 that they would kill her husband within three days, consequently, PW3 had lodged a complaint before the police, which is Ex. PW3/A. It was submitted that PW3 had also made a call to the PCR, consequently, PCR visited the house of deceased but since at that time deceased was not available at his house, PW3 was directed to send him to the police station when he came back. It was submitted that pursuant to that threat, accused persons killed the deceased on between SC No. 11/2011 & 42/2011 Page no. 18 of 80 State Vs. Naval Kishore @ Nawal & Ors.
the night of January 15, 2011 and January 16, 2011.
20. Before dealing with the contentions raised by counsel for the parties, I deem it appropriate to have a look over the legal proposition of law over the significance of motive in criminal matters.
21. In Atley v. State of U.P., AIR 1955 SC 807 it was held:
"That is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion."
(emphasis supplied)
22. This view was followed by the Apex Court in 2005 in case Ranganayaki v. State, AIR 2005 SC 418 wherein it was held:-
"Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Red v. Palmer (Shorthand Report at page 308 May, 1856) thus: "But if there be any motive which can be assigned. I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties". Though, it is a sound presumption that every criminal act is done with a motive, it is unsound to suggest that no such criminal SC No. 11/2011 & 42/2011 Page no. 19 of 80 State Vs. Naval Kishore @ Nawal & Ors.
act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailants. In Atley v. State of U.P. (AIR 1955 SC 807), it was held "that is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion". In some cases it may be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes it may appear that the motive established is a weak one. That by itself is insufficient to lead to an inference adverse to the prosecution. Absence of motive, even if it is accepted, does not come to aid of the accused. These principles have to be tested on the background of factual scenario."
(emphasis supplied)
23. From the above settled proposition of law, it becomes crystal clear that where there is clear proof of motive for the crime, prosecution gets additional support to prove the guilt of accused but the absence of clear proof of motive does not necessarily prove the innocence of the accused. In the light of the above settled proposition of law, I proceed to analyse the evidence adduced by the prosecution.
24. In order to prove the motive of the accused persons, prosecution has relied upon the deposition of PW2 and PW3. But the SC No. 11/2011 & 42/2011 Page no. 20 of 80 State Vs. Naval Kishore @ Nawal & Ors.
testimony of PW2 is not helpful in any manner as in his examination-in-chief he categorically deposed that he did not know why the accused had killed his brother-in-law (deceased). No doubt, he swiftly added that there might be some enmity between them. However, he further deposed that he did not aware if any litigation was going on between his brother-in-law and accused persons. From his deposition, it is evident that PW2 was not aware about the enmity between the accused persons and deceased. When he deposed that there might be some enmity between them, it only means that he presumed so because his brother-in-law was killed in front of him otherwise it would be hard to believe him that accused persons would kill his brother-in-law without any enmity or cause.
25. PW3 Anju is the wife of deceased. In her examination-in-chief she deposed that on January 12, 2011, accused Chander Prakash and Devender had threatened her and her husband that they would kill her husband within three days. She further deposed that on January 15, 2011 in the noon all the three accused persons attacked them and at that time she had made a call to the Police Control Room and also lodged a report at PS Anand Parbat. The said complaint was registered vide DD No. 29B and the complaint is exhibited as Ex. PW3/A. In her cross-examination, she admitted that police had recorded her statement on March 25, 2011 and same is exhibited as Ex. PW3/D1. In her cross-examination, her statement to the effect that accused persons attacked them on January 15, 2011 and she made a call to the PCR was got confronted with the previous statement Ex. PW3/D1 wherein it was not so recorded. Since, PW3 in her previous statement did not disclose that accused persons had attacked them on January 15, 2011 and she made a call to the PCR in this regard, in the absence of any explanation for omission of this important fact, I am of the view no reliance can be placed on the said part of her deposition.
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Similarly, during trial, no effort was made to produce any document to establish that PW3 had made a call to the PCR about the said incident, this further casts a doubt over the prosecution version that PW3 had made any call to the PCR.
26. Now turning to the complaint Ex. PW3/A. In her cross- examination, she deposed that said complaint was written by one female police official in the police station at her dictation but she did not remember the name of said police official. She further deposed that the original complaint was handed over to the police in the hospital when it was demanded by the police. She further deposed that since then police did not return the original complaint. Admittedly, Ex. PW3/A is not an original copy. If PW3 had made any such complaint, original must be in the police record; similarly since DD No.29B is mentioned on the said complaint, it means that the said complaint was received through DD No. 29B and the police official who dealt with the said complaint must have mentioned the gist of allegations in the DD No. 29B. But neither the investigating agency nor prosecution deem it appropriate either to produce the original complaint or DD No. 29B during the trial. Moreover, if the original of Ex. PW3/A was delivered to the police in the hospital as deposed by PW3, investigating officer was supposed to record her statement in this regard or at least he should have mentioned this fact in the rukka but neither he recorded her statement nor mentioned this fact in the rukka. Further, careful perusal of the said complaint reveals that the complaint was concluded with the words "Aap ki ati kripa hogi." After conclusion of the complaint, the name of accused persons was written. If the said complaint was against the accused persons, their name should have been in the main body of the complaint and not after the conclusion of the complaint. Thus, the defence version that their name was inserted in the complaint subsequently can not be ruled SC No. 11/2011 & 42/2011 Page no. 22 of 80 State Vs. Naval Kishore @ Nawal & Ors.
out straight way.
27. However, in his examination-in-chief, PW3 deposed that on January 12, 2011 accused Chander Prakash and Devender had given threat her that they would kill her husband within three days. In this regard, in her cross-examination she deposed that neither she nor her husband had made any complaint to the police of the alleged threat. Mere fact that no complaint was made to the police is not suffice to disbelieve her testimony to that extent. During her cross-examination, a suggestion was given to the witness that deceased had enmity with numerous persons due to his criminal activities, though the suggestion was denied by the witness, but it means that deceased had enmity with numerous persons. If it was so, then, deceased might have also enmity with the accused persons. No doubt in her cross-examination, PW3 admitted that no litigation was pending between the deceased and accused persons in any court. She further deposed that she did not know whether any complaint was lodged by her husband against the accused persons or accused had lodged any complaint against her husband. But this itself not sufficient to draw any inference that there could be no enmity between them. As PW3 in her cross-examination admitted that deceased was involved in 2-3 criminal matters, it is quite plausible that deceased might have not disclosed his enmity with the accused persons to the PW3 and she drew the inference when accused had threatened her on January 12, 2011.
28. Taking into consideration the above discussion, I am of the opinion that the testimony of PW2 & PW3 are not sufficient to prove the clear motive of the accused persons to eliminate the deceased. It is admitted case of the accused persons that they had no enmity either with the deceased or with the witnesses (PW2 & PW3). PW2 and PW3 are the SC No. 11/2011 & 42/2011 Page no. 23 of 80 State Vs. Naval Kishore @ Nawal & Ors.
close relative of deceased being his brother-in-law and wife, thus, it is seldom to believe that they would falsely implicate the innocent persons in such a heinous crime permitting the real culprits to go unpunished. Moreover, in the light of the law laid down in Atley's case (supra) and Ranganayaki's case (supra) mere fact that prosecution has failed to prove the clear motive of accused persons is not fatal to the prosecution case in any manner.
29 In view of the above discussion, I do not find any force in the defence contention that no reliance can be placed on the prosecution case as prosecution has failed to prove the motive of accused persons to eliminate the deceased.
Contentions relating to delay in lodging the FIR as well as delay in sending the copy of FIR to the Illaqua Magistrate:
30. Learned counsel appearing for accused persons elaborated their contentions by astutely arguing that there is inordinate delay in lodging the FIR as the alleged incident had taken place at about 2.35 am on January 16, 2011 whereas the FIR was registered at about 6.50 am, thus contended that the present FIR was registered after due deliberation, hence casts a doubt over the prosecution case. It was further contended that the prosecution case is that copy of FIR was sent to the Illaqua Magistrate at about 7.15 am through constable Rambir (PW8) and he returned to the police station at about 9.45 am vide DD No. 18A, which is exhibited as Ex. PW4/D. It was urged that in fact the copy of FIR was delivered to the learned Illaqua Magistrate at about 5.00 PM, which falsifies the prosecution case that FIR was registered at about 6.50 AM and copy of the same was delivered to the Illaqua Magistrate at 7.15 AM.
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31. Per contra learned Additional Public Prosecutor contended that there is no delay in lodging the FIR as it was recorded as early as possible. Similarly, it was urged that copy of FIR was sent to the senior police officers and concerned Metropolitan Magistrate at the earliest and this fact is proved from DD No. 18A which shows that constable Rambir returned to the police station at about 9.45 AM after delivering the copy of FIR at the residence of concerned Metropolitan Magistrate and senior police officers.
32. Firstly, I shall examine as to whether there was any delay on the part of complainant to lodge an FIR?
33. As per deposition of PW15 constable Sarika, first time intimation of the alleged incident was received in the Police Control Room at about 2:35:06 hours on January 16, 2011 and the said information was recorded in part I of PCR Form, which is exhibited as Ex. PW15/A. However, local police of PS Anand Parbat received this information at about 2:47 AM, which was recorded vide DD No. 8A and exhibited as Ex. PW4/A. Said DD was assigned to SI Sunil Kumar, who left for the spot along with constable Suresh. At about 3.50 AM, duty officer, PW4 received an intimation from duty constable posted at Lady Harding Hospital that the injured Dalip @ Babloo had been declared brought dead by the doctors. Accordingly, said information was recorded vide DD No. 9A, which is exhibited as Ex. PW4/B. Said DD was also assigned to SI Sunil Kumar and constable Vijender was deputed to deliver the same to him. PW30 SI Sunil Kumar in his deposition deposed that he had received the said DD at the spot at about 4.00 AM and this fact is also corroborated by PW32 constable Vijender Kumar. PW30 further deposed that on receipt of DD No. 9A, he along with constable Vijender Kumar reached the hospital within 20 minutes thereafter he met with the doctors and collected the MLC of deceased. He further deposed SC No. 11/2011 & 42/2011 Page no. 25 of 80 State Vs. Naval Kishore @ Nawal & Ors.
that thereafter he recorded the statement of eye-witness Virender Kumar (PW2). Complainant, PW2 also corroborated this fact by deposing that he got recorded his statement to the police in the hospital at about between 4:00 AM to 4:30 AM. This shows that there was no delay on the part of complainant in making statement to the investigating officer. PW30 further deposed that he took about 20 minutes in recording the statement of PW2 and thereafter he returned to the spot at about between 5.25 AM to 5.30 AM. Thereafter, he lifted the exhibits from the place of occurrence and thereafter he made an endorsement on the statement of PW2 and sent constable Suresh to lodge an FIR. No doubt, when PW30 had recorded the statement of complainant in the hospital, he should have prepared the rukka at that time itself but the said lapse on the part of PW30 is not sufficient to cast a doubt over the act of complainant because there was no delay on the part of complainant in lodging the FIR. After making statement to PW30, PW2 had no role in lodging the FIR. It was the duty of PW30 to take necessary steps for prompt registration of FIR. If he preferred to make an endorsement after reaching the spot and lifting the exhibits from the spot, PW2 can not be blamed for the lapses on the part of PW30.
34. In the light of above, I am of the view that there was no delay on the part of complainant to lodge an FIR.
35. Now, I proceed to examine as to whether there was any delay in sending the copy of FIR to the concerned Metropolitan Magistrate or not? However, before proceeding in this regard, I prefer to have a look over the legal proposition of law in this regard.
36. In Bijoy Singh v. State of Bihar, AIR 2002 SC 1949 wherein it was held:-
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Para 7. "Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157, Cr. P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not.
Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
(emphasis supplied)
37. In the light of above settled proposition of law, I proceed to examine as to whether there was any delay in sending the copy of FIR to the concerned Metropolitan Magistrate or not.
38. PW8 constable Rambir in his examination-in-chief deposed that on January 16, 2011 he was sent to deliver the copy of FIR at the residence of senior police officers and concerned Metropolitan Magistrate. Accordingly, he left from the police station at about 7.00/7.15 AM on the official motorcycle. PW4 HC Jai Chand, duty officer in his cross-
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examination deposed that as per the roznamcha registered constable Rambir returned to the police station at about 9.45 AM and on returning, he made an arrival entry vide DD No. 18A, which is exhibited as Ex. PW4/D1. Thus, as per deposition of PW4 and PW8 it becomes crystal clear that PW8 had delivered the copy of FIR at the residence of concerned Metropolitan Magistrate between 7.15 AM to 9.45 AM. Since, FIR was registered at about 6.50 AM, thus prosecution case is that there is no delay in sending the copy of FIR to the concerned Metropolitan Magistrate. But the things are not so clear as prosecution presented before the Court. Investigating officer has also filed the copy of FIR which was received by the concerned Metropolitan Magistrate at his residence and he made endorsement on the said copy of FIR by mentioning the date and time of receipt of FIR. As per endorsement, learned Metropolitan Magistrate had received the copy of FIR at his residence on January 16, 2011 at about 5.00 PM. There is no explanation on the part of prosecution how the FIR was received by learned Metropolitan Magistrate at about 5.00 PM when constable Rambir already returned to the police station at about 9.45 AM. It only means that PW8 constable Rambir had made a false statement before the Court on oath that he left from the police station at about 7.00/7.15 AM to deliver the copy of FIR at the residence of concerned Metropolitan Magistrate and returned to the police station at about 9.45 AM vide DD No. 18A. Since, FIR was registered at about 6.50 AM, thus there is a delay of about 10 hours in sending the copy to the concerned Metropolitan Magistrate. Now, question arises as to whether said delay is fatal to the prosecution case or not?
39. As already discussed that there was no delay on the part of complainant in lodging the FIR, delay if any, was on the part of police officials. Mere fact that police officials failed to perform their duty diligently and fabricated DD No. 18A are not sufficient to discard the entire SC No. 11/2011 & 42/2011 Page no. 28 of 80 State Vs. Naval Kishore @ Nawal & Ors.
prosecution case. In view of the law laid down in Bijoy Singh's case (supra), since there was delay of about 10 hours in sending the copy of FIR to the concerned Metropolitan Magistrate, this Court has to minutely examine the prosecution version at the time of analysing the evidence to ensure as to whether any innocent person has been implicated in the crime or not.
Contentions relating to the presence of PW2 at the spot:
40. Learned counsel appearing for the accused persons dilated their contentions by vigorously contending that the presence of PW2 at the spot is quite doubtful as he neither informed the police about the alleged incident nor his name is mentioned in the MLC. It was urged that since no eye-witness was available, police had planted him as an eye-witness being the close relative of the deceased. It was further contended that even his testimony is not helpful to the prosecution case in any manner as he deposed that he awoke at about 2.40 AM, thereafter, he had come out from his room and witnessed the alleged incident whereas prosecution case is that police control room had received the first call of the incident at about 2:35:06 hours. It was thus, submitted that he reached the spot after the incident and had not witnessed the occurrence.
41. On the other hand, learned Additional Public Prosecutor refuted the said contentions by arguing that that PW2 was very much present at the spot and this fact is proved from his deposition wherein he vividly narrated the entire incident.
42. It is undisputed fact that first call was received at Police Control Room at about 2:35:06 hours on January 16, 2011 whereas PW2 in his SC No. 11/2011 & 42/2011 Page no. 29 of 80 State Vs. Naval Kishore @ Nawal & Ors.
deposition deposed that he got up at about 2.40 AM after hearing the noise of quarrel in the gali. In his cross-examination he clarified that he came to know that it was 2.40 AM as he had seen the time in the wall clock when he got up. From his deposition it appears that he meant to say that it was about 2.40 AM in his wall clock. It is common fact that in India one can easily find difference of 5 to 10 minutes among the watches of different persons. There is no evidence on record to establish that the wall clock of the room of PW2 and the electronic digital watch of Police Control Room was giving the same exact time and there was no difference of time between the said two clocks. In these circumstances, the presence of PW2 can not be doubted on the mere ground that he deposed that he got up at about 2.40 AM whereas Police Control Room had received the intimation of incident at about 2:35:06 hours.
43. Indisputably, name of PW2 is not mentioned in the MLC of deceased to the effect that he was accompanied with the deceased. As per MLC, injured was taken to the hospital by HC Krishan Chander and this fact also deposed by PW36 HC Krishan Chander, in-charge of Oscar-59, PCR Van. But this itself is not sufficient to disbelieve the PW2 as PW36 in his testimony categorically deposed that wife, brother-in-law and mother-in-law and two other public persons also accompanied them in the Van. Mere fact that name of PW36 is mentioned in the MLC is not sufficient ground to draw an inference that PW2 was not accompanied with the deceased or he had not witnessed the incident. PW2 in his cross-examination categorically deposed that when they reached hospital, he did not enter the casualty ward as his sister was with the deceased.
44. Admittedly, PW2 did not inform the police about the said incident and he had given valid reason for the same. He deposed that at SC No. 11/2011 & 42/2011 Page no. 30 of 80 State Vs. Naval Kishore @ Nawal & Ors.
that time he neither had any mobile phone or land-line Though in his complaint Ex. PW2/A one mobile no. 9582440322 is mentioned, but he specifically deposed that said phone did not belong to him. He further deposed that he had not told the said number to the police. During trial, defence failed to adduce any evidence to show that the said mobile connection belonged to PW2. In these circumstances, no adverse inference can be drawn against PW2. As PW2 did not have any mobile or land-line phone at the relevant time, thus, it was not feasible for him to inform the police about the incident. In his deposition, he specifically deposed that PW Prem informed the police about the incident and this fact is also admitted by PW6 Prem and PW9 Ramesh.
45. Considering the above discussion, I do not find any substance in the contention of learned defence counsel appearing for accused persons that the presence of PW2 at the spot is doubtful.
Contention: whether deposition of PW2 can be discarded being the close relative of deceased:
46. Learned counsel appearing for accused persons expatiated their contention by arguing vehemently that no reliance can be placed on the testimony of PW2 as he is an interested witness being the close relative of the deceased. It was urged that no reliance should be placed on his testimony unless it is corroborated from independent corners.
47. Per contra, learned Additional Public Prosecutor countered the said contention by arguing sagaciously that his testimony can not be discarded on the mere ground that deceased was his close relative.
48. Before dealing with the contentions raised by counsel for the SC No. 11/2011 & 42/2011 Page no. 31 of 80 State Vs. Naval Kishore @ Nawal & Ors.
parties, I deem it appropriate to have a look over the settled proposition of law. In Sonelal v. State of M.P. AIR 2009 SC 760 Apex Court in para 6 held as under:
"Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
(emphasis supplied)
49. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC
364) it has been laid down as under :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting SC No. 11/2011 & 42/2011 Page no. 32 of 80 State Vs. Naval Kishore @ Nawal & Ors.
any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
(emphasis supplied)
50. In Ashok Kumar Choudhary v. State of Bihar, AIR 2008 SC 2436 it has been laid down as under:-
"We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 pm. on 17th July, 1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence. In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit- worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit- worthiness of the evidence of relatives of the victim is concerned, it is well settled that though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/ she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other SC No. 11/2011 & 42/2011 Page no. 33 of 80 State Vs. Naval Kishore @ Nawal & Ors.
convicted either because he had some animus with the accused or for some other oblique motive."
(emphasis supplied)
51. In view of the above well settled proportion of law, I do not find any substance in the contentions raised by learned counsel appearing for accused persons. Though PW2 was cross-examined at length, yet even no suggestion was put to him that he had any animus with the accused persons. At the end, one suggestion was given to the witness that he had made a false deposition at the instance of his sister i.e. PW3, but the said suggestion was categorically denied by the witness. During trial, defence failed to adduce any evidence to show that PW2 had any animus towards any of the accused persons. In other words there is no scintilla of evidence that PW2 had some direct or indirect interest in seeing that accused persons somehow be convicted. On the converse, being the close relative it is seldom to believe that PW2 would screen the real culprits by falsely implicating the accused persons.
52. Pondering over the above discussion, I do not find any merit in the contentions raised by learned defence counsels.
Contentions relating to PWs 6 & 9:
53. Learned counsel appearing for accused persons vigorously contended that PW6 and PW9 were also the star witnesses of the prosecution but both the witnesses turned hostile completely and did not utter even a single word against the accused persons. It was submitted that both the witnesses categorically deposed that when they reached the spot neither PW2 nor PW3 was there and they reached the spot later on. It was SC No. 11/2011 & 42/2011 Page no. 34 of 80 State Vs. Naval Kishore @ Nawal & Ors.
thus contended that no reliance should be placed on the deposition of PW2 and PW3.
54. Learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that both the witnesses were won over by the accused persons, thus they turned hostile on some material points but mere fact that they did not support the prosecution case on some points is not sufficient to discard the testimony of PW2 and PW3.
55. PW6 and PW9 are son and father and deposed that on the intervening night of January 15 & 16, 2011 they got up after hearing the noise and saw that Dalip @ Babloo was lying in pool of blood in front their house. They further deposed that when they came out from their house their neighbours named Om Prakash, Sharda and Azad were also present there. They further deposed that PW2 and PW3 also reached there. However, both deposed that they had not seen who had caused injury to Dalip @ Babloo and they had also not seen any culprit. Indisputably, the alleged incident had taken place just in front of the house of PW6 & PW9 despite that they even failed to see the culprits even while they were fleeing away. PW6 deposed that he came out from his house after hearing the voice of his father (PW9). It means that PW6 had reached the spot after the conclusion of the occurrence. PW9 deposed that he had heard the sound of firing and the sound of running of persons but when he opened the door he did not see the assailants. It means either he reached the spot later on or he was concealing material facts from the Court. If he reached the spot after fleeing away of the assailants, he was not in a position to tell what PW2 had seen. And if he was deliberately concealing material facts from the Court, no reliance should be placed on his testimony. PW2 in his testimony categorically deposed that when accused fired the shot at his SC No. 11/2011 & 42/2011 Page no. 35 of 80 State Vs. Naval Kishore @ Nawal & Ors.
brother-in-law, he went to the house of his sister to call her. It is quite plausible that when he along with his sister (PW3) reached the spot, at that time PW6 and PW9 had seen them first time and drew inference that it was the first appearance of PW2 at the spot.
56. So far the presence of neighbours namely Om Prakash, Sharda and Azad are concerned, as per prosecution version they had not made any statement to the police about the alleged incident. If defence thinks that their deposition would help in proving their innocence, it was the duty of the defence to bring them in the witness box, but defence preferred not to examine them. To my mind, non-examination of said persons is not fatal to the prosecution case in any manner.
Contentions relating to Senthil Kumar and Naseem:
57. Learned counsel appearing for the accused persons vehemently contended that as per PCR forms, intimation was given to the police by one Senthil Kumar and Naseem but investigating officer failed to record their statement and even prosecution failed to bring them in the witness box. It was thus contended that adverse inference should be drawn against the prosecution. It was further contended that when PW37 reached the spot first time, several public persons met him but he failed to record their statement. Nor prosecution produced them in the witness box, thus adverse inference should be drawn against the prosecution.
58. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that there is no reason to draw any adverse inference against the prosecution.
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59. Indisputably, name of Senthil Kumar and Naseem is mentioned in the PCR form which shows that intimation of the said incident was given to the police from their mobile phones. Admittedly, during investigation investigating officer failed to interrogate them. Thus, there is nothing on record, which may suggest that either of them had witnessed the incident. Similarly, defence also did not deem it appropriate to examine either of them during the trial. If defence thinks that the testimony of either of them could be helpful to prove the innocence of accused persons, it was their duty to bring them in the witness box. Resultant, there is no scintilla of evidence even to show prima-facie that either of them had witnessed the incident or their examination would help the defence in any manner. PW6 in his examination-in-chief specifically deposed that he had informed the police but did not recollect whether he informed the police from his mobile phone or from the phone of someone else. It may be plausible that PW6 might have informed the police from the mobile phone of either of them.
60. No doubt, PW37 in his cross-examination admitted that when he reached the place of occurrence on January 16,2011 some persons were present there. But he clarified that they were not the witnesses of the incident. He further deposed that he did not remember as to whether Sarad, Azad, Om Prakash and Devender and others met him at that time or not. To my mind, no purpose would be achieved to record the statement of above persons when they told the investigating officer that they had not witnessed the incident. Mere fact that some onlookers gathered there after seeing the police officials does not mean that they had witnessed the incident. Moreover, if defence thought that the testimony of any of the above persons would help to prove their innocence, none had stopped the accused persons to examine them during the trial. Further, prosecution is not supposed to examine any Tom and Herry during the trial. Prosecution is SC No. 11/2011 & 42/2011 Page no. 37 of 80 State Vs. Naval Kishore @ Nawal & Ors.
supposed to examine only those witnesses who are material to arrive at a right conclusion.
61. In view of the above, I am of the view that no adverse inference can be drawn against the prosecution on the mere ground that prosecution failed to examine onlookers.
Contentions relating to the seal of BMR:
62. Learned counsel appearing for the accused persons astutely contended that PW30 had not conducted any investigation at the spot as he deposed that he had sealed the seized exhibits with the seal of BMR, which belonged to SI Bal Mukand Rai. It was stated that though PW30 in his cross-examination deposed that he had sent constable Rambir to fetch the seal from SI Bal Mukand Rai but neither constable Rambir nor SI Bal Mukand Rai deposed that the said seal was ever given to PW30. It was thus argued that the exhibits were sealed in the police station, thus, there is every possibility of tampering with the case property.
63. On the other hand, learned Additional Public Prosecutor opposed the said contention by arguing that all the investigation was conducted at the spot and PW30 in his deposition clarified that he had taken the seal from SI Bal Mukand as his seal was misplaced. However, it was submitted that for the purpose of transparency in the investigation, PW30 should be more careful at the time of using the seal of BMR.
64. In this regard, deposition of PW8 constable Rambir, PW11 constable Suresh, PW24 SI Bal Mukand and PW30 SI Sunil Kumar are relevant.
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65. Initially, PW30 in his examination-in-chief deposed that when he sealed the parcels at the place of occurrence, seal of BMR, which belonged to SI Bal Mukand, was with him. But in his cross-examination, he took a contradictory stand by deposing that he had sent constable Rambir No. 1467 to the police station Anand Parbat to fetch the said seal from SI Bal Mukand but deposed that he did not know whether at that time SI Bal Mukand was in the police station or not. If he was not aware whether SI Bal Mukand was in the police station or not, how he could send constable Rambir to the police station to fetch the seal. He further deposed that though he had his own seal but the same was misplaced, thus he sent constable Rambir to fetch the seal. He further deposed that he neither recorded the statement of constable Rambir nor SI Bal Mukand in this regard. If he had sent constable Rambir to fetch the seal, he should have recorded the statement of constable Rambir as well as SI Bal Mukand.
66. SI Bal Mukand appeared in the witness box as PW24 but he did not utter even single word about the said seal. He no where deposed that he had either handed over his seal to PW30 either on January 16, 2011 or at any point of time. Similarly, PW8 constable Rambir did not depose that he was ever sent to the police station to fetch the seal of BMR from SI Bal Mukand. Thus, neither PW24 nor PW8 corroborated the testimony of PW30 that he had sent constable Rambir to the police station to fetch the seal. Constable Suresh appeared in the witness box as PW11, he in his cross- examination deposed that PW30 had sent some one to the police station to fetch the seal but he did not remember the name of that some one.
67 From the above discussion, it can be culled out that prosecution has failed to establish how the seal of BMR came into the possession of SC No. 11/2011 & 42/2011 Page no. 39 of 80 State Vs. Naval Kishore @ Nawal & Ors.
PW30 at the spot. In these circumstances, the defence version that the case property was sealed in the police station can not be brushed aside. However, in the absence of any other cogent evidence, it is seldom to draw an inference that the case property was tampered in the police station. Before proceeding further, it is pertinent to state that in such a heinous crime such type of lapse was not expected from the investigating agency.
Contentions relating to the arrest of accused Nawal Kishore and Devender:
68. Learned counsel appearing for above accused persons astutely contended that the arrest of accused persons has been shown in a clandestine manner as some witnesses deposed that the accused persons were arrested at the pointing out of secret informer whereas some witnesses deposed that they were arrested at the pointing out of constable Rambir, but constable Rambir deposed that since he did not know the accused persons previously, question of his pointing out does not arise. It was thus contended that it is not clear how the accused persons were arrested.
69. Per contra, learned Additional Public Prosecutor refuted the said contention by arguing that the both the accused persons were arrested at the pointing out of secret informer but constable Rambir also knew them and there is no inconsistency among the deposition of prosecution witnesses.
70 To resolve the said controversy, deposition of PW8 constable Rambir, PW24 SI Bal Mukand and PW37 Inspector B.K. Singh are relevant.
71. PW37 inspector B.K. Singh in his examination-in-chief deposed SC No. 11/2011 & 42/2011 Page no. 40 of 80 State Vs. Naval Kishore @ Nawal & Ors.
that on January 20, 2011 at about 11.20 PM, they apprehended the accused Nawal Kishore and Devender at the pointing out of secret informer. He further deposed that after pointing out towards the accused persons, secret informer went away. However, PW24 SI Bal Mukand in his examination-in-chief deposed that constable Rambir was also in the raiding party and he pointed out towards two persons and stated to the investigating officer that they were the accused persons thereafter they apprehended them. He reiterated this fact even in his cross-examination. Thus, there is inconsistency between the deposition of PW24 and PW37 on the above point. PW8 constable Rambir has also given vague deposition on the above point. Initially, in his examination-in-chief, he deposed that secret informer pointed out towards two persons who were coming from fruit market side on the Military Road and at the pointing out of secret informer, members of raiding party apprehended those two boys. In his cross- examination, he reiterated his version that accused were apprehended at the pointing out of secret informer. When a question was asked as to whether accused were apprehended at his pointing out. He categorically deposed that since he did not know the accused persons, question of his pointing out towards the accused does not arise. But when his attention was drawn towards his statement Ex. PW8/D1 recorded under section 161 Cr.P.C., he deposed that he had identified both the accused persons and at his pointing out both the accused were apprehended. But he did not clarify how he could point out towards the accused persons, when he did not know them previously. Thus, the testimony of PW8 is paradox on this point, thus does not inspire any confidence.
72. From the above, it is culled out that prosecution has failed to prove that the accused were arrested at the pointing out of secret informer as deposed by PW37. But to my mind said lapse is not fatal to the SC No. 11/2011 & 42/2011 Page no. 41 of 80 State Vs. Naval Kishore @ Nawal & Ors.
prosecution case in any manner.
73. Perusal of arrest memo Ex. PW8/A reveals that investigating officer even did not deem it appropriate to mention the time of arrest in the memo. Similarly, he had not mentioned the name of person to whom the intimation of arrest of Nawal Kishore was given. No doubt he had mentioned the mobile number in the said column but it is not clear to whom it belonged to. Needless to say the requisite information, which every arresting police officer is supposed to mention in the arrest memo are not merely formality but it should be complied with piously. Needless to say that such type of lapse provides ammunition to the defence to cast a doubt over the arrest and such lapse also violates the constitutional and human rights of the accused. But the said lapse on the part of investigating officer is not sufficient to prove the innocence of accused.
Contentions relating to the recovery of Pattinuma knife at the instance of accused Nawal Kishore:
74. Learned counsel appearing for accused perspicaciously contended that no reliance can be placed on the alleged recovery of pattinuma knife at the instance of accused Nawal Kishore as the alleged recovery was affected from the open place, which is easily accessible to public at large; secondly that the alleged recovery was not affected pursuant to any distinct information provided by the accused as in his disclosure statement Ex. PW8/E, accused no where disclosed that he had thrown or concealed any such knife at that place or he could get recovered the same from the said place. Thirdly, that prosecution has failed to connect the alleged recovered knife with the commission of offence because no blood-stained marks were found on the said knife; nor any opinion was sought that any injury was inflicted by the said knife.
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75. On the other hand, learned Additional Public Prosecutor controverted the said contentions by arguing energetically that mere fact that the alleged recovery was affect from an open place is no ground to discard the recovery. He further deposed that when the recovery was affected there was some blood on the tip of the knife but same could not be verified during the forensic examination. It was further contended that the said recovery was affected pursuant to the information provided by the accused, thus admissible under Section 27 of the Indian Evidence Act.
76. As per prosecution version, the alleged recovery was affected in the presence of PW8 constable Rambir, PW24 SI Bal Mukand and PW37 inspector B.K. Singh, their testimony is relevant to analyse as to whether the alleged recovery is permissible under Section 27 of the Indian Evidence Act or not.
77. All the above witnesses categorically deposed that the alleged recovery was affected from the desolated place located near CNG Filling Pump at Military Road. There is no iota of evidence to show that the alleged knife was visible to the public at large. Rather from their deposition, it is evident that the knife was recovered from underneath the stones, thus it was not visible to the public unless it was disinterred by the accused. Now question arises as to whether recovery from such a place is admissible under Section 27 of Indian Evidence Act or not?
78. Same question arose before the Apex Court in State of H.P. v. Jeet Singh AIR 1999 SC 1293 wherein it was held:
"26. There is nothing in S. 27 of the Evidence Act which renders the statement of the accused SC No. 11/2011 & 42/2011 Page no. 43 of 80 State Vs. Naval Kishore @ Nawal & Ors.
inadmissible if recovery of the articles was made from any place which is "open or accessible to others." It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under S. 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
(emphasis supplied)
79. Same view was followed by the Supreme Court in State of Maharashtra v. Bharat Fakira Dhiwar, AIR 2002 SC 16.
80. In view of the above settled proposition of law, I do not find any force in the contention of learned defence counsel that no reliance can be placed on the alleged recovery as it was affected from an open place, which was easily accessible to public at large.
81. Now coming to the second limb of arguments as to whether the alleged recovery was affected pursuant to any distinct information furnished by the accused or not? Before proceeding further, I deem it appropriate to have a look over the settled proposition of law in this regard.
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82. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and others vs. Emperor AIR 1947 PC 67 wherein it was held :
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown has argued that in such a case the 'fact discovered' is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might SC No. 11/2011 & 42/2011 Page no. 45 of 80 State Vs. Naval Kishore @ Nawal & Ors.
be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
(emphasis supplied)
83. In State of Uttar Pradesh vs. Deoman Upadhyaya, AIR 1960 SC 1125 it was held:
"The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set SC No. 11/2011 & 42/2011 Page no. 46 of 80 State Vs. Naval Kishore @ Nawal & Ors.
out the information given by Deoman is provable in so far as it distinctly relates to the fact thereby discovered; and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court."
(emphasis supplied)
84. In case Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355, it was held:
"As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act."
85. In the light of above settled proposition of law, I will examine as to whether the accused had furnished any information to the police which led to the discovery of a distinct fact. Prosecution case is that during interrogation, accused Nawal Kishore had made a disclosure statement before the police in the presence of PW8, PW24 and PW37 and the said disclosure statement is exhibited as Ex. PW8/E. All the said witnesses in their deposition deposed that during disclosure statement, accused Nawal SC No. 11/2011 & 42/2011 Page no. 47 of 80 State Vs. Naval Kishore @ Nawal & Ors.
Kishore also disclosed that while escaping after commission of crime, he had thrown a knife (pattinuma) in the bushes located near CNG Pump Station and he could get recovered the same. However, during cross- examination when their attention was drawn towards the disclosure statement Ex. PW8/E, PW 24 admitted that there is no reference of the place from where knife could be got recovered in Ex. PW8/E. Similarly, PW8 admitted that in Ex. PW8/E it was no where mentioned that accused had disclosed that he had thrown pattinuma sharp edged weapon/churi at little bit ahead to CNG Pump Filling Station Military Road and he could get recovered the same from there. PW37 also admitted in his cross- examination that he had not mentioned that accused had disclosed that he had thrown knife at Military Road near CNG Pump.
86. Now question arises as to what information accused had divulged before the police in his alleged disclosure statement Ex. PW8/E. Perusal of Ex. PW8/E reveals that accused had divulged the following information pertaining to the alleged knife:
".....Mai Apni Nishandehi thawara vardat me istmal chakoonuma patti jis se main Babloo @ Dalip par var kiya tha ko baramad kara sakta hu."
87. From the above, it becomes crystal clear that accused Nawal Kishore did not disclose before the police that while he was escaping he had thrown the pattinuma knife either at desolated place near CNG Filling Pump, Military Road or at any other place. Similarly, he did not disclose that he could get recovered the same from the said place. If accused had disclosed before the police that he had thrown the pattinuma knife at desolated place near CNG Pump Filling Station, Military Road, it was the paramount duty of the investigating officer to mention the same in Ex. PW8/E. There is no explanation from the prosecution why investigating SC No. 11/2011 & 42/2011 Page no. 48 of 80 State Vs. Naval Kishore @ Nawal & Ors.
officer had not mentioned this important fact in Ex. PW8/E, if it was disclosed to him by the accused. In such a heinous crime, such type of lapse was not expected from the investigating officer. Since, this important fact is missing in Ex.PW8/E and there is no explanation from the prosecution in this regard, this Court has no other option except to hold that accused had not disclosed the said fact to the police in Ex. PW8/E. Once, it is held that accused had not disclosed the said fact to the police, it means that the alleged recovery was not affected pursuant to the information that he had thrown the pattinuma knife at desolated place near CNG Pump Filling Station, Military Road. Accordingly, I am of the view that prosecution has failed to bring the alleged recovery within the four corners of Section 27 of Indian Evidence Act.
88. Now coming to the next issue as to whether prosecution has abled to connect the alleged knife with the commission of crime or not?
89. Prosecution case is that accused Nawal Kishore had assaulted the deceased by the means of said pattinuma knife and the incised wounds found on the dead body of deceased were inflicted by the means of said knife. As per autopsy report Ex. PW35/B, three incised wounds were found on the dead body of deceased and prosecution case is that said wounds were caused by the alleged knife. In order to prove that the said knife was used in the commission of crime, prosecution case is that when knife was recovered there was some blood at the tip of the knife. PW37 in his examination-in-chief deposed that when it was seized there was some blood stain marks on the tip of knife. Same fact was deposed by PW8 in his cross-examination. At that time, Court observed that the blood stain marks were not visible with naked eyes. On the converse, PW24 in his cross- examination deposed that he had not seen any blood marks on the knife.
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PW37 in his cross-examination admitted that he had not mentioned in the seizure memo of knife Ex. PW8/H that there was blood at the tip of knife. If there was any blood at the tip of knife, it was the paramount duty of the investigating officer to mention the same in the memo. But he did not mention this fact without any reasonable explanation. Thus, from their deposition, it is not established that when knife was seized there was blood at its tip.
90. During investigation the alleged knife was sent to forensic lab for analysing as to whether there was any blood or if there was any blood whether the said blood belonged to deceased. Perusal of FSL report Ex. PW38/A reveals that no blood could be detected on the knife. Thus, it is established that the testimony of PW8 and PW37 to the extent that there was blood at the tip of knife when it was seized is without any basis, thus does not inspire any confidence. On the contrary, it is established that there was no blood on the alleged knife when it was seized. It means that prosecution has failed to connect the said knife with the commission of offence.
91. Even during investigation no effort was made to seek opinion from the doctor who conducted the post-mortem that the incised wounds found on the dead body of deceased could be possible by the alleged knife.
92. Pondering over the ongoing discussion, I am of the opinion that prosecution has failed to prove the alleged recovery of knife within the four corners of Section 27 of Indian Evidence Act and further failed to connect the knife with the commission of offence.
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Contentions relating to the recovery of motorcycle:
93. Learned counsel appearing for accused Chander Prakash sagaciously contended that the alleged recovery of motorcycle is not admissible under Section 27 of Indian Evidence Act because in his disclosure statement Ex. PW7/C accused disclosed that the motorcycle was lying with his known whereas the alleged recovery was affected from the parking of F-2 Block of Mangolpuri. It was contended that since no recovery affected pursuant to the information supplied by the accused to the police, alleged recovery does not fall within the four corners of Section 27 of the Act.
94. Per contra, learned Additional Public Prosecutor controverted the said contention by arguing that since motorcycle was recovered at the pointing out the accused, same is admissible under Section 27 of the Indian Evidence Act.
95. It is admitted case of the prosecution that accused had made a disclosure statement Ex. PW7/C. In the said disclosure statement accused had furnished the following information pertaining to the motorcycle to the police:
"Motorcycle mere parichit ke pas rekhee hai, mai isey baramad karva sakta hu"
Except that accused had not furnished any other information to the police about the motorcycle. It is also admitted case of the prosecution that accused had neither disclosed the name of his known nor his address. It is also admitted case of the prosecution that the alleged motorcycle was not recovered from the house of the known of the accused. On the converse, it was recovered from the parking area of F-2 Block of SC No. 11/2011 & 42/2011 Page no. 51 of 80 State Vs. Naval Kishore @ Nawal & Ors.
Mangolpuri. Admittedly, accused neither disclosed to the police that he had parked the motorcycle in the parking of F-2 Block Mangolpuri nor disclosed that he could get recovered the said motorcycle from there. Since, motorcycle was not recovered pursuant to the information furnished by the accused to the police, in view of the law laid down in Pulukuri Kottaya's case (supra), present recovery is not admissible under section 27 of the Indian Evidence Act.
96. In order to prove the alleged recovery, prosecution has relied upon the deposition of PW7 constable Satender, PW23 constable Jagdish and PW37 inspector B.K. Singh. There is material contradiction between the testimony of PW7 and PW37 on the one hand and PW23 on the another hand as PW7 and PW37 deposed that the colour of the motorcycle was red whereas PW23 deposed that it was of black colour. Further, PW7 and PW37 deposed that the alleged recovery was affected from the parking of F-2 Block of Mangolpuri whereas PW23 deposed that it was affected from FZ Block. However, all the said witnesses admitted that the alleged recovery was affected from the residential colony. Despite that no sincere effort was made to join any independent witness. PW37 deposed that since at the time of recovery no public person was present, thus no one was joined in the proceeding, but this explanation is not convincing as PW37 did not depose that he had made any effort to join any independent witness at the time of alleged recovery. Moreover, all the witnesses deposed that at that time motorcycle was locked and key was not with the accused. Question arises if key was not with the accused, then with whom it was. There is no explanation from the prosecution in this regard. This further casts a doubt over the alleged recovery.
97. In view of the above discussion, I am of the view that SC No. 11/2011 & 42/2011 Page no. 52 of 80 State Vs. Naval Kishore @ Nawal & Ors.
prosecution has failed to prove that the alleged recovery was within the four corners of Section 27 of the Indian Evidence Act.
Contentions relating to the recovery of pistol from accused Chander Prakash:
98. Learned counsel appearing for accused Chander Prakash elaborated his contentions by energetically arguing that no reliance should be placed on the testimony of witnesses relating to the recovery of pistol as the story propounded by them is highly improbable. It was submitted that their version is that inspector Arvind directed the PW 25 to apprehend the killers of Dalip @ Babloo but there is nothing on record even to suggest that the said case was ever transferred to the SOS Crime Branch. It was further submitted that all the witnesses deliberately deposed before this Court that they were not carrying their mobile phone just to deprive the defence to prove their location during trial. It was submitted that though they were not carrying their mobile phones, yet they telephoned from the spot to the SOS Crime Branch and PS Anand Parbat, which falsifies their version. It was further contended that prosecution story that after apprehending the accused, police party left from the spot at about 12.30 pm whereas MHC (M) categorically deposed that investigating officer had deposited the case property at about 11.15 pm which falsifies the prosecution version. It was further submitted that no independent witness joined the proceedings. It was further submitted that no ticket was recovered from the accused which doubted the prosecution case that accused had come there from any bus. Similarly, there was no eye-witness by the name of Raju and Chunnu in case FIR No. 3/11 PS Anand Parbat, thus it creates a doubt over the prosecution version that accused came there to kill them.
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99. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that there is no inconsistency between the deposition of police official witnesses and whatever contradictions pointed out by learned defence counsel are trivial in nature and are not fatal to the prosecution case. It was further submitted that there is no legal bar that SOS Crime Branch can not take action to apprehend the accused of its own.
100. To prove the recovery of pistol, prosecution has relied upon the deposition of PW 18 constable Ajay, PW 19 ASI Suresh Chand, PW 25 HC Rajender Singh and PW26 constable Sanjay. PW27 HC Jag Narayan was the MHC (M). PW25 was the initial investigating officer whereas subsequent investigation was conducted by PW19. PW18 and PW 26 were the members of the raiding party. Though several other police officials were in the raiding party, but investigating officer did not deem is appropriate to bring them on record. As usual, members of the raiding party failed to persuade any independent witness to join the proceedings either at the time of apprehending the accused or thereafter. Thus, the alleged recovery is based on the deposition of only police official witnesses.
101. Since, PW25 was the complainant and initial investigating officer, I start the discussion with his deposition. PW25 in his examination- in-chief deposed that inspector Arvind Kumar deputed him to apprehend the killers of Dalip Kumar prior to January 21, 2011. But he failed to depose when he was deputed for the said job. Indisputably, PW25 and inspector Arvind Kumar were posted at SOS Crime Branch, Sunlight Colony whereas the murder of Dalip Kumar had taken place within the jurisdiction of PS Anand Parbat on the intervening night of January 15 & 16, 2011. During trial, no document was produced in the Court that the intimation of the SC No. 11/2011 & 42/2011 Page no. 54 of 80 State Vs. Naval Kishore @ Nawal & Ors.
murder of Dalip Kumar was ever given by the Central District to SOS Crime Branch or that police of PS Anand Parbat had sought the help of SOS Crime Branch in apprehending the accused persons. It is not the case that local police was not in a position to apprehend the accused. On the converse, local police had apprehended the two accused persons on January 20, 2011 itself. No doubt, SOS Crime Branch of its own can render help to the local police in apprehending the culprits, if they have any information about the culprits. But in the instant case, there is no material on record to suggest that there was any information with the SOS Crime Branch either about the murder of Dalip or about its killers. Even prosecution did not deem it appropriate to bring inspector Arvind Kumar in the witness box to establish the fact that he deputed PW25 on the said job. Thus, there is no material except the bald assertion of PW25.
102. As per prosecution version, PW25 had received the secret information on January 21, 2011 at about 5:00 am on telephone that accused Chander Prakash @ Chottu who had committed the murder of Dalip with the help of his associates, would come between 7:00 am to 8:00 am at Sarai Kale Kha from private bus towards U.P. side. It was further informed that he would visit to eliminate eye-witnesses Chunnu and Raju of his case. From this information, it appears that the secret informer did not only know the name of accused but also the purpose of his visit to Delhi i.e. to kill the eye-witnesses of the case. But surprisingly, there was no eye- witness in the murder case either by the name of Chunnu or Raju. If there was no such eye-witness, question of coming Delhi to eliminate them does not arise.
103. As per the deposition of PW18, PW25 and PW26 accused Chander Prakash was apprehended while he was standing in the parking of SC No. 11/2011 & 42/2011 Page no. 55 of 80 State Vs. Naval Kishore @ Nawal & Ors.
Sarai Kale Kha bus terminal. Though the members of raiding party were present there since long, yet none had seen from which direction he had come there. As per secret information, accused had come from U.P. side in a private bus but surprisingly no bus ticket was found during his search.
104. PW18, PW19 and PW25 in their deposition categorically deposed that they were not carrying their mobile phone on that day. PW26 is silent on this point but he no where deposed that he was carrying any mobile phone. Similarly, other witnesses also did not depose that PW26 was having any mobile phone at that time. Even none deposed that PW19 and PW25 had used the mobile phone of PW26. Thus, it becomes abundantly clear that no member of raiding party was carrying the mobile phone and they did not have any other mode of communication. But surprisingly, as per DD No. 6 exhibited as Ex. PW33/A, HC Rajinder Kumar (PW25) made a telephone call to ASI Suresh Chander asking to reach the spot. Now short and simple question arises how PW25 made a call to ASI Suresh Chand from the spot if no member of raiding party was carrying mobile phone. Similarly, as per DD No. 15 exhibited as Ex. PW37/F, ASI Suresh Chand had made a call to the duty officer of PS Anand Parbat at about 11.45 am. Since, all the witnesses unanimously deposed that they left from the spot at about 12.30 pm, it means that the said call was made from the spot itself. If PW19 was not carrying any mobile phone, question arises how he made a call to PS Anand Parbat. Generally, Court ignores such type of lapses but in the instant case, the same are quite relevant because all the witnesses categorically deposed in their deposition that they were not carrying mobile phone. It only means that they have made a false statement before this Court that they were not carrying the mobile phone. If it was so, question arises why? Whether they were afraid if they would admit that they were carrying mobile phone, defence would be able SC No. 11/2011 & 42/2011 Page no. 56 of 80 State Vs. Naval Kishore @ Nawal & Ors.
to expose them by producing the call details of their mobile phones, which is exactly the contention of defence counsel.
105. Indisputably, prosecution case is that members of raiding party reached Sarai Kale Kha by official gypsy bearing registration number DL-IC-J-5474. PW25 in his deposition categorically deposed that he had not signed the log book of the said gypsy. Nor the copy of said log book is filed on the record. Even prosecution did not examine the driver of the said gypsy. In these circumstances, there is no cogent evidence except the bald assertion of PW25 that the said official gypsy was used in the said raid. Had the logbook be produced in the Court, prosecution would be able to corroborate the time of alleged raid, but prosecution preferred to withhold the said document without any reasonable explanation.
106. PW18, PW19 and PW26 in one tone categorically deposed that all investigation was conducted at the spot and after completing the investigation they left from the spot at about 12.30 pm. PW19 deposed that he had deposited the case property with MHC (M) at PS Nehru Place at about 1:00 pm. But MHC (M) HC Jag Narayan (PW27) appeared in the witness box, he categorically deposed that PW19 ASI Suresh Chand had deposited the case property with him on January 21, 2011 at about 11.15 am. In order to seek clarification from the witness, Court had put a question to the witness, despite that he reiterated that parcel was deposited with him at about 11.15 am. However, this time he took some leverage by saying there may be variation of 5-10 minutes. It means that the case property was deposited with him by 11.25 am. But prosecution failed to explain how PW 19 was able to deposit the case property with PW27 at about 11.25 am when PW19 along with his team left from the spot at about 12.30 pm only. This contradiction creates a serious doubt over the manner in which the SC No. 11/2011 & 42/2011 Page no. 57 of 80 State Vs. Naval Kishore @ Nawal & Ors.
alleged recovery is tried to be established before this Court.
107. If we read the testimony of PW27 and DD No. 15 A (Ex. PW37/F) together, there will be no hitch to say that PW18, PW19 and PW26 made a false statement in the Court that they left from the spot at about 12.30 pm. It is admitted case of the prosecution that SOS Crime Branch Sunlight Colony falls within the jurisdiction of PS Crime Branch Nehru Place. All the members of raiding party were on duty at SOS Crime Branch Sunlight Colony whereas MHC (M) used to sit at Nehru Place. It means from the place of arrest i.e. Sarai Kale Kha PW19 visited Nehru Place to deposit the case property thereafter went to SOS Crime Branch Sunlight Colony. As per DD No. 15A at about 11.45 am ASI Suresh Chand intimated the duty officer of PS Anand Parbat on phone that accused Chander Prakash had been arrested and he had confessed his involvement in case FIR No. 3/11 PS Anand Parbat. ASI Suresh Chand could make a call to PS Anand Parbat at about 11.45 am only if he deposited the case property by 11.25 am as deposed by PW27. If the case property was deposited at about 1:00 pm as deposed by PW19, it was next to impossible for him to intimate the police of PS Anand Parbat at about 11.45 am from SOS Crime Branch Sunlight Colony. It is penitent to state that police officials should keep in mind that their duty is to search and collect the evidence and not to manipulate the record. Further, they should also keep in mind that making false deposition in the Court is a serious offence and it become graver if a false deposition is made in such a heinous crime.
108. As per secret information, accused Chander Prakash had to come from UP side and his motive to visit Delhi was to kill eyewitnesses Raju and Chunnu. After arrest accused was interrogated and his disclosure statement was recorded and same is exhibited as Ex. PW19/D. It is evident SC No. 11/2011 & 42/2011 Page no. 58 of 80 State Vs. Naval Kishore @ Nawal & Ors.
from Ex. PW19/D that no effort was made to know from where he came to Delhi and who were Raju and Chunnu and why he wanted to kill them. It only means that investigating officer had no interest to know the said things, if it was so, it was quite strange. In his disclosure statement he stated that he had procured the pistol and cartridges from one Raju to whom he did not know but he could get him arrested. If accused disclosed the said fact, it was the paramount duty of the investigating officer to make efforts to arrest that Raju but record reveals that no effort was made to take the accused on police remand.
109. From the testimony of PW25 it is abundantly clear that no effort was made to join any independent witness either at the time of constituting the raiding party or after reaching Sarai Kale Kha bus terminal despite the fact numerous government officials were present there. No doubt PW25 in his deposition deposed that when they apprehended the accused, some public persons gathered there and at that time SI Narender asked them to join the proceedings but they went away without disclosing their name and addresses. But prosecution preferred not to bring SI Narender Kumar in the witness box without any reasonable explanation. Moreover, it is proved that no effort was made to join the independent witness before apprehending the accused and there is no explanation from the prosecution in this regard. Even PW19 did not make any effort to join any independent witness. Thus, PW25 and PW19 preferred to rely upon the statement of police officials and not made any effort to join any independent witness. No doubt, testimony of police officials should not be rejected simply on the ground that no independent witness joined the investigation. But considering the lapses in the investigation as discussed above and the fact that police officials even did not hesitate to make a false statement before the Court, I am of the view, it will not be safe to rely upon their SC No. 11/2011 & 42/2011 Page no. 59 of 80 State Vs. Naval Kishore @ Nawal & Ors.
testimony.
110. Considering the above discussion, I am of the opinion that prosecution has failed to prove the alleged recovery of pistol beyond the shadow of all reasonable doubts.
Contentions relating to PW2:
111. Both learned counsel appearing for accused persons vigorously contended that no reliance should be placed on the deposition of PW2 as he had made several major improvements in his deposition. Sh. Raj Pal Singh Advocate appearing for accused Nawal Kishore contended that PW2 had deposed two facts in his deposition; firstly that accused Nawal Kishore was assaulting the deceased by the means of patti, which was of iron and secondly that he had seen the accused Nawal Kishore fleeing from the spot on motorcycle. It was urged that on both the points PW2 was got duly confronted with his previous statement. It was thus contended that PW2 had made substantial improvements in his deposition qua Nawal Kishore, thus, the same should not be read in evidence. It was contended if these two facts excluded from his deposition there is no other evidence to connect the accused with the alleged incident. It was further contended that though PW2 deposed that Nawal Kishore had assaulted the deceased by the means of an iron patti but as per the post-mortem report deceased had not sustained any injury which could be caused by the means of an iron patti.
112. Sh. S.P. Yadav Advocate appearing for remaining accused contended that PW2 had made substantial improvements in his deposition qua accused Chander Prakash also by deposing that Chander Prakash had SC No. 11/2011 & 42/2011 Page no. 60 of 80 State Vs. Naval Kishore @ Nawal & Ors.
fired the shot at Dalip after putting his leg on the body of deceased. It was further contended that he deposed that injured was taken up to the PCR Van on the cot whereas this fact was not mentioned in his previous statement. It was further submitted that prosecution case is that two shots were fired at Dalip whereas PW2 deposed that only one shot was fired at Dalip, thus argued that he was not present at the spot, due to that reason he was not aware how many shots were fired at deceased.
113. Both learned counsel appearing for accused persons further contended that the conduct of PW2 was also strange because he admitted in his cross-examination that he did not raise any alarm either before the firing or thereafter, he further admitted that he even did not raise the alarm when he went to the house of his sister to call her. It was contended that he did not raise the alarm as he was not present there.
114. They further contended that there was public tap in the gali and PW2 admitted that water supply starts in the tap at about 2:30 am, thus argued that there must be several persons in the gali at that time but PW2 deposed that none was there when he had witnessed the incident, which is quite impossible.
115. Both the learned counsel further contended that PW2 admitted in his cross-examination that he had not disclosed the name of assailants to the PCR officials when they were on the way to hospital whereas PCR official deposed that PW2 had disclosed the name of assailants to them.
116. At last they contended that PW6 and PW9 in their deposition deposed that PW2 reached the spot subsequently, thus no reliance should be placed on his testimony.
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117. Learned Additional Public Prosecutor refuted the said contentions by arguing that the contradictions pointed out by learned defence counsel are trivial in nature and same are not fatal to the prosecution case. It was further contended that the human behaviour is quite complex, no one can predict how an individual would react in a particular situation, thus mere fact that he did not raise alarm and inform the name of assailants to PCR official are not sufficient grounds to discard his testimony. It was submitted that since PW6 and PW9 turned hostile their statement should not be used to disbelieve the testimony of PW2.
118. Before analysing the testimony of PW2, it will be better to see his background. As per his testimony, he passed 4th standard. He can read Hindi with difficulty. He had the problem of fits for the last 4-5 months when he graced the witness box and even he was in hospital about two days ago. He was 25 years old at the time of deposition. He was not financial sound as he belongs to low strata of society. At the time of appreciating his evidence, Court has to keep in mind his educational, mental and economical background. In fact, he is a rustic witness and the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from the poor strata of society is that the evidence of such a witness should be appreciated as a whole.
119. Before proceeding further, I deem it appropriate to have a look over the settled proposition of law on the point how the evidence of a witness should be appreciated by the Court. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 Apex Court has laid down the approach which should be followed by the Court at the time of appreciating evidence of a witness:
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"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-
examination is an unequal duel between a rustic and refined lawyer..................."
120. In State v. Saravanan AIR 2009 SC 152, it has been laid down that:
"Even otherwise, it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence SC No. 11/2011 & 42/2011 Page no. 63 of 80 State Vs. Naval Kishore @ Nawal & Ors.
given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."
121. In State of U.P. vs Krishna Master, AIR 2010 SC 3071, it was held:-
"......In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out."
122. In the light of these principles, this Court will have to determine whether the evidence of PW2 proves the prosecution case.
123. The relevant portion of the deposition of PW2 is as under:
".....After opening my door, I saw that my brother-in-law Dalip @ Bablo was caught hold by accused Devender SC No. 11/2011 & 42/2011 Page no. 64 of 80 State Vs. Naval Kishore @ Nawal & Ors.
from behind whereas accused Chander Prakash @ Chhotu had a katta in his right hand and he had pointed out the same at my brother-in-law Dalip @ Babloo whereas accused Naval was assaulting my brother-in- law by the means of the patti, which was of iron. My brother-in-law Dalip was trying to save himself. I rushed towards him to save my brother-in-law. However, accused Chander Prakash had fired a shot from the katta which he was carrying. Dalip was already on the road as he was being assaulted by the accused persons. Chander Prakash had fired only one shot in my presence. I rushed to call my sister Anju. When I along with my sister rushed back to the place of occurrence. I saw my brother-in-law was in pool of blood and I saw accused Chander Prakash, Devender and Naval were escaping from the place of occurrence on motorcycle from the gali behind where murder had taken place. I had seen the incident in the street light as there was electric pole near the place of occurrence."
".......I do not know why the accused persons had killed my brother-in-law. (vol. They might have some enmity with him). I am not aware if some litigation was going on with my brother-in-law and the accused persons.
Accused persons fled away from the spot on the red colour TVS Motorcycle. On the spot two empty cartridges and one piece of chain of wrist watch having yellow colour was also found. Though two empty cartridges were found yet only one shot was fired in my presence."
During the cross-examination conducted by learned Additional Public Prosecutor PW2 deposed:
"When I rushed towards my brother-in-law to save him accused Chander Prakash said let Dalip be eliminated today...........(vol. When Chander Prakash fired a shot, at that time, Dalip was caught hold by accused Devender and Dalip was lying on the road and Chander Prakash put his leg on Dalip and thereafter fired a shot at him.)..........Accused had fired only one shot in my presence."
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124. From his above deposition, it is crystal clear that he had described the incident vividly in the Court. In his cross-examination, he admitted that he had not stated to the police in his statement Ex. PW2/A that accused had fled away on the red colour TVS Motorcycle from behind gali. But admittedly, in Ex. PW2/A, he stated that accused persons fled away from the spot. Thus, during his deposition, he only explained how the accused persons had fled away. Thus, the same cannot be considered an improvement. In his cross-examination, he stated that he had stated to the police in Ex. PW2/A that they had taken the injured Dalip up to the PCR Van on the cot whereas this fact was not recited in Ex. PW2/A. No doubt, there is contradiction in his deposition on this point but said contradiction can not be termed as substantial contradiction as it does not affect the core of prosecution case. Similarly, in his cross-examination, he deposed that he had stated before the police in his statement Ex. PW2/A that accused Chander Prakash had fired a shot at Dalip after putting his leg on the body of Dalip whereas this fact is not recited in Ex. PW2/A. But in Ex. PW2/A it is recited that accused Chander Prakash had fired shots at Dalip. Thus, the main point was as to whether Chander Prakash had fired the shot at Dalip or not. And PW2 categorically deposed that it was Chander Prakash only who fired the shot at Dalip. However, in his deposition, he elaborated the manner in which the shot was fired. Thus, the said elaboration can not be termed as substantial improvement but it merely an explanation to his previous statement, thus I am of the view, it does not affect the core of prosecution case. Similarly, in his cross-examination, he deposed that he had stated before the police in Ex. PW2/A that the patti, which Naval was holding was of iron whereas word 'iron' is not mentioned therein. Indisputably, in Ex. PW2/A, it is recited that Naval was assaulting Dalip by patti, which he was holding at that time. To my mind, it is not an SC No. 11/2011 & 42/2011 Page no. 66 of 80 State Vs. Naval Kishore @ Nawal & Ors.
improvement, thus does not affect the core of prosecution case.
125. Taking into account the above discussion, I do not find merit in the contention of learned defence counsel that no reliance can be placed on the deposition of PW2 as he had made several improvements in his deposition. During the course of arguments, Sh. S.P. Yadav Advocate strongly relied upon the judgment Sucha Singh v. State of Punjab 2009 (3) C.C.Cases (SC) 297 but to my mind the said judgment is not helpful to the accused persons in any manner because in that case Hon'ble Court declined to rely upon the deposition of eye-witnesses as there was substantial contradictions on numerous points between the testimonies of witnesses examined by the prosecution whereas in the present case there is no such contradictions.
126. No doubt in his cross-examination, he admitted that he had not raised the alarm either before firing the shot or even thereafter and he had given explanation for the same by deposing that there was no occasion for him to raise the alarm as accused had already fired the shot. He further admitted that he had not raised the alarm when he went to call his sister but again he had given the explanation that he did not raise the alarm as accused themselves told him to call his sister as they had killed his brother-
in-law. No doubt, in such a situation the normal reaction of an ordinary person will be to raise alarm but PW2 did not raise the alarm and he had given some explanation. Though the explanations furnished by PW2 are not much convincing, yet we should not forget that human behaviour is quite complex and it is very difficult to predict how a person would react in a particular situation. It is well known that different persons react differently even in the same situation. Thus, mere fact he had not raised the alarm at that point of time is not suffice to discard the testimony of PW2, which is SC No. 11/2011 & 42/2011 Page no. 67 of 80 State Vs. Naval Kishore @ Nawal & Ors.
otherwise trustworthy. Moreover, PW3 categorically deposed that it was PW2 who came to her house to inform the incident, which proves that PW2 had gone to the house of his sister to intimate her about the incident. Mere fact that he had not raised the alarm at that time is not ipso-facto sufficient to discard his testimony.
127. Admittedly, in his cross-examination, he deposed that water supply starts in the gali between 2 am to 2:30 am and further admitted that tenants of the behind gali used to visit their gali to take water in the night. But he also deposed that at the time of incident there was no one in the gali. Even during trial, defence also failed to establish whether any person was present in the gali at that time. If any person was present and accused thought that that person would prove their innocence, it was the duty of the accused to examine him in the witness box. But they failed to produce any such witness. In other words, there is no scintilla of evidence that any other person except PW2 was present in the gali at the time of incident. In these circumstances, I do not find any force in the contention of learned defence counsel.
128. No doubt there is contradiction between the deposition of PW9 and PW2 as PW2 deposed that none was present in the gali except him when the alleged incident had taken place whereas PW9 deposed that PW2 reached the spot later on and thereafter he went to the house of his sister to call her. Indisputably, PW9 turned hostile and he did not support the prosecution case, it means that prosecution has not relied upon the said witness. Further, PW9, in his deposition deposed that he had come out of his house after hearing the sound of firing of shot. As per autopsy report, two shots were fired at the deceased. PW9 further deposed that when he came out of his house, assailants had already run away, he had not seen SC No. 11/2011 & 42/2011 Page no. 68 of 80 State Vs. Naval Kishore @ Nawal & Ors.
the assailants. It means he had taken enough time after hearing the sound of two firing shots and coming out of his house. Thus, he was not in a position to say whether any person had witnessed the alleged incident or not. In other words, he was not in a position to say whether PW2 had witnessed the incident or not. It is quite plausible that PW9 came out of his house when PW2 had gone to the house of his sister and under some misconception, he inferred that PW2 had come from his own room. It is pertinent to state that prosecution case was that deceased Dalip had visited his house prior to his death and he left from his house just before the alleged incident. After hearing the noise of quarrel, PW9 came to his house and saw the entire incident but in his deposition he turned hostile completely by deposing that he reached the spot when the assailants had already fled away. Thus, prosecution declared him hostile. Since, prosecution had declared PW9 hostile, it will not be proper to disbelieve the testimony of PW2 on his statement.
129. Similarly, PW6 son of PW9 also turned hostile. From his deposition it appear that he reached the spot after his father and by that time the assailants had already fled away. In his deposition he deposed that when he reached the spot he had not seen PW2 and PW3. As already discussed that it is quite plausible when PW6 came out of his house, PW2 might be at the house of PW3. Thus, the testimony of PW6 is not sufficient to discard the testimony of PW2.
130. Indisputably, there is contradiction between the deposition of PW2 and PW3 on the one hand and PW36 HC Krishan Chander, in-charge of PCR Van. PW36 deposed that PW2, PW3 and their mother also accompanied with the injured to the hospital and on the way, PW2 and PW3 informed him about the name of assailants, which he conveyed to the SC No. 11/2011 & 42/2011 Page no. 69 of 80 State Vs. Naval Kishore @ Nawal & Ors.
Police Control Room. But PW2 categorically deposed that he had not disclosed the name of assailants to the PCR official. Similarly, PW3 deposed that neither PCR official asked her about the incident nor she of her own stated about the incident to them. To my mind, the effect of this contradiction is that the testimony of PW36 became doubtful that the name of assailants was disclosed to him by PW2 and PW3. But that contradiction is not sufficient to discard the testimony of PW2 in any manner.
131. It is admitted case of the prosecution that two shots were fired at the deceased due to which deceased had sustained injury no. (iv) and (v) in his abdomen and injury no. (xiii) and (xiv) are corresponding to injury no.
(iv) and (v) respectively. Thus, from the autopsy report Ex. PW35/B it is established that two shots were fired at the deceased and both were hit in the abdomen of the deceased. From the deposition of PW20 it is established that the two cartridges cases found on the place of occurrence were fired from the pistol which was recovered in case FIR No. 11/11 PS Crime Branch. It is also established that the deformed bullets which were recovered during the medical examination of deceased and post-mortem were also discharged from the same pistol. From, the testimony of PW35 it is established that two shots were fired at deceased and both hit in his abdomen and from the testimony of PW20 it is established that both the shots were fired from the same pistol, which was recovered in case FIR No. 11/11 PS Crime Branch. It means that only one person had fired both the shots. No doubt PW2 deposed that accused Chander Prakash had fired only one shot in his presence. But he no where deposed that accused Chander Prakash had not fired the second shot. He only deposed that in his presence, accused Chander Prakash had fired only one shot. Since, both the shots were fired from the same pistol, it only means that the second shot was also fired by the accused Chander Prakash and not by SC No. 11/2011 & 42/2011 Page no. 70 of 80 State Vs. Naval Kishore @ Nawal & Ors.
anyone else.
132. Though in his statement Ex. PW2/A, he stated that accused Chander Prakash had fired two shots but in his deposition before the Court, he deposed that Chander Prakash had fired only shot in his presence. During his cross-examination conducted by learned Additional Public Prosecutor he deposed that when Chander Prakash fired a shot, at that time Dalip was caught hold by accused Devender and Dalip was lying on the road and Chander Prakash put his leg on Dalip and thereafter fired a shot at him. It means that Chander Prakash had fired shot twice; firstly when deceased was caught hold by Devender and; secondly when deceased was lying on the road and Chander Prakash put his leg on Dalip and fired a shot at him. But simultaneously, he also deposed that Chander Prakash had fired only one shot in his presence. It only means that at the time of deposition there was some confusion in the mind of PW2. But if we read his testimony as a whole, I am of the view that there is no confusion that Chander Prakash was the person who fired the shot at deceased and he fired twice.
133. At last but not least, PW2 is the brother-in-law of deceased and he had no enmity with the accused persons. Though prosecution case is that there was some enmity between the deceased and accused persons, yet during the trial accused persons took the plea that they had no dispute with the deceased. It means that as per defence, accused had no enmity with the deceased also. Since, PW2 had no enmity with the accused persons, there was no occasion for him to falsely implicate the accused. Being the close relative of deceased, it is seldom to believe that he would permit the real culprits to go unpunished by making false allegations against the persons with whom he had no enmity. Thus, I am of the view SC No. 11/2011 & 42/2011 Page no. 71 of 80 State Vs. Naval Kishore @ Nawal & Ors.
that PW2 is a trustworthy witness and there is no reason to disbelieve his testimony.
Consolidation of the evidence:
134. From the above discussion, it is established that prosecution has produced the following evidence against the accused persons:-
Naval Kishore: (i) The testimony of PW2 (ii) testimony of PW3 to establish motive (iii) recovery of pattinuma knife.
Chander Prakash: (i) The testimony of PW2 (ii) testimony of PW3 to establish the motive (iii) recovery of pistol (iv) recovery of motorcycle.
Devender: (i) The testimony of PW2 (ii) testimony of PW3 to establish the motive.
However, during trial prosecution failed to establish the motive; it also failed to prove the recovery of pattinuma knife, pistol and motorcycle. Thus, the only evidence remains against the accused persons is the testimony of PW2. Now question arises as to whether the testimony of PW2 establishes the guilt of accused persons?
135. Perusal of testimony of PW2 reveals that when he opened the door, he saw that accused persons were quarrelling with deceased. He further saw that deceased was caught hold by accused Devender from behind whereas accused Chander Prakash was having a katta in his hand and he had pointed out at the deceased. He further saw that accused SC No. 11/2011 & 42/2011 Page no. 72 of 80 State Vs. Naval Kishore @ Nawal & Ors.
Nawal Kishore was having an iron patti and he was assaulting the deceased by the said patti. He further deposed that when he rushed towards his brother-in-law in order to save him, accused Chander Prakash said, let Dalip be eliminated today. Thereafter, accused Chander Prakash fired a shot targeting the deceased, which hit in his abdomen. He further deposed that when accused Chander Prakash fired a shot, at that time, deceased was caught hold by the accused Devender and when Dalip was lying on the road, Chander Prakash put his leg and thereafter fired a shot at him. It means that accused Chander Prakash had fired the shot with an intention to eliminate Dalip @ Babloo. From the testimony of PW35, who conducted the post-mortem on the dead body of deceased, it is abundantly clear that both the shots were hit in the abdomen of the deceased and caused injury no. (iv) and (v) as mentioned in Ex. PW35/B. He further deposed that the cause of death was shock as a result of multiple injuries to chest and abdomen, caused by rifled fire arm from close range. All the injuries were ante-mortem in nature and fresh in duration. External injury no. (iv) and (v) along with their corresponding injuries were fatal in ordinary course of nature, collectively as well as separately. It means that the shots were fired with an intention of causing bodily injuries to the deceased and the bodily injuries intended to be inflicted were sufficient in the ordinary course of nature to cause death. He further deposed that the shots were fired within the range of one metre. PW2 in his cross-examination deposed that accused Chander Prakash had fired the shot at deceased from the distance of one or two steps and PW2 had seen the said incident from the distance of 6-7 paces. Thus, the testimony of PW2 is corroborated by the medical opinion that shots were fired from close range. PW2 further deposed that there was electricity in the street and he had seen the incident in the street light from the close range i.e. from 6-7 paces. Since, PW2 knew the accused person previously, there was no difficulty in identifying SC No. 11/2011 & 42/2011 Page no. 73 of 80 State Vs. Naval Kishore @ Nawal & Ors.
them. Since, the accused Devender caught hold the deceased and Nawal Kishore assaulted the deceased by the means of an iron patti, this establishes that they had common intention with the accused Chander Prakash, thus in terms of Section 34 of IPC, they are also liable for the act of firing of accused Chander Prakash. Indisputably, the said incident had taken place in the dead night at about 2.40 am and all the accused persons assaulted the deceased person together, which further establishes that they had common intention in assaulting the deceased. PW2 categorically deposed that accused Nawal Kishore assaulted the deceased by the means of an iron patti. As per post-mortem report Ex. PW35/B, deceased had sustained 3 incised wound i.e. injury no. (ii) (ix) and (xv), which are quite possible by the said iron patti. Besides that deceased had also sustained lacerated wounds and abrasion, which might be inflicted when he was assaulted by the accused persons.
136. Thus, it is established that accused persons in furtherance of their common intention committed the murder of Dalip @ Babloo, thus they are liable for the offence punishable under Section 302 read with Section 34 IPC. Since, it is also established that accused Chander Parkash @ Chhotu had used country-made pistol in commission of the offence, thus he is also liable for the offence punishable under Section 27 (1) of the Arms Act.
137. No doubt in the instant case, prosecution has failed to prove the connected evidence such as recovery of knife, recovery of motorcycle and recovery of pistol. Recovery of pistol was one of the most relevant evidence to bring home the guilt of accused persons because it would help the prosecution to establish that the recovered cartridges were fired from SC No. 11/2011 & 42/2011 Page no. 74 of 80 State Vs. Naval Kishore @ Nawal & Ors.
the said pistol. But unfortunately due to defects in the investigation, prosecution failed to establish the recovery beyond the shadow of all reasonable doubts. Despite the fact that prosecution has failed to prove the above connected evidence, Court relies upon the sole testimony of PW2 because Section 134 of Indian Evidence says that no particular number of witnesses shall in any case be required for proof of any fact. Further, it is well settled law that conviction can be based on the solitary statement of a witness, if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. As already discussed that there is no reason to disbelieve the testimony of PW2, he is a trustworthy witness, thus, Court relies on his testimony to record the conviction.
138. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused persons beyond the shadow of all reasonable doubts, thus, I hereby hold the accused persons namely Naval Kishore @ Nawal, Devender @ Pappu and Chander Prakash @ Chhotu guilty for the offence punishable under Section 302 read with Section 34 IPC. I also hold the accused Chander Parkash @ Chhotu guilty for the offence punishable under Section 27 (1) of the Arms Act. Since, prosecution has failed to prove the recovery of pistol beyond the shadow of all reasonable doubts, I hereby acquit him for the offence punishable under Section 25 of Arms Act.
139. Before resting my pen, it is pertinent to state that the manner in which the investigation was conducted and deposition made by the police officials is not appreciable. Even investigating officers were not vigilant at the time of recording the disclosure statement of the accused persons. Since in such heinous offences, prosecution can not tolerate such type of SC No. 11/2011 & 42/2011 Page no. 75 of 80 State Vs. Naval Kishore @ Nawal & Ors.
lapses, thus it is essential that the same should be brought in the notice of Higher Authority to take appropriate steps to ensure that the same should not be repeated in future. With this hope and trust, copy of judgment be sent to Commissioner of Police to enable him to take appropriate steps as he deems fit.
Announced in the open Court On this 9th day of October, 2012 (Pawan Kumar Jain) Additional Sessions Judge-01, Central, THC/Delhi SC No. 11/2011 & 42/2011 Page no. 76 of 80 State Vs. Naval Kishore @ Nawal & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 11/11
ID No: 02401R0176402011
FIR No. : 03/11
PS. : Anand Parbat
U/S : 302/34 IPC 25 &
27 Arms Act
STATE
VERSUS
Naval Kishore @ Nawal
S/o Rajender Prashad
R/o H. No. 5/575, Gali No. 5, Punjabi Basti,
Anand Parbat, New Delhi.
........Convioct No. 1
Devender @ Pappu
S/o Ram Prashad,
R/o H. No.3/98, Gali No. 5, Punjabi Basti,
Anand Parbat, New Delhi. ........Convict No. 2
Chander Prakash @ Chhotu
S/o Ram Prashad,
R/o H. No. 3/98, Gali No. 5, Punjabi Basti,
Anand Parbat, New Delhi. ........Convict No. 3
Present Sh. R.K. Tanwar, learned Additional Public Prosecutor for the State along with Ms. Anju, wife of deceased Sh. S.P. Yadav Advocate, learned counsel for convicts Devender and Chander Prakash Sh. Raj Pal Singh Advocate, learned counsel for convict Nawal Kishore SC No. 11/2011 & 42/2011 Page no. 77 of 80 State Vs. Naval Kishore @ Nawal & Ors.
ORDER ON THE POINT OF SENTENCE(ORAL):
1. Vide separate judgment dated October 9, 2012, accused persons namely Naval Kishore @ Nawal, Devender @ Pappu and Chander Prakash @ Chhotu were held guilty for the offence punishable under Section 302 read with Section 34 IPC. Accused Chander Parkash @ Chhotu was also held guilty for the offence punishable under Section 27 (1) of the Arms Act.
2. Sh. S. P. Yadav, Advocate appearing for convict no. 1 & 2 submits that convict no. 1 is 42 years old having three children including one marriageable daughter and has no criminal antecedents. It is further submitted that convict no. 2 is 49 years old having six children i.e. four daughters and two sons and he has also no criminal antecedents. It is further submitted that both the convicts are sole bread earner of their respective family.
3. Sh. Raj Pal Singh, Advocate appearing for convict no. 3 submits that he is 28 years old having three children and has no criminal antecedents and he is the sole bread earner of the family.
4. Counsel appearing for convicts submits that present case is not the rarest of rare cases, thus submits that convicts deserve normal sentence as provided under the Penal Code.
5. Learned Additional Public Prosecutor fairly concedes that it is not the rarest of rare cases, thus convicts deserve normal sentence as provided under the Penal Code. However, he submits that deceased had SC No. 11/2011 & 42/2011 Page no. 78 of 80 State Vs. Naval Kishore @ Nawal & Ors.
left behind his wife Ms. Anju and two minor sons aged about three years and one and a half year, thus it is submitted that substantial fine amount be imposed so that victims of the crime may suitably be compensated under Section 357 Cr.P.C.
6. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
7. From the submissions of counsel for the parties, it is clear that it is not the rarest of rare cases, thus convicts deserver lesser sentence as provided under the Penal Code. Accordingly, I hereby sentence the convicts namely Naval Kishore @ Nawal, Devender @ Pappu and Chander Prakash @ Chhotu rigorous imprisonment for life for the offence punishable under Section 302 read with Section 34 of IPC. In addition to the above, convict no. 3 Chander Prakash @ Chhotu is burdened with a fine of ` 1.50 lac in default further simple imprisonment for three years whereas convict no. 1 Naval Kishore @ Nawal and convict no. 2 Devender @ Pappu are burdened with the fine of ` 75,000/- each in default further simple imprisonment for one year for the offence punishable under Section 302 read with 34 IPC. Variation in the acts of convicts is the cause of variations in the amount of fine.
8. I further sentence convict no. 3 Chander Prakash @ Chhotu rigorous imprisonment for five years and a fine of ` 15,000/- in default simple imprisonment for six months for the offence punishable under Section 27 (1) of the Arms Act.
9. All sentences shall run concurrently. Convicts shall be entitled SC No. 11/2011 & 42/2011 Page no. 79 of 80 State Vs. Naval Kishore @ Nawal & Ors.
for the benefit of Section 428 Cr.P.C. If fine amount is paid, same shall be deposited in 'Victims Compensation Fund'.
10. In order to meet the hardship of the victims, legislature by way of Amendment Act 2008 (5 of 2009) inserted Section 357A in the Code of Criminal Procedure. Indisputably, Dalip @ Babloo had left behind his wife Ms. Anju and two minor sons aged about three years and one and a half year. Due to the acts of convicts, the family members of deceased not only suffered the loss of human life but they also suffered the monetary loss. As submitted by Ld. Addl. P. P that Ms. Anju has no independent regular source of income and she has to look after two minor sons also, thus, I am of the view that victims i.e. Ms. Anju and her minor sons are entitled for compensation as well as rehabilitation in terms of Section 357 A Cr.P.C, thus, I hereby recommend their names to the District Legal Service Authority (Central District) for suitable compensation. Copy of order be sent to the Secretary, District Legal Service Authority (Central District) for compliance and taking necessary steps.
11. Copy of judgment along with order on the sentence be given to the convicts/their counsel free of cost.
12. File be consigned to record room.
Announced in the open Court On this 12th day of October, 2012 (Pawan Kumar Jain) Additional Sessions Judge-01, Central, THC/Delhi SC No. 11/2011 & 42/2011 Page no. 80 of 80