Delhi District Court
State vs Sri Ram on 8 May, 2008
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS,
ROHINI : DELHI
SC No. 100/2 (RBT)
Date of institution of the case: 22/12/2006
Date of Decision: 08/05/2008
State
Versus
Sri Ram
S/o Sh. Jawahar Lal
R/o Village-Kharva,
PO-Aakhopur, PS Ranipur,
District-Mau Nath Bhanjan,
Uttar Pradesh
.. Accused
FIR No. 332/2006
P.S. Paschim Vihar
U/s. 302 IPC
JUDGMENT
First the Facts On 16/4/2006 at about 4 p.m., dead body of Nazim Khan stated to have been found lying near a Nullah, in the area of Meera Bagh, Paschim Vihar, Delhi. Accusation levelled against the accused is that he did commit murder of -:2:- Nazim Khan by causing injuries on his person with stones and knife. That is how, he has been facing trial for an offence u/s 302 IPC.
On 17/04/2006 at about 05:30 p.m., police of PS Paschim Vihar received information from PCR that one Surender had informed from telephone No. 25255560 that a dead body was lying towards the Western Side of police picket, on the bank of Nullah near Kesho Pur, Meera Bagh Petrol Pump. This information was recorded in DD No. 38 B. ASI Jai Singh was assigned investigation. On reaching the place disclosed in the information as available in DD, ASI Jai Singh found dead body of young boy lying on the heap of stones. ASI Jai Singh requisitioned crime team. SI Lalit Kumar of crime team visited the spot with his team, prepared report regarding spot inspection. Constable Jaiveer Singh, photographer of Mobile Crime Team also inspected the spot and took photographs from different angles. At the time of spot inspection, ASI Jai Singh picked up blood stained earth, control earth, a stone having stains of blood and a stone, turned the same into parcels, sealed and seized them.
Search of the dead body by ASI Jai Singh led to -:3:- recovery of visiting card , a small diary containing telephone numbers and an election I-Card. ASI Jai Singh seized these items. Thereafter, the dead body was dispatched to Sanjay Gandhi Memorial Hospital.
Nazim (since deceased) was found missing in April, 2006. His brother Naeem Khan (PW3) searched for him but could not trace him out. Two days thereafter Naeem received information from Police Station Paschim Vihar and thereupon accompanied by Muzib, his cousin brother and Nizamuddin, son of his maternal uncle reached Police Station Paschim Vihar. When Naeem Khan reached Police Station Paschim Vihar, police showed him a purse, and he identified it to be that of his brother Nazim (since deceased) from the I- Card and photo of his brother. From the Police Station, Naeem Khan accompanied the police to Sanjay Gandhi Memorial Hospital and that is how he identified the dead body of his brother in the manner indicated above.
On 19/04/2006, ASI Jai Singh received message from Mortuary about arrival of Naeem, brother of the deceased, in connection with identification of the dead body. Thereupon ASI reached the Mortuary. Naeem identified the -:4:- dead body of his brother.
ASI Jai Singh submitted application for preservation of dead body. The ASI submitted another application for conducting of autopsy. Brief facts were
prepared by ASI and request was made for autopsy. ASI Jai Bhagwan carried out inquest proceedings of the dead body and prepared inquest report.
Dr. Ashish Jain alongwith Dr. Manoj Dhingra conducted autopsy on the person of Nazim on 19/04/2006 at about 12 noon, and prepared report. After the autopsy the dead body was delivered to Naeem Khan. The doctor handed over two sealed parcels, sealed with the seal of AJK and sample seal to Constable Virender Kumar, who in turn deposited the same with MHC (M) on return to P.S. After identification of the dead body of his brother Nazim (since deceased), Naeem Khan made statement at the Mortuary. ASI Jai Singh appended endorsement to the statement and sent Constable Virender Kumar from the Mortuary to the Police Station and got the case registered.
Inspector Randeep Singh Talwar took up investigation of the case, reached Sanjay Gandhi Memorial -:5:- Hospital, where ASI Jai Singh was present. The ASI produced before the Inspector all the seizure memos prepared by him in addition to sealed parcels. Inspector Randeep Talwar accompanied by his staff reached near the Nullah in the area of Kesho Pur near Meera Bagh. Inspector Randeep Talwar accompanied by ASI and other police staff reached Village Khyala and enquired about the accused and Nazim (since deceased).
On 21/04/2006, Inspector Randeep Talwar accompanied by Head Constable Somedev and Constable Narender left for investigation of this case and reached Peera Garhi Crossing. There the Inspector received a telephonic call from PW Afzal regarding presence of accused near Azadpur Traffic Light Junction. PW Afzal also reached Peera Garhi Crossing and as such he was also joined in the raiding party. The raiding party then reached Azadpur near Traffic Light Junction. At the instance of Afzal, accused Sri Ram was apprehended.
During interrogation, accused made disclosure statement before Inspector Randeep Talwar. In pursuance of the disclosure statement, he led the police party headed by -:6:- the Inspector to the place of occurrence near Ganda Nullah and identified one big stone having blood stains on it, and got recovered the same. The accused then led the police party headed by Inspector Randeep Talwar to a place by the side of Nullah as the place where he is stated to have thrown a knife i.e. weapon of offence. He also pointed out to the police a place where he had allegedly thrown eye ball of Nazim Khan (since deceased).
Accused then led the police party headed by Inspector Randeep Talwar to a factory situated at WZ-123, Village Khyala and produced a T-shirt Ex.P1 which he was wearing at the time of occurrence. The shirt was seized.
SI Mahesh Kumar inspected the spot on 22/06/2006 at the pointing out of ASI Jai Singh, took rough notes and measurements of the spot and ultimately prepared scaled site plan.
On completion of investigation, challan was put in court.
After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble Court of Session.
-:7:-Charge Prima facie case having been made out, charge for an offence U/s. 302 IPC was framed against the accused on 19.09.2006. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. Prosecution Evidence In order to prove its case, prosecution examined following 15 PWs:
PW1 Dr. Ashish Jain and PW2 Dr. Manoj Dhingra have proved autopsy report Ex. PW1/A. PW3 Naeem Khan is real brother of Nazim (since deceased).
PW4 Constable Narender Singh has proved recording of DD No. 38B Ex. PW4/A. PW6 Women ASI Pushpa has deposed about recording of FIR Ex.PW6/A. PW5 Constable Virender Kumar, PW7 SI Mahesh Kumar, PW8 SI Lalit Kumar, PW9 SI Jaibir Singh, PW10 HC Suresh Kumar, PW11 HC Somdev, PW12 Constable Narender Sharma, PW13 HC Raj Kumar, PW14 ASI Jai Singh and PW15 Inspector Randeep Talwar have deposed about -:8:- investigation part of the prosecution story. Defence Plea When examined U/s. 313 CrPC, the accused denied all the incriminating circumstances appearing in evidence against them and claimed false implication.
Plea of the accused is that he was picked up by the police on 19/04/2006 from his house in Village Rajapur Karevan, District Mau Nath Bhanjan, UP, then brought to Mian wali Gali in the area of Peera Garhi Crossing and then kept there for about 5/10 minutes and then brought to PS Paschim Vihar and then falsely implicated.
However, accused opted not to lead evidence in defence.
Arguments heard. File perused.
Information regarding presence of dead body of young boy reached Police Station Paschim Vihar on 17/04/2006. ASI Jai Singh (PW14) reached near Ganda Nulla, Meera Bagh, Kesho Pur Depot and found the dead body. According to the ASI, there was none to identify the dead body. However, search of the dead body led to recovery of visiting card, a small diary containing telephone numbers and -:9:- an election I-Card, which he seized vide memo Ex.PW14/A. Further according to ASI Jai Singh on 19/04/2006, he received message from Mortuary where dead body of Nazim was lying that someone had reached there in connection with identification of the dead body. Thereupon he reached the Mortuary and found Naeem present there who identified the dead body of his brother Nazim. In this regard, he recorded his statement Ex.PW14/B. Delay in identification of dead-body From the above statement of ASI Jai Singh, it appears to be the case of prosecution that the dead body was identified to be of Nazim on 19/4/2006. On the other hand, statement of Naeem Khan, brother of Nazim (since deceased) would reveal that according to him he first of all reached P.S. Paschim Vihar and not the Mortuary, and that too on 16/4/2006 and not on 19/04/2006. According to PW3, he reached the P.S. Paschim Vihar where police showed to him identity card and photographs of his brother lying in a purse and thereafter on reaching the mortuary he identified the dead body to be of his brother. When the identity card and photo had been seized by the police on 17/04/2006, the day dead -:10:- body was recovered, it cannot be said that the police had no clue about identification of the dead body. Police could go to the address available in the Election I-Card or call given at telephone numbers and get the dead body identified. However, no step appears to have been taken in this regard. Rather material available on record would reveal that the police kept on waiting that someone would come and identify the dead body.
Statements of PW14 ASI Jai Singh would reveal that PW3 Naeem identified the dead body on seeing the dead body. It is not in his statement that PW Naeem first of all came to the police station, saw the I-Card and the photograph and thereafter they went to the Mortuary. On the other hand, PW3 Naeem Khan has deposed that first of all he accompanied by two others reached Police Station, where he was shown identity card and photo of his brother and thereafter he accompanied the police to the Mortuary and identified the dead body on 16/04/2006. This material contradiction in the statements of two PWs creates doubt as to on which date the dead body was identified i.e. whether on 16/04/2006 as per statement of PW3 or on 19/04/2006 as -:11:- stated by PW14 ASI Jai Singh.
Delay in recording statement of Naeem Present case was registered on the statement of Naeem Khan recorded on 19/04/2006. When PW3 Naeem Khan deposed that he went to Police Station Paschim Vihar on 16/04/2006, it remains unexplained as to why his statement was not recorded on the same day and as to why it came to be recorded on 19/04/2006. It is well settled that delay results in embellishment which is creature of afterthought. Bereft of advantage of spontaneity, danger creeps in of an introduction of concocted version, exaggerated account as a result of deliberation and consultation. Thus, delay should be satisfactorily explained. In State of Karnataka v. Mapilla P.P.Soopi, AIR 2004 SC 85, Hon'ble Apex Court observed that unexplained delay in lodging complaint with the police contributes to the doubt in the prosecution version.
Accused last seen in company of deceased It is case of prosecution that on 16/04/2006 one Bhure Khan saw the deceased in the company of Sri Ram accused. According to PW3 Naeem Khan, he came to know -:12:- from Bhure Khan that on 16/04/2006 he had seen his brother Nazim in the company of Sri Ram accused. However, in his cross examination, PW3 Naeem Khan displayed ignorance as to when Bhure Khan told him to have seen his brother in the company of the accused.
In the given facts and circumstances, statement of Bhure Khan was of much significance. However, despite efforts prosecution could not secure presence of Bhure Khan. In absence of statement of Bhure Khan and the statement made in this regard by PW3 being hearsay evidence, prosecution can not take advantage of it, and as such it can safely be said that prosecution has not been able to establish that Nazim Khan was last seen in the company of Sri Ram accused on 16/04/2006.
According to PW3 Naeem Khan, his brother Nazim went missing w.e.f. 16/04/2006. According to him, his brother was missing w.e.f. 4 p.m. Further, according to the witness, he searched for his brother but he was not traceable. Naeem Khan should have reported the matter to the police on 16/04/2006 or atleast on the next day, even it be assumed that he learnt from Bhure Khan that his brother was seen in -:13:- the company of Sri Ram accused on 16/04/2006. But the fact remains that PW3 Naeem did not report the matter to the police on 16/04/2006. He went to Police Station two days thereafter and that too on receipt of information from PS Paschim Vihar. All this creates doubt in the version narrated by PW3 Naeem Khan that he was informed by Bhure Khan to have seen Nazim in the company of Sri Ram accused on 16/04/2006.
Arrest & Recoveries Prosecution has placed reliance on disclosure statement Ex.PW11/A made by Sri Ram accused on 19/04/2006 and recovery of stone Ex.P12/1 and T-shirt Ex.P1 stated to have been used in causing injuries on the person of Nazim Khan.
It is case of prosecution that on 19.04.2006, accused was apprehended by the police party headed by Inspector Randeep Talwar at Peera Garhi Crossing, in the area of Paschim Vihar; that he made disclosure statement and in pursuance thereof, got recovered his T-shirt stating that he was wearing it at the time of commission of the crime. In this regard, prosecution has placed reliance on the -:14:- statements of PW11 HC Somdev, PW12 Constable Narender Sharma and PW15 Inspector Randeep Talwar.
According to PW15 Inspector Randeep Talwar, on 21.04.2006, he accompanied by HC Somdev and Constable Narender left the police station for investigation of this case.
On reaching Peera Garhi Crossing, they received a phone call from Afzal Khan about presence of Sri Ram accused near Traffic Light Junction, Azadpur; that PW Afzal Khan joined them at Peera Garhi Crossing and thereafter at the instance of Afzal Khan, Sri Ram accused was apprehended from the Traffic Light Junction.
It may be mentioned here that although according to PW15 Inspector Randeep Talwar, the accused was arrested on 21.04.2006, PW11 HC Somdev deposed the date of his arrest as 19.04.2006. Had the accused been apprehended on 21.04.2006, PW11 HC Somdev would not have stated in contradiction with the statement made by PW15. Even PW12 Narender Sharma, the other member of the police party, could not tell the exact date of arrest of Sri Ram accused. According to him, it was on 21st of a month, in the year 2006, that Sri Ram accused was apprehended. -:15:-
As noticed above, according to PW15 Inspector Randeep Talwar, while the party, headed by him, was present at Peera Garhi Crossing, he received telephonic call from PW Afzal Khan. However, PW15 nowhere deposed as to on which telephone he received the call from PW Afzal Khan. It is not in the statement of PW15 that he was carrying a mobile phone. In the given situation, it was for the prosecution to explain as to on which telephone any such call was received and how PW Afzal Khan knew about telephone number, where PW15 attended the call. Furthermore, had any such call been received by the Inspector, PW11 HC Somdev and PW12 Constable Narender Sharma must have deposed about the same. A perusal of their statements made in court would reveal that none of them deposed about receipt of any such call by the Inspector from Afzal Khan. Rather, according to these two police officials (PW11 and PW12), Afzal Khan met them at Traffic Light Junction, in the area of Azadpur and provided information about presence of Sri Ram accused. So, the version narrated by PW15 Inspector Randeep Talwar does not find corroboration from the statements of PW11 and PW12, members of his party, regarding receipt of telephonic -:16:- message.
It is also significant to note that prosecution could not secure presence of PW Afzal Khan. In absence of corroboration from the statement of Afzal Khan and in view of the above noticed contradictions in the statements of the three PWs, it becomes doubtful if Sri Ram accused was apprehended in the manner put forth by the prosecution.
So far as disclosure statement Ex. PW11/A is concerned, the same is stated to have been recorded at Peera Garhi Crossing. In the given circumstances, examination of Afzal Khan, one of the witnesses to the disclosure statement, was of much significance. However, prosecution has not been able to secure presence of Afzal Khan. Therefore, in this regard, prosecution has relied only on the statements of police officials.
As regards contents of the disclosure statement, according to PW11 HC Somdev, Sri Ram accused offered to get recovered a knife, used in commission of the crime, from the Ganda Nullah, in the area of Keshopur. It is not case of prosecution that any knife was recovered in pursuance of any such disclosure statement made by Sri Ram accused. As per -:17:- prosecution version, no knife could be recovered from the place pointed out by the accused. So, the disclosure statement does not find corroboration from discovery of any incriminating material. A perusal of statement of PW12 Constable Narender Sharma would reveal that he nowhere deposed about making of any disclosure statement by the accused to the effect that he had kept concealed a knife or that he could get the same discovered. On the other hand, PW12 deposed that accused disclosed, during interrogation, that he had kept concealed a T-shirt which he was wearing at the time of commission of the crime, at Village Khayala, and that he could get the same discovered. Furthermore, the witness displayed ignorance if this disclosure statement was recorded. PW11 HC Somdev nowhere deposed that Sri Ram accused disclosed about concealment of any T-shirt at Village Khyala or offered to get the same discovered.
It is significant to note that whereas according to PW11 HC Somdev, Sri Ram accused made disclosure statement on 19.04.2006, according to PW15 Inspector Randeep Talwar, Sri Ram accused made disclosure statement on 21.04.2006. According to PW15, Sri Ram -:18:- accused led the police party headed by him to a place near Ganda Nullah and identified a big stone having blood stains, and got the same recovered by pointing out the same as weapon of offence. The witness further stated that he picked up the stone, turned it into a parcel, sealed the parcel and then seized it vide memo Ex. PW12/A. PW11 HC Somdev was allegedly also a member of the same party. Had any such stone been got recovered by the accused on 21.04.2006, PW11 must have deposed about its recovery. However, a perusal of his statement made in court would reveal that he nowhere deposed about recovery of any big stone. He deposed about recovery of one T-shirt and then specifically stated that no other incriminating material was got recovered by the accused. Even PW12 Constable Narender Sharma nowhere deposed about recovery of any big stone at the instance of the accused from any such place. So, the statement of PW15 Inspector Randeep Talwar regarding recovery of big stone at the instance of the accused does not find corroboration from statements of PW11 and PW12, which creates doubt in the version of prosecution if the accused actually made any such disclosure statement or got -:19:- recovered any such stone, particularly when no witness from the public was associated at the time of any such recovery, despite opportunity.
So far as recovery of T-shirt at the instance of the accused is concerned, case of prosecution is that accused got recovered a T-shirt, having stains of blood, from Village Khayala. According to PW15 Inspector Randeep Talwar, the accused led his party to a factory situated at WZ-123, Village Khyala, and produced T-shirt Ex. P1 stating that he was wearing the same at the time of commission of the crime. This T-shirt was then turned into a parcel, sealed with the seal bearing impression "JS" and then seized vide memo Ex. PW11/C. According to PW11 HC Somdev, the accused got recovered a T-shirt from his house No. WZ-123, Village Khayala. Case of prosecution is that this T-shirt was got recovered in pursuance of disclosure statement made by the accused. However, PW11 nowhere deposed that the accused had disclosed about concealment of any such T-shirt or offered therein to get the same recovered. Furthermore, as noticed above, according to PW11 HC Somdev, the T-shirt was recovered after arrest of the accused on 19.04.2006. On -:20:- the other hand, according to PW15 Inspector Randeep Talwar, the T-shirt was got recovered by the accused on 21.04.2006. So, both the PWs are in contradiction with each other on this material aspect.
PW12 Constable Narender Sharma, another member of the party, deposed that they reached WZ-123, Village Khayala, and the accused got recovered a T-shirt. He deposed that the SHO had sent him out of the room from where the T-shirt was so recovered, and as such, he could not tell as to what was done in respect of the T-shirt. The witness also could not give description of the document prepared at that time. So, PW12 has neither deposed about turning of the T-shirt into a parcel nor about its seizure vide any recovery memo. He also did not depose about attestation of any recovery memo. Recovery memo Ex. PW11/C bears attestation of PW12 Constable Narender. Had the Constable attested this document, he would not have omitted to state so. In such a situation, he would have also not stated that the SHO had sent him out of the room, and as such, he did not know as to what was done in respect of the T-shirt.
Furthermore, there is nothing in the statements of -:21:- PWs that the shirt stated to have been so recovered was having any stains of blood. In the given facts and circumstances, it was duty of the investigating officer to join anyone from the said factory for the purposes of witnessing the recovery of T-shirt. However, there is nothing on record to suggest that the Investigating Officer associated anyone from the factory. Non-joining of any witness from the factory before or at the time of alleged recovery of T-shirt, creates doubt in the version of prosecution about any such recovery.
As noticed above, none of the PWs has deposed about recovery of any blood stained T-shirt from the accused. It was for the prosecution to establish that the T-shirt when analysed at CFSL, Kolkatta, was found stained with blood of the deceased. However, in this case, no CFSL report was placed or got proved on record despite opportunity. In absence thereof, it cannot be said that any such T-shirt was having stains of blood of the deceased. Consequently, it can safely be said that prosecution has failed to connect the accused with commission of the murder of Nazim Khan. Conclusion In view of the above discussion that prosecution -:22:- has failed to establish that accused was seen last in the company of the deceased on 16.04.2006 or that the accused got recovered any stone, stained with blood, or that any T- shirt, having any stains of blood of the deceased, was got recovered by the accused or that any place was pointed out by the accused, this court has no option but to hold that prosecution has miserably failed to substantiate the accusation levelled against the accused. Consequently, Sri Ram accused is acquitted in this case.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court On dated 08th of May, 2008 [ NARINDER KUMAR ] Additional Sessions Judge Fast Track Court Rohini : Delhi 08/05/2008