Delhi District Court
Sh. G.P. Jaiswal vs State Of Nct Of Delhi on 5 December, 2017
Criminal Revision No.271/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 271/2017
Under Section : 279/304A IPC
FIR No. : 100/2005
PS : Geeta Colony
CNR No. : DLET01-011913-2017
In the matter of :-
SH. G.P. JAISWAL
S/o. Late Sh. B.R. Jaiswal,
R/o. 766/18, Shastri Nagar, Rohtak,
Haryana-124001.
............PETITIONER
VERSUS
1. STATE OF NCT OF DELHI
2. UNTRACE
...........RESPONDENTS
Date of Institution : 17.10.2017
Date of Receiving : 23.10.2017
Date of reserving order : 17.11.2017
Date of pronouncement : 05.12.2017
Decision : Petition is dismissed.
ORDER
1. This revision petition is directed against the order dated 22.07.2017, passed by trial court in a case titled as State v. Untrace, bearing FIR No.100/2005, under Section 279/304A IPC. Vide impugned order dated 22.07.2017, ld. trial court dismissed the protest petition filed by petitioner herein.
BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are that an untrace report was filed by police in FIR No.100/2005 PS Page 1 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 Gandhi Nagar registered under Section 279/304A IPC. Petitioner herein is father of deceased Sanjay Jaiswal, who was the victim in this FIR. Being dissatisfied with the untrace report, petitioner herein filed protest petition before the trial court seeking further investigation. As per report of IO, this case was registered on the basis of an information given by PCR official in the mid night of 20.03.2005 at about 01:00 AM. Information was given that one RTV vehicle had fled away after causing an accident and injured was being taken to JPN hospital. Injured was motorcyclist. SI Kishore Pandey was assigned this call. He visited the place of accident at Pusta Road, Shamshan Ghat, Opposite bus stand and thereafter, he proceeded to JPN hospital. In the hospital, he obtained MLC of injured Sanjay, who was declared brought dead. No eyewitness was found at that time. Thereafter, further investigation was conducted. Mr. Lalit Mohan was companion of deceased Sanjay and he stated before IO that he along with Sanjay was coming on the motorcycle from Noida and both of them had taken liquor. Before accident, Sanjay was trying to overtake one RTV and in that process front wheel of motorcycle went through a pitch on the road, resulting into fall on the road. Someone informed PCR and PCR van took them to the hospital. Mr. Lalit remained in the hospital for some time, however, after being informed about death of Sanjay, he became nervous and left for his house at Rohtak through bus. He again came back to hospital along with his family members next day. He had taken mobile phone of Sanjay, but same was misplaced by him.
3. Petitioner herein was having suspicion against Mr. Lalit Mohan and for such reasons he gave application to the police to look into the role Page 2 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 of Lalit, alleging that after getting information about this accident, he had made call on the mobile phone of Sanjay, which was picked by Lalit and Lalit informed that Sanjay was in serious condition. He further alleged that Lalit had fled away from the hospital and he knew Lalit for last 10 years. He did not like Lalit because of his conduct and he had warned his son Sanjay also to remain aloof from Lalit. Petitioner alleged that on 19.03.2005 Lalit took Sanjay out for roaming around and he had firm belief that Lalit had murdered Sanjay out of well thought plan. Petitioner further pointed out that the motorcycle was not having such damage and even mobile phone of Sanjay was not recovered.
4. On the basis of representation of petitioner, IO conducted further investigation and filed untrace report. However, vide order dated 04.04.2014, ld. MM had passed directions for further investigation. Though, in that order no particular point for investigation was mentioned. Investigation was transferred to DIU (East) and thereafter, once again untrace report was filed. Petitioner in his protest petition pointed out that though his son Sanjay had suffered grievous injury in this accident, but Lalit did not sustain any single injury. All the facts about accident was narrated by Lalit to the police, but police did not conduct the investigation properly and simply relied upon the version of Lalit. Petitioner averred that his son Sanjay never used to consume liquor and Lalit had falsely claimed that they had consumed liquor. Reference was made to viscera report of deceased, wherein no alcohol was detected. Petitioner further raised point that IO had examined some employees of Pacific Blue Bar (wherein allegedly liquor was consumed by both), but IO did not Page 3 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 examine the manager of that bar and the statement given by two bar men were contradictory as they had given different name of the bar. There were some overwriting also. IO also failed to collect cash memo, entry register, CCTV footage etc. IO did not rely upon the viscera report and obtained further information from the Department of Forensic Medicine Science, MAMC, New Delhi. Even in their opinion, the expert doctors stated that a man of average size could destroy about 65-150 ml of Whiskey in the time period of three hours and if alcohol consumed was lesser than this quantity, then alcohol possibly could not be dictated in the viscera. Petitioner pointed out that time of accident was shown as 12:20 AM -12:30 AM and deceased was declared dead after 15 minutes, from his being removed to the hospital i.e. around 01:30 AM. If average time of consuming liquor is presumed to be 11:30 PM and if Lalit is to be believed, then they consumed four pegs and one beer each and so much of alcohol could not be removed from the body of Sanjay. Hence, alcohol taken by Sanjay was not established which shows that Lalit had given false statement. Even mobile phone of Sanjay was not seized by police and Lalit destroyed the phone to destroy the evidence. The polygraph test of Lalit after more than five years of the accident was a moon shine, because in so much of time period Lalit could have prepared himself to pass this test. Petitioner once again raised his apprehension that Lalit had killed Sanjay.
5. Ld. MM while deciding the protest petition of petitioner, concurred with the conclusion of IO and accepted the untrace report while rejecting the protest petition.
GROUNDS : -
Page 4 of 12 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017
6. Being aggrieved of the impugned order dated 22.07.2017, petitioner has challenged the same on following relevant grounds :-
● That the impugned order passed by ld. Magistrate is erroneous and ld. Magistrate has not taken into consideration the vital defects in the untrace report. He mechanically confirmed the untrace report filed by the IO. That police filed untrace report without appreciating the facts and documents on record. ● That ld. Magistrate also did not bestow his attention so far as the legal lapse committed by the IO is concerned and he also did not look into the protest petition in a proper perspective so as to ascertain whether IO committed any legal error in preparing untrace report.
● That various efforts of deceased father for proper investigation against suspect Sh. Lalit Mohan to various authorities from pillar to post has gone in vain and no specific step has been taken by the police officials.
● That conduct of IO was so lethargic to investigate the matter fairly and the further investigation conducted by IO was merely an eye wash to escape from the wrath of the court and was highly prejudiced one.
● That ld. MM failed to appreciate that when the court after going through the untrace report dated 21.09.2013 seeing the gravity of the matter, the then ld. MM Ms. Surabhi Sharma vide order dated 04.04.2014 on its own directed to further investigate the matter again, which shows that the court itself was of the view that the matter is not properly investigated by the investigating officer and filing of untrace report again was without investigation by IO.Page 5 of 12 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 ● That as per knowledge of the family, deceased Sanjay Jaiswal never used to consume liquor, but Sh. Lalit Mohan Vashisth (friend of deceased) specifically stated that they both (he and deceased) were consuming liquor from specific Blue Bar, Noida. That the aforesaid fact was negated/disputed by visera report dated 19.01.2011 of deceased, which clearly stated that "alcohol not detected".
● That proper investigation was not carried out by IO to verify the alleged version of alcohol consumed by deceased and his friend as IO instead of conducting investigation and inquiries from the owner/ employees/ manager of the said "Blue Bar", just opted to take the statement of Bar Man Sh. Chandan Singh, but instead of "Blue Bar" address of his house was mentioned by IO. Even Sh. Chandan Singh was not identified by manager of "Blue Bar". That two statements of Sh. Chandan Singh in the judicial file are of same date and both are contradictory to each other. In the first statement, Sh. Chandan Singh stated that deceased and his friend came to "Blue Bar" to consume liquor, however, in his second statement he stated name of Bar as "Paradise Blue Bar". Hence, credibility of this witness is questionable in the eyes of law. ● That ld. Magistrate failed to appreciate that the concerned IO failed to collect and seize the available documentary proofs viz. Cash memo, Entry Register, CCTV Footage etc. of the Blue Bar. ● That ld. Magistrate failed to appreciate that the IO instead of proving the case of prosecution and instead of relying upon the viscera report of deceased, just to give benefit to Sh. Lalit Mohan and called for another report from Deptt. of Forensic Medicine of Page 6 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 Molana Azad Medical College, which mentions in the first line that "whether alcohol consumed about 2/3 hours before death can be detected in viscera depends upon the fact whether the alcohol consumed had been eliminated by the body before the person died or not." That elimination could be done in two manners either by vomiting or by passing urine, but suspect Lalit Mohan neither narrated anything about vomiting or urinating by the deceased on their way. Opinion given was that "A man of average size can destroy about 9 grms per hour, with a range variation of between 7 and 16 grams. Means that in three hours of time, a man of average size can remove between 21 to 48 grams of alcohol. Most of the spirit (such as Brandy, Gin, Whiskey, Rum, Vodka) contain about 32 grams of alcohol per 100 ml of the drink. Hence, within three hours of time a man of average size can remove between 65-150 ml of spirits like Whiskey. That if amount of alcohol consumed was less than this amount, it is possible that alcohol may not be detected in the viscera."
● That ld. Magistrate failed to appreciate that statement of suspect Lalit Mohan Vashist is contradictory to the statement given by Bar Man i.e. Sh. Chandan Singh Bisht. Lalit Mohan stated that they visited the Bar at 10:30 PM and consumed 4-4 pegs and Chandan Singh Bisht, solely alleged supporting witness, stated that they visited Bar at 10:00 PM and consumed 3-3 pegs. Which clearly proved IO failed to make proper interrogation from the aforesaid two witnesses i.e. suspect and deceased regarding said vital contradiction and variations.
● That ld. Magistrate failed to appreciate that after deceased was Page 7 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 declared dead, thereafter, suspect took away and concealed the mobile phone of the deceased, which shows his mala fide intentions.
● That ld. Magistrate failed to appreciate that suspect left hospital secretly after deceased was declared dead by the doctors. That despite of concealment of suspect for 12-13 hours, no investigation was carried out by IO in this regard from him. That suspect destroyed all evidences against him and created evidences in his favour by taking time and planned everything to save himself. Hence, both IO and suspect were co-operating each other by joining their hands in pocket.
● That ld. Magistrate failed to appreciate that suspect Lalit Mohan came again on 20.03.2005 at 06:30 PM and his medical examination was conducted at SDN hospital, Shahdara, Delhi. In his MLC, doctor opined "no fresh injury seen". That grievous injuries were sustained by deceased all over the body, but suspect did not sustain even a single injury or abrasion, which create doubt to the story narrated by suspect, but no proper investigation/ interrogation was conducted by IO in this regard. ● That ld. Magistrate failed to appreciate that suspect is engineer working for BSNL, who was well aware about the functioning of mobile phones and data available on the mobiles and all benefits and co-operation was given to the suspect by IO by not making any effort to trace the said mobile phone.
● That ld. Magistrate failed to appreciate that IO got conducted polygraph test of suspect after more than 5 years of the said incident and it is pertinent to mention here that after such long Page 8 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 duration a person could prepare himself to pass polygraph test. ● That ld. Magistrate failed to appreciate that concerned IO had not conducted fair and proper investigation of the present case and had left no stone un-turned for giving all benefits of doubt to main culprit by not making him accused in the present complaint. APPRECIATION OF ARGUMENTS, FINDINGS & DECISION :-
7. Ld. counsel for petitioner reiterated the same points as raised in the grounds during the arguments.
8. I have gone through the trial court record. For the purpose of further investigation, there must be some concrete ground and material to show that complete and proper investigation was not done, due to which right conclusion could not be arrived at. The petitioner has to point out those points, which being necessary part of investigation remained un-investigated and which must be investigated for a just conclusion. Unfortunately no such specific points for further investigation was either mentioned in the protest petition or in the grounds of revision. The protest petition and revision petition are based on dissatisfaction of the petitioner over particular conclusion given by IO.
9. It is not in dispute that Mr. Lalit was accompanying deceased Sanjay at the alleged time of accident. He stated that accident had taken place when Sanjay was trying to overtake RTV. IO examined some local persons i.e. Mr. Khurshid Ansari and Mr. Purab Ansari, who were having their shop near the place of accident. According to both these witnesses, they were at their shop and they heard noise of accident. When they came on the road, they found two boys fallen on the road with one motorcycle and those boys were later on removed Page 9 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 from the place by PCR van. One of them had also seen one RTV going Gandhi Nagar at high speed. Two more persons of that locality, who claimed to be residing in nearby jhuggi, were examined and they also told about hearing noise of accident. Thus, police did make local inquiry and the outcome of this inquiry was in favour of an accident, rather than murder.
10.The postmortem report also indicated towards possibility of road side accident as cause of death of Sanjay. Viscera report did not point out any alcohol and same has been basis for the petitioner to allege that Lalit lied before police. It has to be understood that the expert's opinion are not the conclusive evidence on a particular point. Their opinion can be helpful to reach particular conclusion, if there are other supporting evidence. Presence of alcohol in viscera of deceased Sanjay cannot be such an important fact in this case, so as to change the colour of offence. The viscera also reported absence of any poison. Hence, the fact remains that either under influence of alcohol or otherwise, Sanjay while driving motorcycle with Lalit, fell down on the road which ultimately caused his death. Mr. Lalit was subjected to polygraph test and once again it is necessary to point out that there is no evidentiary value of outcome of such test. The outcome is only helpful for investigation, in order to get some clue.
The allegation that Mr. Lalit prepared himself for polygraph test so as to pass the same, is merely based upon suspicion of the petitioner. The fact remains that Mr. Lalit withstood the polygraph test without any incriminating material being discovered against him.
11.CCTV footage from Pacific Blue Bar cannot be obtained at this stage and even if I assume that Sanjay and Lalit did not visit this bar to Page 10 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 consume the liquor, still the factum of accident on the road cannot be changed. PCR official had found both the persons on the road with motorcycle being in accidental condition and Sanjay being in injured condition. It was PCR official, who had informed police station about this accident.
12.Disappearance of Lalit from the hospital may be on account of various reasons. Mr. Lalit said that he had become nervous and perplexed. In the given scenario, the given reasons are very much probable and possible reasons for a person to get panicked. There cannot be any hard and fast formula for a person to behave and to take decision in a particular manner, in given situation. Thus, I find that the investigation carried out by the police cannot be said to be altogether misguided investigation. IO did touch all possible points of investigation. The plea of petitioner that Lalit had lied about consuming liquor in Pacific Blue Bar, Noida, does not have much force. Lalit had joined investigation repeatedly and IO did investigate the case taking in view the suspicion of petitioner. It is not required in law that IO has to act on the basis of suspicion, in order to give a particular conclusion. There must be some concrete evidence before reaching a particular conclusion. It is well apparent that petitioner wants prosecution of Lalit on the charges of murder of Sanjay, but apparently no such evidence or circumstances are appearing on the record. During investigation attempt was made to obtain bills etc. from Pacific Blue Bar as well, but the said bar was reportedly closed by that time and therefore, it cannot be said that police did not try to investigate on the points raised by petitioner.
13.At present, I do not find requirement of any further investigation. The Page 11 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.271/2017 plea of petitioner is basically for re-investigation because he is not satisfied with the conclusion given by IO on the basis of his investigation. However, direction of re-investigation is beyond the jurisdiction of ld. MM as well as this court. In these circumstances, I do not find any merit in this revision petition. Hence, present criminal revision petition is dismissed.
14.TCR be sent back along with copy of this order to the trial court.
File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALAPULASTYA Location: Court No.3, PRAMACHALA Karkardooma Courts, Delhi Date: 2017.12.05 12:48:16 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 05.12.2017 Special Judge (PC Act) CBI, East (This order contains 12 pages) Karkardooma Courts, Delhi Page 12 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi