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Delhi District Court

State vs . Neeraj on 24 December, 2011

                                                         State Vs. Neeraj

         IN THE COURT OF SHRI GURVINDER PAL SINGH 
         ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
                      SAKET COURTS, NEW DELHI



Session Case No. 24/11


ID No.: 02403R0135512008

State                  Vs.        :    Neeraj 
                                       S/o Sh. Raj Kapoor,
                                        R/o­ H. No. 196, Nai Mohalla, 
                                       Chattarpur Village, Mehrauli 
                                       New Delhi

FIR No. 763/07
P.S.  Mehrauli
U/s 302 IPC  

Date of Institution           :   26/01/2008

Date when arguments 
were heard                    :   14/12/2011

Date of Judgment              :   24/12/2011

JUDGMENT

State Vs. Neeraj BRIEF FACTS:

Factual matrix of the prosecution case is as follows:

At 7 am on 31/10/2007 at Police Station Mehrauli wireless information from lady Ct. Meenakshi (PW9) was received that at Chatterpur, Mother Dairy, behind Dena Bank a person is lying dead in pool of blood. SI Ram Yash Pandey (PW14) with Ct Shubhash and Ct Jagpal (PW7) went to place of occurrence, street opposite H. No. 192, Mohalla Chatterpur, found one person of age around 45 years lying in pool of blood whose feet was towards East and head was towards West. Face and head of that person were having several injuries. On account of injuries, the head of said person was disfigured, from his body blood was flowing on road. Nearby the dead body, a cricket bat smeared with blood was lying on which Grey NICOLLS was written. Dharam Raj (PW5) met SI Ram Yash Pandey (PW14) there and identified the deadbody to be of his paternal uncle (Foofa) Shubh Karan, son of Sh Bhagwat. SI Ram Yash Pandey (PW14) recorded statement Ex PW5/A of Dharamraj (PW5).

SC No. 24/2011 2/32

State Vs. Neeraj In statement Ex PW5/A, Dharamraj (PW5) stated that he was residing with his paternal uncle (Foofa) Shubh Karan and working along with him at Riwari Farm House, Maidan Garhi. On 31/10/07, at 6.30 am he had gone to fetch milk at Mother dairy, when he was returning after talking milk then he saw his said paternal uncle (Foofa) Shubh Karan lying in pool of blood on the street opposite H. No. 192, Mohalla Chatterpur and near him a cricket bat having on it blood there, crowd collected, public saying boy namely Neeraj after assaulting with bat had ran away. On enquiry of Dharamraj (PW5), Deepak and Ravi Kant told that Neeraj named boy of Chatterpur Village forcibly snatched bat from the hand of Ravi Kant (PW6) and hit it on head of Shubh Karan because Ravi had refused to give the bat to Neeraj and Neeraj was snatching bat forcibly from him and then Shubh Karan stopped Neeraj and in anger Neeraj hit Shubh Karan with bat. When Shubh Karan fell on the ground then also Neeraj gave several bat blows to Shubh Karan. Dharam Raj (PW5) immediately ran to his home and told there of Neeraj having assaulted his paternal uncle (Foofa) Shubh Ram with bat and killed him. SI Ram Yash Pandey (PW14) scribed tehrir Ex PW14/B, gave it SC No. 24/2011 3/32 State Vs. Neeraj to Ct Jagpal (PW7) for getting FIR registered at police station and called Crime Team, Dog Squad and photographer at spot, also mentioned that investigation may be entrusted to Addl. SHO Jai Singh (PW17 ) as per instruction of SHO. Case was registered in FIR No. 763/07 for offence under Section 302 IPC. Matter was investigated. Site plan was prepared. Crime Team, photographer, Dog Squad came at the spot. Photographs of the spot were taken. Blood earth control and other exhibits were lifted from the spot, sealed in a parcel. Weapon of offence i.e cricket bat was also seized in a separate parcel. Body of the deceased was sent for postmortem and postmortem was got conducted after which body was given to the relatives of deceased. Weapon of offence , cricket bat was provided in a sealed parcel to the Autopsy surgeon whose further opinion was obtained. Autopsy surgeon opined the cause of death as 'shock due to injuries described, caused by hard and blunt force. The injury no. 1 is sufficient enough to cause death in ordinary course of nature. All injuries were antemortem in nature and fresh in duration. The injuries could be produced by a submitted weapon of offence i.e cricket bat'. Also Autopsy surgeon opined that the injuries SC No. 24/2011 4/32 State Vs. Neeraj mentioned in the postmortem report could be produced by the submitted cricket bat, said weapon of offence. IO was adviced to get analysis of stains over bat from CFSL, bat was packed, sealed, handed over to IO with sample seal; expert opinion from FSL was obtained. Blood of B Group was detected on blood stained road chips of the road, cricket bat, T shirt and vest of deceased. On conclusion of investigation, charge­sheet was filed in the court.

2. After the completion of the requirements under Section 207 Cr.P.C., case was committed to the court of Sessions. CHARGE

3. Vide order dated 28.04.09, charge for offence under Section 302 IPC was framed against accused by my Ld. Predecessor to which he pleaded not guilty and claimed trial. WITNESSES:

4. To connect the accused with the offences charged, the prosecution has examined in all 20 witnesses namely Dr. Sudipta SC No. 24/2011 5/32 State Vs. Neeraj Ranjan Singh (PW1); HC Manohar Lal (PW2); Sh Deepak (PW3); SI Mahesh Kumar (PW4); Sh Dharamraj (PW5); Sh Ravi Kant (PW6); HC Jagpal (PW7); HC Shubhash Chand (PW8); WCt. Meenakshi (PW9); HC Hari Kishan (PW10); HC Rameshwar (PW11); Ct Anand (PW12); Sh Keshav (PW13); Rtd SI Ram Yash Pandey (PW14); Ct Jai Prakash (PW15); SI Liyakat Ali (PW16); Inspector Jai Singh (PW17); Sh Vishal (PW18); Inspector Manmohan Singh (PW19) and HC Madan Mohan (PW20).

STATEMENT OF ACCUSED:

5. Thereafter accused was examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication. Accused denied to lead defence evidence.

ARGUMENTS

6. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth. SC No. 24/2011 6/32

State Vs. Neeraj

7. Ld. Addl. PP for the State argued that though the cited material eye witnesses Deepak (PW3) and Ravi Kant (PW6) have resiled, not supported the case of prosecution but yet Dharamraj (PW5) has given the ocular version of commission of crime of murder by accused Neeraj; presence of Dharamraj (PW5) has been admitted by SI Ram Yash Pandey (PW14) (now Retired) who reached at the scene of crime. Also has been argued that Dharamraj (PW5) was an illiterate witness and in his statement Ex. PW5/A, the version of occurrence was not properly recorded, his statement was twisted and after a month he had got typed complaint Ex. PW5/C and had delivered it to the DCP narrating the eye witness account of the offence. Record of Ex. PW5/C had been destroyed as per version of HC Manmohan (PW20). Also was argued by Ld. Addl. PP for the State that the blood stained T­shirt of accused worn at the time of occurrence was seized pursuant to to arrest of accused after few hours in the area where crime was committed. Though the forensic expert could not determine the blood group of the blood on the T­shirt of accused but since the T­shirt of accused was SC No. 24/2011 7/32 State Vs. Neeraj seized after short span of time of murder, it was incriminating circumstance against him for which he has not rendered any explanation and despite non determination of the blood group of the same, it also forms a piece of evidence against the accused in the light of (1) State of Rajasthan Vs. Teja Ram, AIR 1999 SC 1776; (2) Gura Singh Vs. State of Rajasthan, AIR 2001 SC 330; (3) Keshav Lal Vs. State of M.P., AIR 2002 SC 1221 and (4) Molai Vs. State of M.P., AIR 2000 SC 177.

8. Ld. Defence counsel argued that in terms of the presented case of prosecution Deepak (PW3) had arrived at the scene of crime after the death of Shubhkaran (deceased) and cited material eye witnesses Deepak (PW3) and Ravi Kant (PW6) as well as the other witness Vishal (PW18) have resiled, did not support the case of prosecution, have not uttered a word incriminating the accused with the charged offence. It was also argued that Dharamraj (PW5) was nephew of deceased and has been later on introduced as eye witness who gave coloured, exaggerated version concocting facts against accused and such witness is unreliable and can not be made basis for SC No. 24/2011 8/32 State Vs. Neeraj conviction of the accused. The initial statement Ex. PW5/A, of Dharamraj (PW5) only incorporated the hearsay version of commission of crime by accused and is inadmissible in evidence being hit by Section 60 of Evidence Act. The prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Ld. Counsel for accused has prayed for acquittal of the accused.

OFFICIAL WITNESSES

9. HC Manohar Lal (PW2) is the Duty Officer who has proved the copy of his scribed FIR No. 763/07 under Section 302 IPC as Ex. PW2/A.

10. SI Mahesh Kumar (PW4) is the Draughtsman who visited the scene of crime on 14.11.07 with Inspector Jai Singh (PW17) and has proved his scribed scaled site plan as Ex. PW4/A.

11. HC Jagpal (PW7) had accompanied SI Ram Yash Pandey (now Retired) (PW14) to scene of crime, later brought tehrir, is also SC No. 24/2011 9/32 State Vs. Neeraj the witness of seizure of cricket bat Ex. P1, weapon of offence and also the witness of arrest of accused later and seizure of the shirt of accused Neeraj.

12. HC Shubhash Chand (PW8) testified of being motorcycle rider having taken copies of FIR from Duty Officer and delivered them in the offices of DCP, Joint CP and Ld. Metropolitan Magistrate.

13. WCt. Meenakshi (PW9) while working in PHQ CPCR on 31.10.07 received information from Keshav (PW13) of a dead body lying near Mother Dairy Booth in Chattarpur Village, recorded the information in the Form 1, copy Ex. PW9/A and gave information to PS Mehrauli and to others.

14. HC Hari Kishan (PW10) was on duty on PCR Van and after receipt of call at 6.45am on 31/10/2007 had reached at spot, found body lying in a pool of blood and a cricket bat there, gave information to Senior officers and local police of PS Mehrauli who SC No. 24/2011 10/32 State Vs. Neeraj arrived there.

15. HC Rameshwar (PW11) is the Malkhana Moharrar with whom on 31.10.07, SI Ram Yash Pandey (now retired) (PW14) deposited four sealed parcels with seal of JS. On 01.11.07, Inspector Jai Singh (PW7) deposited three sealed parcels with sample seal. Later on 29.11.07, PW11 sent parcels to FSL through Ct. Jai Prakash (PW15). Entries recorded in register no. 19 by PW11 are Exts PW11/A, PW11/B, PW11/C and PW11/D.

16. Ct. Anand (PW12) was the photographer in crime team under SI Praveen, Incharge and had taken photographs of scene of crime, whose positives he has proved as Ex. PW12/A1 to A14 and negatives as Ex. PW12/B1 to B14.

17. SI Ram Yash Pandey (now retired) (PW14) on receiving copy of DD No. 42 with Ct. Jagpal (PW7) and Ct. Shubhash had reached at the scene of crime and is the initial investigating officer. SC No. 24/2011 11/32

State Vs. Neeraj

18. Ct. Jai Prakash (PW15) took the sealed pullandas with sample seal from MHC(M) on 29.11.07 to FSL Rohini, deposited them there. Copy of receipt of the same is Ex. PW15/A which PW15 deposited in the Malkhana on return.

19. SI Liyakat Ali (PW16) had recorded DD No. 42A at 7.00am on 31.10.07 regarding a person lying dead at Chattarpur Village near Mother Dairy Booth, whose copy he has proved as Ex. PW16/A.

20. Inspector Jai Singh (now retired) (PW17) was entrusted with the investigation of this case after registration of the case.

21. Inspector Manmohan Singh (PW19) is the last investigating officer. He filed FSL results Exts PW17/G, PW17/H and PW17/J vide application Ex PW17/F.

22. HC Madan Mohan (PW20) brought copy of order Mark PW20/A dated 22.06.11 of ACP, Head Quarter with the mention of SC No. 24/2011 12/32 State Vs. Neeraj destruction of record pertaining to complaints received in the office of DCP, South District in year 2007.

MEDICAL EVIDENCE:

23. Dr. Sudipta Ranjan Singh (PW1) of AIIMS testified of having seen Dr. B.L Choudhary writing and signing during course of his duties and said Dr. B.L Choudhary had left the hospital. PW1 testified that postmortem report Ex PW1/A was in the writing of Dr. B.L Choudhry. The injuries on body of deceased described therein were:

'(1) The face is distorted and a depressed area of size 15X9 cm was present over involving area of face on the right and upper half portion of right side of the neck, this area is showing contusions and multiple abrasions of ranging size from 0.2X0.2 cm to 2X1 cm with haematoma underlying depressed area and also multiple fractures of right maxilla and right mandible with haematoma and fractures of nasal bones and also show multiple fractures of left maxilla and mandible with the loosening of teeth in upper and lower jaws. The haematoma in underlying surface also SC No. 24/2011 13/32 State Vs. Neeraj extending in upper half portion of right side of neck. A lacerated wound of size 4.5X2 cm X bone deep is present on the right side of face near upper portion of nose and just below the eye obliquely placed in continuation of depressed area. A lacerated wound of size 3X2 cm X cavity deep also present over lateral portion of upper lip.

(2) Abrasion of size 2X1 cm is present over lateral 1/3 of right clavicle reddish in colour.' As per report Ex PW1/A, the cause of death of deceased Shubh Karan was shock due to injuries described above caused by hard and blunt force. The injury no. 1 was sufficient enough to cause death in ordinary course of nature and all injuries were antemortem in nature and fresh in duration. The injuries could be produced by a submitted weapon of offence i.e cricket bat. The opinion about the weapon, cricket bat was separately given by Dr. B.L Choudhary as Ex PW1/B that, 'the injuries mentioned in postmortem report could be produced by above said weapon of offence (cricket bat). However IO is adviced to get analysis of stains over bat from CFSL. Bat is packet and duly sealed and handed over to IO alongwith sample seal.' SC No. 24/2011 14/32 State Vs. Neeraj MATERIAL WITNESSES:

24. Deepak (PW3), boy of age about 16 years, was the cited eye witness, who resiled from his previous statement on his entering into the witness box. Deepak (PW3) testified that on 30/10/2007 they were going to play cricket and he had gone to house of Ravi Kant, who came out with the bat and they reached the house of Vishal, where after sometime accused Neeraj came, asked bat from Ravi Kant but Ravi Kant refused to give bat. PW3 testified that accused Neeraj warned Ravi Kant if he was giving the bat or not but still Ravi Kant refused and then accused Neeraj snatched the bat, thereafter accused Neeraj threatened them with bat, thereafter Deepak (PW3) ran towards his home. As per Deepak (PW3), after sometime police arrived. Deepak (PW3) deposed that accused Neeraj did not give any bat blow to anybody. Despite being cross examined at length by Ld. Addl. PP for the State, PW3 did not support the case of prosecution in any manner, whatsoever.

25. Ravi Kant, (PW6), student of age 17 years also resiled SC No. 24/2011 15/32 State Vs. Neeraj from his previous statement on entering the witness box. PW6 testified that he was student of class 9th at the time of occurrence and on 31/10/2007 at 6.30 am, he came out of his house for playing, saw gathering of public persons in the street, became afraid and came back to his house; thereafter 30/40 police officials came to his house and he was taken to police post where he remained till 3 pm, was made to sign the papers, then he came back home. PW6 stated that he had come to know that somebody had died but neither he was knowing who nor how he died nor who caused his death. Despite cross examination at length by Ld. Addl. PP for the State, Ravi Kant (PW6) has not supported the case of prosecution in any manner whatsoever. Ravi Kant (PW6) denied of having seen accused Neeraj having hit the deceased Shubh Karan with bat. Ravi Kant (PW6) stated that accused Neeraj was resident of his locality. Also Ravi Kant (PW6) stated that the incident did not take place in his presence. Ravi Kant (PW6) stated that he had come to know later on that accused Neeraj had caused injuries to that person but said version is hearsay; inadmissible in evidence being hit by Section 60 of Indian Evidence Act.

SC No. 24/2011 16/32

State Vs. Neeraj

26. Keshav (PW13) testified of having seen dead body near mother dairy about three years prior to his date of deposition i.e, 18/2/2011; when he was coming back from morning walk at around 7 am Keshav (PW13) saw the dead body near mother dairy with head injury in the pool of blood, many people were standing there and he made call to number 100 from his mobile no. 9313581199 and PCR van reached there after sometime.

27. Vishal (PW18), student, of age 18 years also resiled from his previous statement when he entered the witness box saying he had not seen any occurrence taking place. Vishal (PW18) deposed that on 31/10/2007 he remained at his house and when he woke up in between 7 am to 8 am, he went outside the house, saw crowd collected there, 10 meters away from door of his house, a dead body of male person was lying. Also, Vishal (PW18) stated that on that day Deepak and Ravi had come to call him to play cricket and he had met them at his door and then they came inside his house. Vishal (PW18) asked them to wait outside saying he will be coming after SC No. 24/2011 17/32 State Vs. Neeraj sometime as he had to refresh and wear clothes. It took half an hour for him to be ready to go out while in the meantime, Ravi and Deepak waited outside his house. When Vishal (PW18) came out of his house, he saw the crowd where Ravi and Deepak were also there. Vishal (PW18) stated that he had seen dead body from the distance of 10 feet and had not gone near it and blood was over the face of body. Despite cross examination of Vishal (PW18) at length by Ld. Addl. PP for the State, he had not supported the case of prosecution in any manner and was confronted and contradicted with his previous statement Mark PX1. Vishal (PW8) denied of having been told by Deepak or Ravi of accused Neeraj having killed a person with a cricket bat.

28. The case of prosecution primarily hinges upon the testimony of Dharamraj (PW5). Dharamraj (PW5) when testified on 27/07/2010 before my Ld. Predecessor, then stated his age to be 20 years, to be nephew of deceased Shubh Karan stating Shubh Karan was his Fufa. Dharamraj (PW5) stated that earlier he was living at Chatterpur with his Fufa Shubh Karan and he was working as gardner SC No. 24/2011 18/32 State Vs. Neeraj in Riwari Farm House, Maidan Garhi. As per Dharamraj (PW5) on 31/10/2007 at 6.30 am he was going to take milk from mother dairy in the street and at a little distance away from mother dairy booth, he saw one person was beating his Fufa Shubh Karan by a bat, then Dharamraj (PW5) shouted and said person ran away leaving bat the spot. Dharamraj (PW5) stated that he came near his Fufa, his Fufa was in very bad condition and was bleeding from head and face. Dharamraj (PW5) further stated some more persons collected there, one of the person from that crowd informed that the person who had ran away causing injuries was named as Neeraj. Dharamraj (PW5) stated that he immediately went to inform his bua (wife of deceased Shubh Karan) and they both came to the spot. Further Dharamraj (PW5) stated that somebody called the police and police came to the spot and Dharamraj (PW5) narrated the incident to police. Dharamraj (PW5) stated that he gave statement Ex PW5/A to police. Also, Dharamraj (PW5) stated that accused Neeraj was the same person whom he had seen causing injuries by a bat to his Fufa Shubh Karan; later on his Fufa succumbed to the injuries. As per Dharamraj (PW5), bat Ex P1 was seized by police vide memo Ex PW5/B. SC No. 24/2011 19/32 State Vs. Neeraj

29. Adverting to Ex PW5/A, statement of Dharamraj (PW5) given to SI R.Y Pandey (PW14) on 31/10/2007, it finds mention of the fact that Dharamraj (PW5) when after fetching milk from mother dairy had returned at 6.30 am on 31/10/2007 he had seen deceased Shubh Karan, his uncle, lying in pool of blood on road outside house no. 192 and nearby him was lying a cricket bat having blood on it and crowd collected there and it was public who was saying, "Neeraj Naam Ka Ladka Bat Maar Kar Ke Bhaag Gaya". Also, is mentioned in Ex PW5/A that two boys namely Deepak and Ravi Kant had told that Neeraj named boy of Chatterpur Village had forcibly snatched bat from the hand of Ravi Kant and hit on the head because Ravi Kant had refused to give bat which Neeraj was forcibly snatching and Shubh Karan (now deceased) had stopped Neeraj and upon that accused Neeraj came in anger and hit Shubh Karan (now deceased) with the bat and after Shubh Karan (now deceased) fell on the ground then accused Neeraj gave him several bat blows. In terms of Ex PW5/A Dharamraj (PW5) was not the eye witness of the alleged occurrence of accused Neeraj giving bat blow on the head and body portion of Shubh Karan (now deceased) but on his arrival at the SC No. 24/2011 20/32 State Vs. Neeraj scene of crime had seen Shubh Karan (now deceased) lying in pool of blood.

30. In the course of his cross examination, Dharamraj (PW5) elicited that he had stated to the police after the incident of having seen a person beating his uncle Shubh Karan (now deceased) by a bat. On being confronted with statement Ex PW5/A, Dharamraj (PW5) stated that infact he had given a written complaint later on to the police stating those facts. In the course of his cross examination before my Ld. Predecessor on 28/7/2010, Dharamraj (PW5) put forth his complaint, dated 29/11/2007 purportedly received on 30/11/2007, Ex PW5/C which on top of it bears the stamp of Deputy Commissioner of Police, South District, New Delhi and some initials with over written date of 30th/11 and some illegible text. Dharamraj (PW5) stated that he was not a literate person, can only sign in Hindi, can read his name; he got the complaint Ex PW5/C typed from a typist in Mehrauli. Dharamraj (PW5) stated that he gave the complaint Ex PW5/C after about one month of the incident when he came to know that correct version was not recorded. No where SC No. 24/2011 21/32 State Vs. Neeraj Dharamraj (PW5) in the course of his entire testimony has specified of his source of knowledge as to from where he came to know that his correct version was not recorded in his earlier statement by the police. Dharamraj (PW5) denied of having fabricated complaint Ex PW5/C or being not an eye witness or under legal advice had so fabricated Ex PW5/C to claim as an eye witness. Dharamraj (PW5) was unable to tell the name of the person who told him the name of accused Neeraj. Dharamraj (PW5) also admitted that he had not got the deceased (Shubh Karan) admitted in hospital. Also, Dharamraj (PW5) admitted that he had not called the police. Even Dharamraj (PW5) did not do any act to either save his uncle, the deceased at spot from assailant or to apprehend the assailant himself or with the aid of other person(s).

31. Ex PW5/C finds mention of Dharamraj (PW5) having come to know that what he stated to police was not mentioned in the FIR after he received the FIR and police officials had written his statement on their own which was wrong and what was being mentioned in Ex PW5/C was correct. Dharamraj (PW5) did not testify SC No. 24/2011 22/32 State Vs. Neeraj as to when he got the copy of FIR or when or as on which date he gained the knowledge that his statement given to police was not recorded correctly by the police. It has not been made vivid and clear in the evidence by the prosecution as to what was the fate of Ex PW5/C, the complaint of Dharamraj (PW5), to the DCP, South District, Hauz Khas, New Delhi. Ex PW5/C was brought on record by Dharamraj (PW5) on 28/07/2010. On 03/10/2011 application under Section 311 Cr.P.C was moved by Ld. Addl. PP for the State with the prayer of summoning duty officer deputed on 30/11/07 at police station Mehrauli with DD register of that day for proving the factum of receipt of complaint Ex PW5/C. On 02/11/2011, amended application under Section 311 Cr.P.C was moved by Ld. Addl. PP for the State for summoning the Head Assistant, Complaint Branch and General Diarist posted in the office of DCP, South District with record/details of complaint Ex PW5/C filed by Dharamraj (PW5) on 30/11/2007 in the office of DCP, South District. Said application dated 02/11/2011 of Ld. Addl. PP for the State was allowed on 02/11/2011.

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State Vs. Neeraj

32. As per HC Madan Mohan (PW20), the records of complaint received in the office of DCP, South District of year 2007 were destroyed vide order Mark PW20/A, dated 22/6/2011 of ACP Head Quarter for DCP, South District. After 28/7/2010 and before 3/10/2011, no steps had been taken on behalf of the prosecution for seeking summoning of records of complaints received in the office of DCP, South District pertaining to the receipt of Ex PW5/C, if at all the same was so delivered there. Ld. Defence Counsel on 28/07/2010, itself had suggested in course of cross examination to Dharamraj (PW5) of having fabricated Ex PW5/C to claim himself as an eye witness. For non taking of the steps for summoning the record of receipt of complaint Ex PW5/C from the office of DCP, South District, on behalf of the prosecution, accordingly, prejudice has been caused to the accused.

33. Be that as it may, even if Ex PW5/C is taken on its face value and considered to have been lodged in the office of DCP, South District yet nothing has been brought on record as to what was the fate of Ex PW5/C and what action was taken by the DCP concerned SC No. 24/2011 24/32 State Vs. Neeraj or whether the matter was enquired at all for lapses/latches on part of SI R.Y Pandey (PW14) if any unearthed pursuant to filing of Ex PW5/C and consequent enquiry, if any. Yet, Ex PW5/C embodies fact of the mention of Dharamraj (PW5) having seen his uncle Shubh Karan (now deceased) lying on ground in pool of blood at the scene of crime and a boy continuing hitting him with cricket bat and deceased shouting 'Bachao­Bachao' and even Dharamraj (PW5) himself shouted, upon which said boy left the bat and ran away. PW5 did not testify of having heard shouts of 'Bachao­Bachao' of deceased. Also, is the mention in Ex PW5/C there that the children who collected there had told the name of assaulting boy as Neeraj, resident of Chatterpur. Dharamraj (PW5) has claimed of having gone to the house, told his paternal aunt (Bua) who accompanied him to the scene of crime. The said paternal aunt (Bua) of Dharamraj (PW5) viz, the wife of deceased has neither been examined in the course of investigation nor has been cited or examined as a prosecution witness. There is no material on record to corroborate the version of Dharamraj (PW5) of having told his paternal aunt (Bua), the wife of deceased (Shubh Karan) of the fact of Dharamraj (PW5) being the eye witness SC No. 24/2011 25/32 State Vs. Neeraj of occurrence. Ex PW5/C does not find any mention of description of accused Neeraj regarding his age, height, weight or complexion or his wearing apparel, specifically worn shirt (or T shirt). When SI R.Y Pandey (PW14) was examined before my Ld. Predecessor on 24/2/2011, he candidly admitted in the course of his cross examination of the fact that Dharamraj (PW5) had not witnessed the incident and had reached at the spot later on. Nothing was suggested to SI R.Y Pandey (PW14) on behalf of the prosecution as to he incorrectly recorded the version of Dharamraj (PW5) in Ex PW5/A or infact Dharamraj (PW5) had been eye witness of the occurrence.

34. It has been argued on behalf of the prosecution that on arrest at 7 pm (time as per arrest memo Ex PW7/B) on 31/10/2007 accused was wearing green coloured T shirt having white stripes and marks of blood which was seized vide memo Ex PW7/E. Investigating officer Inspector Jai Singh (PW17), scribe of document Ex PW7/E, SI R.Y Pandey (PW14) and Ct Jagpal (PW7), the attesting witnesses of Ex PW7/E were not shown any such T shirt of green colour on their entering into the witness box and none amongst PWs SC No. 24/2011 26/32 State Vs. Neeraj 7,14 and 17 did identify before my Ld. Predecessor in their evidence of any such T shirt of green colour of accused. The forensic reports Exts PW17/H and PW17/J make it clear that the forensic expert could not opine about the blood group of blood on alleged T shirt of accused and could only opine it to be of human 'origin'.

35. In the case of Teja Ram (Supra), when the weapon of offence, axes were recovered on basis of statement of accused, human blood was found on one axe.

36. In the case of Gura Singh (Supra), the chemical examiner had found that with lapse of time classification of blood could not be determined.

37. In the case of Keshav Lal (Supra), there were no contradictions, omissions and improvements noted in deposition of eye witness who was found to be trustworthy witness.

38. In the case of Molai (Supra), in case of gang rape of 16 SC No. 24/2011 27/32 State Vs. Neeraj year old girl by two accused after which she was strangulated, nail injuries were there on the person of one accused showing resistance of the victim.

39. Aforesaid relied precedents embody entirely different set of facts and circumstances as to present facts and circumstances in this matter. So relied precedents are of no help to the prosecution. More so, when prosecution itself has not produced the alleged seized T shirt of the accused in the evidence on which human blood is stated to be detected and it has not been proved that any such T shirt was belonging to the accused. There is also no material on record depicting the age of the blood spots on such T shirt; as to what were the dimensions of the blood there or whether those blood spots were the marks which could be still existing after washing of the cloth.

40. Fact remains, that after resiling of Deepak (PW3) in the evidence, denying to be the eye witness, not supporting the case of prosecution, saying having not seen the accused committing the crime of murder of Shubh Karan (now deceased); it was then when SC No. 24/2011 28/32 State Vs. Neeraj Dharamraj (PW5) later entered into the witness box, stated him to be the eye witness of the occurrence on 27/7/2010 before my Ld. Predecessor and next day i.e on 28/7/2010 when he was cross examined by the Ld. Defence Counsel, then he brought on record, aforesaid Ex PW5/C. Accordingly, there is an absolute shift in the version of Dharamraj (PW5) from one embodied in Ex PW5/A of having arrived at the scene of crime after commission of the offence and the offender having run away; to being an eye witness as narrated as PW5 and in terms thereof as mentioned in Ex PW5/C, the complaint addressed to the DCP, South District, after a month of occurrence. There is every likelihood/reasonable possibility of introduction of coloured version, exaggeration of facts, after deliberations and consultations, with concoction by Dharamraj (PW5) to introduce himself an an eye witness of occurrence in the present gamut of facts and circumstances. Being nephew of deceased, residing with deceased and working also with the deceased, there was additional possibility of it being impressed upon by other relatives of deceased upon Dharamraj (PW5) to himself become an eye witness with the reason and belief to secure conviction of the accused, SC No. 24/2011 29/32 State Vs. Neeraj the prime suspect. Suspicion howsoever grave, it may be cannot take place of proof.

41. In the case of Anil Phukan vs State of Assam, AIR 1993 SC 1462, the sole eye witness, close relative of deceased did not attempt to save deceased, though claimed to be present at the place of occurrence, was not believed upon to base conviction of the accused.

42. In the case of Supramanian vs State of Kerala, 1996 SCC (Cri) 176, it was held that when the testimony of the claimed eye witness suffers from important omissions and material discrepancies and such eye witness had not come forward to give eye witness account for long time after commission of offence, it was held that his testimony was unacceptable and it was highly unsafe to rely on such sole testimony to base conviction of the accused.

43. In the case of Rahisa vs State of NCT of Delhi, Criminal Appeal No. 90/2011, decided on 31/3/2011 by Hon'ble Mr. Justice Ravinder Bhatt, the version of the witness who claimed SC No. 24/2011 30/32 State Vs. Neeraj of having last seen the deceased in the company of accused, was found unbelievable, untrustworthy inter alia for delay of reporting such facts for a day of having seen quarrel between the appellant accused and the deceased not disclosing those facts at the first available opportunity and the conviction of the accused was held to be erroneous.

44. By entire evidence and material on record, the prosecution has not been able to prove by cogent evidence that accused had any motive to kill the deceased.

Announced in the open court                (GURVINDER PAL SINGH)
on dated  24/12/2011                          ASJ (FTC)/SD/ NEW DELHI.




SC No. 24/2011                                                             32/32