Delhi District Court
State vs . Gurjinder @ Barjinder Singh & Anr. on 27 August, 2012
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 111/09)
Unique ID case No. 02404R0245342009
State Vs. Gurjinder @ Barjinder Singh & Anr.
FIR No. : 156/09
U/s : 302/201/34 IPC
P.S. : Mukherjee Nagar
State Vs. 1. Gurjinder @ Barjinder Singh
S/o Balbir Singh
R/o C22, NPL,
Delhi.
2. Birju Dass
S/o Jageshwar Dass
R/o E399, MCD Colony,
Azadpur, Delhi.
Date of institution of case 10.11.2009
Date on which, judgment has been reserved04.08.2012
Date of pronouncement of judgment 27.08.2012
JUDGMENT:
1. The case of the prosecution as briefly stated in the charge sheet is that on 22.05.2009 on receipt of Ex. PW25/A, DD no. 18 B, ASI Madan Lal reached at S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 1/ 44 2 Hindu Rao Hospital, where he found injured Harminder Singh admitted vide MLC Ex. PW9/A and collected said MLC, on which doctor declared the injured 'unfit for statement'. As there was no eye witness, DD no. 18 B was kept pending. On 28.05.2009, the injured passed away and information regarding the death of injured was sent to Police Station Mukherjee Nagar, where it was reduced to writing videEx. PW24/A i.e. DD no. 11 A. After the death of the deceased, the case FIR in the present case was registered u/s 304 IPC on DD no. 11A dated 28.05.2009 itself as there was still no eye witness. The investigations of the case were handed over to SI Pardeep Kumar. On 30.05.2009, postmortem examination was got conducted on the dead body of the deceased, after which the same was handed over to his relatives PW1 Ajmer Singh and PW2 Harjeet Singh. During the course of investigations, IO recorded statement of witnesses Surender son of Maha Singh, Ashok son of Makkhu Prasad, Naseem Khan son of Yasin Khan u/s 161 Cr.P.C., wherein the said witnesses stated that the deceased had told them that he had been injured on 13.05.2009 by accused Barjinder @ Gurjinder son of Balbir Singh and Birju Dass Chhole wala at Quarter no. C22, NPL, Delhi110009. On 15.06.2009, accused Birju Das was arrested in the case and during the course of interrogation, he made disclosure statement, wherein he confessed about having given beatings to deceased Harminder along with Gurjinder @ Barjinder on 13.05.2009 at Quarter no. C22, NPL, with belt as deceased was not returning Rs. 2,500/ taken by him from Birju Dass and while so beating the deceased, accused Gurjinder brought a mathani and forced it in the anus of injured, while Birju caught hold of him. They both left S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 2/ 44 3 the injured in this condition, thereafter. On 16.06.2009, IO obtained the postmortem report Ex. PW6/A of the deceased, wherein the concerned doctor also opined the cause of death as septicmic shock consequent to perforation of rectum due to forceful introduction of a hard and blunt object into the rectum through anus, which is sufficient to cause death in ordinary course of nature. After obtaining the postmortem report, Section 302 IPC was added. On 19.6.2009, accused Gurjinder @ Barjinder was arrested in this case and his disclosure statement was also recorded. Accused Gurjinder @ Barjinder got recovered one belt and a mathani, which had been used to inflict injuries to the deceased, from quarter no. C22, NPL, Delhi110009. The further investigation of the case was thereafter, transferred to Ins. Krishan Lal. During the subsequent investigation, exhibits in the case were sent to FSL and site plan was also prepared. After completing the investigation, the charge sheet was prepared and filed in the Court.
2. Upon committal of this case to the court of Sessions, charges for the offence under Sections 302/34 IPC were framed against the accused Gurjinder @ Barjinder Singh and Birju Dass. However, both the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, prosecution has examined 26 witnesses in all. Public witnesses :
The witnesses who had lastly seen deceased in company of accused persons and witnesses to the dying declaration :
S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 3/ 44 4
4. The witnesses who had lastly seen deceased in company of accused persons and witnesses to the dying declaration are PW8 Naseem Khan, PW13 ASI Surender Singh, PW7 Ashok Kumar, PW12 HC Muni Ram, PW19 HC Dharam Singh and PW18 Ct. Krishan Kumar.
5. PW7 Ashok Kumar has been put forth as a witness to one of the dying declarations made by injured Harminder Singh prior to his death. This witness deposed that Ct. Harminder (deceased) was residing in barrack of PS Civil Lines and was under suspension and was his regular customer and that PW7 used to visit him in the barrack for supplying the juice. On 15.5.2009, when PW7 went to barrack, he found Harminder lying on a cot with multiple injuries on his body. On asking by PW7, Harminder told him that one person who was resident of village situated near his native village and also belonged to the same department (police department) caused injuries on his body and that thereafter, PW7 returned back to his rehri. The PW7 further deposed that injured was admitted to Hindu Rao Hospital by other police officials from the barrack and died on 28.05.2009 and that statement of PW7 was recorded by the police on 2.6.2009.
This witness was declared hostile by Ld. Addl. PP and during his cross examination, he was put that part of his statement under Section 161 Cr.P.C, mark X, wherein he had stated that Harminder had told him that Gurjinder and Birju (Chhole Wala) had taken him to C22, NPL and beaten him and had also inserted a mathani (dahi bilone wala danda) in his anus and had also stated that Gurjinder and S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 4/ 44 5 Birju Chhole wala used to visit Harminder in barrack. However, PW7 denied having stated so in his statement made to the police. During his crossexamination by learned counsel for the accused Gurjinder @ Bijender, PW7 stated that his statement was recorded by the police on 02.06.2009 and that he had also signed the said statement.
6. PW8 Naseem Khan has been put forth as a last seen witness, who had seen injured Harminder Singh in company of the accused persons prior to his being discovered in an injured condition. This witness deposed that he is a Barber by profession and used to cut hair in front of Police Station Civil Lines and that deceased Harminder, who was under suspension, was known to him and used to visit PW8's stall to take food there. He further deposed that on 13.5.2009, at about 1.30 pm, he was going to bring pulses (dal) from a hotel and Harminder (deceased) was with him at that time. On the way, someone called Harminder and he went towards that person, while telling PW8 that he would come back within 15/20 minutes, but he did not turn up again on that day. Harminder came back after about 3 days and at that time, he was having multiple injuries on his person and was got admitted in Hindu Rao Hospital and on the day, he was being taken to hospital, PW8 asked him what had happened and deceased told him that an altercation had taken place with some one and he sustained injuries on his person. After about seven days, Harminder died. PW8 deposed that deceased Harminder had not disclosed the names of assailants to him and that he could not identify the S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 5/ 44 6 persons, who had called Harminder on 13.5.2009, when he was accompanying PW8 to hotel.
This witness was also declared hostile by ld. Addl. PP and during his crossexamination, the PW8 gave a different version altogether. He termed it correct that Harminder had told him that he had sustained injuries in a quarrel with Birju Chhole wala and Gurjinder, who is suspended from police department and that on 13.05.2009, Birju Chhole Wala and Gurjinder had called Harminder, while he was accompanying PW8 to the hotel. He also termed it correct that Harminder told him that Birju Chhole Wala and Gurjinder took him to Govt. police quarter and gave him beatings there and that when Harminder returned back on 15.5.2009, he was not in a position even to move properly and was going to toilet (to pass stool) again and again. PW8 denied having stated to the police in his statement mark Y that till the time of his death, Harminder was scared of Birju Chhole Wala and Gurjinder and was not ready to make any complaint against them and was saying that they would kill him. On specific pointing out by ld. Addl. PP, the witness identified accused Birju Chhole Wala and Gurjinder as persons, who had called Harminder on 13.5.2009, when he was accompanying PW8 to Hotel.
During his crossexamination on behalf of accused Birju, PW8 stated that he was well acquainted with deceased Harminder and had gone to hospital to meet him and at that time, no person from the family of deceased was present and that he had met police officials namely Ins. Azad Singh, HC Muni Ram and other officials at that time and that he had not narrated to any of the police officials S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 6/ 44 7 present in the hospital that accused Birju Das had inflicted injuries on the deceased's person, due to which he was admitted in the hospital. It is also brought out from the crossexamination of PW8 that he did not go to PS to lodge a complaint, even when he came to know about death of Harminder. PW8 denied that he had not gone to PS or any other authority to register a case against the accused persons as he did not know the names of the assailants.
This witness was also crossexamined on behalf of accused Gurjinder @ Bijender. During his crossexamination, PW8 stated that he knew most of the police officials residing in the police barrack at the time of incident, however, he was not aware of the time, when they used to leave or come back to the barrack or their duty timings or nature thereof. He also stated that he was asked by the police officials to bring the medicines for Harminder and at that time, he came to know that Harminder had come back to the barrack after two days, but it was not in his presence.
7. PW12 HC Muni Ram and PW19 HC Dharam Singh are stated to have taken the deceased Harminder to Hindu Rao Hospital on 22.5.2009 and have been put forth as witness to dying declaration made by the deceased on the way to the hospital. PW12 HC Muni Ram deposed that in the year 2009, he was posted at Distt. Line North and deceased Harjinder @ Maruti, who was under suspension, was also living in the barracks there. He further deposed that on 22.5.2009, condition of Harjinder was very serious as he was having multiple injuries on his S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 7/ 44 8 person and was also bleeding from his anus and that PW12 along with HC Dharam Singh took injured to Hospital and on the way to Hospital, Harjinder (since deceased) told them that one Birju Chhole Wala and Gurjinder had given him beatings and insert mathani (dahi bilone wala danda) in his anus on 13.5.2009 and that deceased had also told them that father of Gurjinder was in Delhi Police and that Birju and Gurjinder had taken him to his quarter situated at Model Town as there was some dispute on the issue of money, which deceased had to return to them.
During his crossexamination by learned Amicus Curie for accused persons, PW12 termed it correct that deceased Harjinder Singh was conscious at the time, when his MLC was prepared. It is brought out from the cross examination of PW12 that he did not state to the doctor, who prepared the MLC that deceased Harjinder Singh had been given injuries by Birju Chhole Wala and Gurjinder and that the local police reached the hospital in presence of PW12 on that day, but he did not stated to the police as to who had inflicted injuries on the person of Harjinder Singh. PW12 also deposed that he had not met local police again in the hospital, when he visited the hospital on various occasions to find out about the condition of Harjinder Singh between 22.5.2009 to 28.5.2009. PW12 admitted that his statement was recorded for the first time by the IO on 26.08.2009 and that he had met police officials from PS Mukherjee Nagar between 22.5.2009 to 25.08.2009. He denied that he had made statement after S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 8/ 44 9 three months of the incident under pressure of the police.
8. PW19 HC Dharam Singh also deposed about his acquaintance with deceased Harminder @ Maruti, who was residing in the same barracks as PW19. He further deposed that on 15.5.2009, he had seen Harminder @ Maruti with multiple injuries on his body and that on 22.5.2009, his condition became worse and that PW19 along with Muni Ramdriver removed Harminder @ Maruti to Hindu Rao Hospital and that on the way, Harminder @ Maruti told them that one Bijender @ Birjender and Birju Chhole Wala had given beatings to him at NPL quarters with a belt and also inserted mathani (dahi bilone wali) in his anus on the issue of transaction of money and that after getting deceased Harminder @ Maruti admitted in the hospital, PW19 went to see him later on and that in the hospital, Harminder @ Maruti used to tell PW19 that Birju Chhole Wala and Gurjinder would kill him and so he wanted to leave hospital for his house and that on 28.5.2009, Harminder @ Maruti expired.
A leading question was put to the witness by ld. Addl. PP, wherein witness was reminded that he had told the police that while being removed to hospital, deceased Harminder @ Maruti told PW19 that he was taken to C22, on 13.5.2009, where he was beaten by the accused persons. However, PW19 denied having stated so to the police in his statement mark A. During his crossexamination by learned Amicus Curie for accused persons, PW19 admitted that he had not lodged any complaint regarding the S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 9/ 44 10 manner in which injuries were inflicted to deceased Harminder and that even after death of Harminder, he did not reveal about it to any one till the time, statement u/s 161 Cr.P.C was recorded by the IO.
9. PW13 ASI Surender has also been put forth as a witness to dying declaration made by deceased on 15.5.2009. He deposed that he was posted in Distt. Line North since 2002 and that Ct. Harminder @ Maruti was living in the barrack at second floor, PS Civil lines in the year 2009 and that both the accused persons used to visit him during his stay at barracks and that on 13.5.2009, both accused persons came to Harminder @ Maruti and took him somewhere. He further deposed that on 15.5.2009, Harminder @ Maruti came back to his barrack and at that time, he was having multiple injuries on his person and he was in a worse physical condition and that on asking by PW13, Harminder @ Maruti told him that Birju Chhole Wala and Gurjinder gave him beatings with belt and also insert mathani (dahi bilone wala danda) as he has to return some money to them. PW13 then deposed that he had suggested to Harminder to make a complaint against them, but he was very frightened and told PW13 that if he made any complaint against them, then they would kill him. PW13 stated that Harjinder did not tell as to where he was taken by Birju and Gurjinder on 13.5.2009.
This witness also deposed about joining investigations on 15.6.2009, S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 10/ 44 11 when accused Birju was identified by him and was arrested by the IO vide arrest memo Ex. PW13/A and personally searched vide memo Ex.PW13/B. PW13 had also joined the investigations with the IO on 19.06.2009, when accused Gurjinder @ Birjender was arrested and proved his signatures on his arrest memo Ex. PW13/C and personally search memo Ex. PW13/D. This witness was declared hostile by learned Addl. PP. During his cross examination, PW13 terms it correct that deceased Harminder used to consume liquor and that in his statement made to the police, PW13 had stated that on 13.5.2009, when accused Gurjinder came along with accused Birju, they both were drunk and that accused Gurjinder had asked Harminder for Rs. 2,500/, but Harminder was not having such amount at that time. He also termed it correct that he had stated in his statement to the IO that he had asked deceased Harminder not to accompany them as PW13 was suspicious of them, but Harminder did not pay any heed to his advice and that on 15.5.2009, Harminder told PW13 that Gurjinder and Birju had taken him to C22, NPL, where he was given beating by them and that due to beatings given by accused persons and due to fear, Harminder remained lying in NPL Park.
From the crossexamination of PW13 by learned Amicus Curie for the accused persons, it has been brought out that PW13 had visited hospital once or twice to find out about the health of injured Harminder @ maruti. He, however, did not meet any police official during his visits and also did not give any statement to the police from 15.5.09 to 01.06.2009 regarding the facts as to how the deceased S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 11/ 44 12 had received injuries and that his statement was recorded by the police for the first time on 2.6.2009. It is also brought out from the crossexamination of PW13 that both the accused were not known to him prior to this incident and that he had never met both the accused, nor knew them through a third persons and that the disclosure statements of both the accused was not recorded in his presence by the IOat the time of arrest of the accused.
10. PW18 Ct. Krishan Kumar was posted as Duty constable in Hindu Rao Hospital on 22.5.2009, when deceased Harminder Singh was admitted in the hospital. He deposed that at the time of his admission in hospital, Harminder Singh was having old injuries on his person and was complaining of bleeding from anus and that on asking by PW18, he told him that Ct. Birjender and one Birju (Chhole Wala) gave him beatings at the quarter of Ct. Birjender at NPL, Kingsway Camp and that he had given intimation regarding admission of Harminder to PS Mukherjee Nagar, which was reduced to writing vide DD no. 18 B and that thereafter, ASI Madan Lal came to hospital and collected MLC. He proved attested copy of the DD no. 18 B as Ex. PW18/B. During his crossexamination by learned Amicus Curie for accused, PW18 admitted that he had not narrated the names of the assailants, who assaulted deceased Harminder to ASI Madan Lal, when he reached Bara Hindu Rao Hospital.
S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 12/ 44 13 Other public witnesses
11. PW1 Ajmer Singh deposed that on 30.05.2009, he along with his neighbour/PW2 Harjeet Singh reached Hindu Rao Hospital, Delhi on hearing about the death of Harminder Singh and in the mortuary of Hindu Rao Hospital, he identified the dead body of Harminder Singh vide identification memo Ex. PW1/A and that after postmortem, the dead body was handed over to PW2 Harjeet Singh brother of the deceased vide receipt Ex. PW1/B.
12. PW2 Harjeet Singh deposed on the same lines as of PW1 and he also deposed that in the mortuary of Hindu Rao Hospital, he identified the dead body of his brother Haminder Singh vide identification memo Ex. PW2/A. Formal witnesses
13. PW3 HC (Retd.) Birender deposed that on 28.05.2009, he was working as duty officer at PS Mukherjee Nagar and on that day, on receipt of rukka from ASI Madan Lal, he got recorded the FIR No.156/09 of this case u/s 304 IPC on computer and he has proved the computer generated copy of the FIR as Ex. PW3/A and endorsement made by him on rukka as is Ex.PW3/B. He further deposed that after recording the FIR, he handed over the original rukka and copy of FIR to SI Pradeep Kumar for further investigations.
14. PW25 W/HC Asha had recorded DD no. 18 B dated 22.5.09 regarding S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 13/ 44 14 admission of one Harjinder Singh s/o Balwan Singh, aged about 45 years in Hindu Rao Hospital by HC Munni Ram no. 1726 and deposed regarding the same. She proved the attested copy of DD no. 18B as Ex. PW25/A.
15. PW15 HC Raj Kumar, who was posted as duty constable at Hindu Rao Hospital deposed that he was informed at about 7.30 am on 28.5.2009 by a ward boy that one patient namely Harvinder Singh, who was admitted on 22.5.09, had expired and he conveyed the message to PS Mukherjee Nagar through telephone at about 7.55 am and DD no. 11A was recorded in this regard.
16. PW4 HC Satya Parkash deposed that on 28.05.2009, he was working as duty officer at PS Mukherjee Nagar and on that day, at 7.55 am, on receipt of telephonic message from HC Raj Kumar from Hindu Rao Hospital that Harminder Singh, who was admitted in the hospital vide MLC no. 3632/09 on 22.05.2009 had expired, he recorded DD no. 11A, copy of which was proved as Ex. PW4/A to this effect and handed over the same to ASI Madan Lal for further necessary action.
17. PW5 SI Manohar Lal deposed that on 01.08.2009, on the request of IO Ins. Krishan Lal, he along with IO reached the place of occurrence i.e. Q. No. C22, New Police Line, Kingsway Camp, New Delhi, where he inspected the spot at the instance of IO SI Pradeep Kumar and took rough notes and measurements of the spot, on the basis of which, he prepared scaled site plan Ex. PW5/A and handed S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 14/ 44 15 over the same to IO on 24.08.2009.
18. PW20 Ct. Kush Vaidwan deposed that on 15.06.2009 on the directions of IO SI Pardeep Kumar, he got conducted the medical examination of accused Birju in Hindu Rao Hospital and after the said medical examination, he handed over the MLC of the accused to the IO.
19. PW22 HC Gajan Singh, who was working as ChithaMunshi having his office in the building of Civil Lines, deposed that on inquiry he told the IO that deceased Harminder @ Maruti was living in the barrack of the second floor there and from there, he was removed to Hindu Rao Hospital by one HC Muni Ram on 22.05.2009.
20. PW23 HC Nanhe Lal deposed that on 17.07.2009, he took two sealed parcel to the FSL Rohini vide RC no. 29/21/09 and deposited the same there and on return, he handed over the acknowledgment to the MHCM and that till such time the parcels remained in his possession, same were not tampered with. Medical/doctor witnesses :
21. PW9 Dr. Shyam Dutt, has proved the MLC no. 3632/09 Ex. PW9/A dated 22.5.2009 prepared by Dr. Anuj Kumar Saini, of patient Harjinder son of Sh. Balwant Singh, aged about 45 years brought by HC Muni Ram with alleged history S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 15/ 44 16 of physical assault and deposed that after examination, the patient was referred to EMO (S), EMO (O), EMO (M), EMO (ENT) and EMO (Dental).
22. PW10 Sh. Karamvir Singh, Lab Asstt. Blood Bank, Hindu Rao Hospital, deposed about providing of two units of blood of B +ve group for the patient Harjinder Singh and proved the blood requisition form as Ex. PW10/A and photocopy of the counter slip as Ex PW10/B.
23. PW11 Dr. Naseem Akhtar, SR (Surgery), Hindu Rao Hosptial appeared as a witness in place of Dr. Sanjay Kumar Patidar and proved the death summary of deceased Harjinder Singh as Ex. PW11/A.
24. PW6 Dr. M.K. Panigarhi had conducted the postmortem on the dead body of Harminder Singh son of Balvinder Singh on 30.05.2009 on request made by IO and proved his detailed report of examination as Ex. PW6/A. He deposed in details about 17 external injuries found on the body of the deceased. He also gave details of findings of internal examination of the dead body of the deceased. On the basis of the clinical and postmortem report findings, PW6 opined that death in this case could be possible due to septicaemic shock consequent to perforation of rectum due to forceful introduction of a hard and blunt object into the rectum through the anus, which is sufficient to cause death in ordinary course of nature. S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 16/ 44 17 Witnesses regarding investigation, arrest of the accused and recovery of alleged weapon of offence :
25. PW14 Ct. Sunil Kumar deposed that on 20.06.2009, he joined the investigation of the present case with SI Pardeep and Ct. Gambhir and that on that day, accused Gurjinder @ Brijender led the police party to his house at C22, NPL, Delhi and from his house, he got recovered one black coloured leather belt kept under the bed and one Mathani (Dahi Bilone Wala Danda) from a slab in the kitchen and same were sealed in two separate pullandas and were seized by the IO vide seizure memo Ex. PW14/A and Ex. PW14/B. During his deposition, he also identified the belt as Ex. P1 and Mathani of wooden as Ex. P2.
26. PW16 Ct. Gambhir is put forth by the prosecution as a witness to recovery and arrest of both the accused persons and he deposed that he had joined the investigation of the present case with SI Pardeep Kumar on 30.05.2009, 15.06.2009, 19.06.2009, 20.06.2009 during proceedings of apprehension, arrest of accused and recording of disclosure statements of accused Birju and Gurjinder Singh. He further deposed that on 20.06.2009, accused Gurjinder led them to his house i.e. C22, NPL and from there, he got recovered one leather belt and mathani and both these articles were sealed in two separate cloth parcels with the seal of PK and thereafter taken into possession. He also identified the belt as Ex. P1 and Mathani as Ex. P2.
S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 17/ 44 18
27. PW17 Ct. Radha Kishan deposed that on 16.6.09, he joined the investigation with the IO and on that day, accused Birju led them to the Quarter no. C22, NPL, police quarter and pointed out the room adjacent to the kitchen while saying that it was the same place, where he along with Birjender gave beatings to Harminder @ Maruti and inserted Mathani (Dahi Belone Wali) in his anus and the witness proved the pointing out memo Ex. PW17/A in this regard. He further deposed that thereafter, accused Birju led them to many places to get accused Birjender arrested, but was of no avail.
28. PW24 ASI Madan Lal is the first IO of the case and he deposed that on 22.5.09, on receipt of DD no. 18B Ex. PW18/A regarding admission of Harminder Singh in Hindu Rao Hospital, he went to HR Hospital and collected the MLC of injured Harminder Singh, on which doctor mentioned that patient was 'unfit for statement' He further deposed that as no witness met him in the hospital, he kept the said DD pending and that he visited the hospital once or twice, but the injured continued to remain unfit for statement. He further stated that on 28.5.09, on receipt of DD no. 11A Ex. PW24/A regarding death of injured Harminder Singh, he went to Hindu Rao Hospital and got preserved the dead body and that thereafter, he prepared rukka Ex. PW24/B on the basis of DD no. 11A and got registered the FIR in present case and that after registration of the case further investigation was marked to SI Pardeep Kumar.
S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 18/ 44 19
29. PW21 SI Pradeep Kumar is one of the IOs of the case and he deposed that on 29.05.2009, after registration of the FIR, the investigation of this case was assigned to him and that he collected the MLC of Harjinder @ Harvinder from PW24 ASI Madan Lal. He further stated that after preparing the inquest papers Ex. PW21/A, Ex. PW21/A1 and Ex. PW21/A2 and establishing the identity of the dead body, he got conducted the postmortem over the same and handed it over to the brother of the deceased. He further stated that after recording the statements of PWs ASI Surender, HC Dharam Singh and Ashok KumarJuice wala, he search for the accused persons, but they could not be arrested He further deposed about the arrest of accused Birju on 15.06.2009 and proved the arrest memo of said accused as Ex. PW13/A, personal search memo as Ex. PW13/B, his disclosure statement as Ex. PW16/B and pointing out memo dated 16.06.2009 prepared at the instance of accused as Ex. PW17/A. He also deposed about the arrest of accused Gurjinder on 19.06.2009 and proved the arrest memo of said accused as Ex. PW13/C, personal search memo as Ex. PW13/B, disclosure statement as Ex. PW16/B. He further deposed that on 20.06.2009, accused Gurjinder led the police party to Quarter no. C22, NPL, Kingsway Camp and pointed out the room, where he and his coaccused Birju gave beatings to deceased and also got recovered one belt and one mathani and both of the said articles were sealed into two separate cloth parcels and sealed with the seal of PK and were taken into possession vide memo Ex. PW14/A and Ex. PW14/B respectively. He further deposed that on 20.06.09, he collected the postmortem report of deceased from Hindu Rao Hospital and that on S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 19/ 44 20 01.08.2009, SI Manohar Laldraftsman inspected the spot at his instance.
During his crossexamination, PW21 stated that they came to know about the assailants Gurjinder @ Brijender and Birju Dass on the basis of statement u/s 161 Cr.P.C of Ct. Krishan Kumar dated 30.05.2009. He also termed it correct that mathani and belt recovered at the instance of accused persons are easily available in the domestic houses as well as in the market.
30. PW26 Ins. Krishan Lal is the last Investigating Officer of this case and he deposed about the investigations conducted by him on various dates i.e. 17.07.2009 and 01.08.2009. He stated that during course of investigation, he sent the exhibits of the present case to FSL, got prepared the site plan Ex. PW5/A through SI Manohar Lal and he himself also prepared the site plan of spot vide Ex. PW26/B. He proved the FSL report as Ex. PW26/A.
31. After closing of prosecution evidence, statements of accused Gurjinder and Birju were recorded u/s 313 Cr.P.C., wherein the accused persons have denied the prosecution evidence and stated that they are innocent and had been falsely implicated in the case. Accused Gurjinder also stated that he does not know deceased Harminder and had no monetary dealings with him. Both the accused refused to lead any evidence in their defence.
32. Arguments have been addressed by learned defence counsel Sh. S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 20/ 44 21 Shubham Asri, ld. Amicus Curie for the accused persons as well as learned Additional PP for the State. Written submissions have also been filed on behalf of accused persons. Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt. It is submitted that from the testimony of witnesses examined by it, prosecution has succeeded in proving that on 13.05.2009, both the accused persons had taken injured/deceased Harminder with them and when injured/deceased returned back on 15.05.2009, he had multiple severe injuries on his person and that injured/deceased disclosed to PW7 Ashok Kumar, PW12 HC Muni Ram, PW19 HC Dharam Singh, PW13 ASI Surender Singh and PW18 Ct. Krishan Kumar that he had been given beatings at Quarter no. C22, NPL, Kingsway Camp by accused Birju Chhole Wala and Gurjinder with belt and they also inserted mathani (dahi bilone wala danda) in his anus as he has to return some money to them and that condition of injured/deceased became serious on 22.05.2012 and he was admitted to hospital by PW12 HC Muni Ram and PW19 HC Dharam Singh and that injured/deceased succumbed to his injuries on 28.05.2009 and that it was none other than accused Birju Chhole Wala and Gurjinder, who were responsible for injuries, due to which injured Harminder @ Maruti died an unnatural death.
33. On the other hand, learned counsel for accused has contended that the present case is based on circumstantial evidence, but chain of circumstances is not complete and there are missing links in evidence produced by prosecution. He has S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 21/ 44 22 contended that none of the public witness examined by the prosecution have proved the factum of lastly seen of the deceased in the company of deceased. He further submitted that there are material discrepancies in the testimonies of prosecution witnesses which go to the root of its case. Emphasis has been made on the delay in recording of statement of witnesses u/s 161 Cr.P.C to contend that this delay reflects that these witnesses were planted later on to make out some case against the accused persons. It is submitted that neither the witnesses to "last seen" nor those to the alleged "dying declarations" of injured/deceased are reliable witnesses. It is contended that in these facts and circumstances prosecution has completely failed to prove its case against the accused and it is prayed that accused be acquitted of charge u/s. 302/201.
34. I have heard the learned Additional PP as well as learned counsel for accused and also perused the record carefully.
35. In order to bring home charge u/s 302 IPC, prosecution is required to proved as under :
(i) that accused committed the act by which, the death is caused with the intention of causing death, or ;
(ii) that accused committed the act with the intention of causing such bodily injury, which he knew is likely to cause the death of the person to whom the harm is caused, or ;
S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 22/ 44 23
(iii) that the person committed the act with the intention of causing bodily injury to any person and the said bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or ;
(iv) that the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as it likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
36. It is to be examined whether from the documents placed on record and testimony of its witnesses, prosecution has succeeded in proving that accused persons only and none other than accused persons were responsible for death of deceased/injured Harminder @ Maruti.
Discussion based on the evidence led by the prosecution :
37. The circumstance evidential relied upon by the prosecution is of dual nature, firstly, the evidence of last seen and secondly, various dying declarations made by the injured, prior to his death. The witnesses examined by prosecution in this regard are PW8 Naseem Khan, PW13 ASI Surender Singh, PW7 Ashok Kumar, PW12 HC Muni Ram, PW19 HC Dharam Singh and PW18 Ct. Krishan Kumar and the testimonies of all these witnesses qua the factum of last seen and dying declarations is overlapping.
S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 23/ 44 24
38. The law relating to the standard of evidence required in a case, which is solely based on circumstantial evidence has been settled by various judgments of Hon'ble Apex Court in Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh, AIR 1952 SC 343, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 and Ashish Batham v. State of Madhya Pradesh, 2002 (7) SCC 317, wherein it has been laid down that the circumstances from which the inference of guilt is to be drawn should be fully established ; the circumstances should be of conclusive nature ; the facts established should be consistent only with the hypothesis of the guilt of the accused ; the circumstances established should be incompatible with the innocence of the accused and the chain of evidence should be complete so as to show that in all probability the act must have been done by the accused.
39. Cases where the prosecution relies on evidence of the deceased having been last seen in the company of the accused, too, are a species of circumstantial evidence cases. In such prosecution, the court has to additionally be aware that apart from proof of all the circumstances, and the equally rigorous rule for proof of link of the chain of circumstances, the last seen theory comes into play only when the time gap between the accused and the deceased being last seen together alive and the time of death is so small that the possibility of anyone else being the author of crime is impossible as has been held in State of U.P.. vs. Satish AIR 2005 SC 1000 and Malleshappa vs. State of Karnataka, AIR 2008 SC 69. S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 24/ 44 25
40. To prove that deceased was lastly seen going with the accused persons, the prosecution has relied upon the testimonies of PW8 Naseem Khan and PW13 ASI Surender, both of whom are stated to have seen the injured Harminder Singh in company of the accused persons prior to his being discovered in serious conditions with multiple injuries, which ultimately proved fatal for him. As per PW8 Naseem Khan, deceased Harminder used to take food with him at his barber's stall and on 13.05.2009, at about 1.30 pm, when deceased Harminder was accompanying PW8 to Hotel, to bring dal (pulses), he was called by someone and on being so called, Harminder went towards that person while telling PW8 that he would return back within 15/20 minutes. When, Harminder returned back after three days, he was having multiple injuries on his person and when asked by PW8 as to what had happened, the injured told him that an altercation had taken place with some one, in which he sustained injuries on his person. The PW8 specifically stated that deceased Harminder had not disclosed the names of his assailants to him and that he could not identify the persons, who had called Harminder on 13.5.2009, when he was accompanying PW8 to hotel. The PW8 remembered being told by deceased that accused Birju and Gurjinder had taken him to Govt. Police quarter on 13.5.2009 and given him beatings only after he was declared hostile by Ld. Addl. PP and was crossexamined in this regard. He also identified accused Birju and Gurjinder on specific pointing by the learned Addl PP. Considering the divergent version given by PW8 in his testimony, it was imperative that there be some corroboration of his testimony, for which the prosecution has relied upon the S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 25/ 44 26 testimony of PW13 ASI Surender. The testimony of PW13 ASI Surender, however creates further doubt regarding the version put forth by the prosecution for PW13 ASI Surender deposed that on 13.5.2009, both accused persons came to Harminder @ Maruti, who was residing in the barrack on second floor of PS Civil Lines, where PW13 was posted and took him somewhere. PW13 does not mention anything about presence of PW8 at that time. He also does not mention that he was at some other place than the barracks of PS Civil Lines at that time i.e, at the barber's shop of PW8 or on way of hotel, where PW8 was going with deceased Harminder. It appears from the testimony of PW13 that the accused persons had visited the barrack, where deceased was staying to call him for during his crossexamination by ld. Addl. PP, PW13 termed it correct that on 13.05.2009, when accused Gurjinder and Birju had come to call deceased Harminder, they both were drunk and that accused Gurjinder had asked Harminder for Rs. 2,500/, but Harminder was not having any such amount at that time and that PW13 had asked Harminder not to accompany such persons as he was suspicious of them, but Harminder did not pay heed to his advice. PW8 Naseem also does not mention about presence of PW13 with him and deceased Harminder on 13.05.2009 or both the accused being drunk or accused Gurjinder demanding Rs. 2,500/ from the deceased or PW13 advising deceased against accompanying the two accused persons. The fact that PW13 does not mention the time of visit of both the accused to the barracks, raises further questions, since it is not the case of the prosecution that deceased Harminder had been called twice by the accused persons, S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 26/ 44 27 firstly in presence of PW8 and secondly in presence of PW13 or vice versa and thus, there is a doubt as to which of the two witnesses i.e. PW8 or PW13 had actually seen deceased Harminder going with the accused persons on 13.05.2009 and from where.
41. Coming to the various dying declarations alleged to have been made by the deceased, before his death to different persons, including officials from his own department, the prosecution has relied upon the testimonies of PW7 Ashok Kumar PW8 Naseem Khan, PW12 HC Muni Ram, PW13 ASI Surender Singh, PW18 Ct. Krishan Kumar and PW19 HC Dharam Singh. It is noteworthy that none of these dying declaration are in writing, but are in the form of ocular evidence, based on certain facts and circumstance, which were alleged to have been disclosed by deceased, to these witnesses, prior to death, and became relevant after death of deceased Harminder as to cause of his death and persons responsible for it.
42. PW7, is a juice vendor, who supplied juice to various police officials staying in barracks of PS Civil Lines including deceased Harminder. This witness deposed that on 15.5.2009, he went to barrack and found Harminder lying on a cot with multiple injuries on his body and on asking by PW7, Harminder told him that one person who was resident of village, situated near his native village and also belonged to the same department (Police department) had caused injuries on his S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 27/ 44 28 body. Thus, as per PW7, deceased told him that only one person was responsible for causing alleged injuries on his person. Despite his cross examination by ld. Addl. PP, PW7 denied that deceased Harminder had told him that accused Gurjinder and Birju (Chhole Wala), who used to visit him in barracks, had taken him to C22, NPL Colony and beaten him and had also inserted mathani (Dahi Bilone wala danda) in his anus.
43. The second witness put forth by the prosecution qua the dying declaration made by deceased Harminder on 15.5.09 is PW8 Naseem Khan, a barber, who is stated to be on friendly terms with the deceased. The testimony of this witness has already been discussed hereinabove regarding the last seen evidence more specifically in relation to discrepancy with the testimony of PW13 ASI Surender. During his examinationinchief, PW8 also deposed that when deceased Harminder returned after three days, he was having multiple injuries on his person and was admitted in Hindu Rao Hospital and on the day, he was being taken to hospital, he told PW8, on his asking, that an altercation had taken place with someone, due to which, he had sustained injuries on his person. He specifically denied that deceased Harminder had disclosed names of assailants to him or that he could identify the persons, who had called Harminder on 13.5.2009, when he was accompanying PW8 to hotel. During his cross examination by Ld. Addl. PP, PW8 gave a different version and he not only S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 28/ 44 29 remembered being told by deceased Harminder on 15.5.2009 that he had been taken to Govt. Police Quarter by accused Birju (Chhole Wala) and Gurjinder, but was also given beatings by them. He, however, continued to deny that till the time of his death, Harminder was scared of Birju (Chhole Wala) and Gurjinder and was not ready to make any complaint against them as he was afraid that they would kill him. He identified both the accused only on specific pointing out by ld. Addl.PP.
44. From the crossexamination of PW8, it is again brought out that he was not aware of duty timings of police officials residing in the police barrack and that PW8 came to know of the return of deceased Harminder to the barrack, when he was asked by some police officials to bring medicines for him and that deceased Harminder had not returned back to the barrack in his presence. The PW8 has not stated anything as who had asked him to bring medicine for deceased Harminder, from where he got the said medicine, who paid for it or even the name of the said medicine. Considering, the contradictory version given by PW8 at different stages of his testimony as also the fact that he did not know, when the deceased returned back to the barracks, considerable doubt is cast upon his testimony and the fact whether he had met deceased Harminder on 15.5.2009 for the deceased to have disclosed anything about the manner in which, he had sustained injuries to PW8. Even otherwise, if testimony of PW8 is to be believed then also the injuries sustained by deceased Harminder had genesis in altercation with some one, meaning thereby that there was only one assailant and PW8 was told S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 29/ 44 30 about it on the day, deceased was taken to hospital i.e. 22.05.2009 and not on 15.5.2009 as has been put forth by the prosecution.
45. Coming to testimony of PW13 ASI Surender, he too has been put forth as a witness to the statement made by deceased on 15.5.2009 regarding the facts which became relevant after his death to explain the circumstances, in which he had sustained injuries, which ultimately resulted in death of the deceased. According to PW13, he had seen both the accused visit deceased, who was staying in barracks of PS Civil Lines. He had also seen deceased Harminder leaving with the accused Birju (Chhole Wala) and Gurjinder on 13.05.2009 and thereafter, found deceased Harminder @ Maruti with multiple injuries on his person in the barracks on 15.5.2009. At that time, deceased is stated to have told PW13 that Birju (Chhole Wala) and Gurjinder gave beatings to him with belt and also inserted mathani (dahi bilone wala danda) in his anus as he had to return some money to them.
46. When declared hostile by Ld. Addl. PP, PW13 stated that both the accused were drunk on 13.5.09 and during their visit to the barrack to call deceased Harminder, accused Gurjinder had asked for Rs. 2,500/ from Harminder, who did not have any such amount at that time. He also stated that he was suspicious of both the accused persons and had asked deceased Harminder not to accompany them. The conduct of PW13, a police official, whose primary duty is not only to report about any suspicious circumstance, but also to endeavour to avert any untowards S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 30/ 44 31 happening is absolutely unnatural. PW13, despite his suspicion of the two accused persons allowed deceased Harminder to go with them and did not bother to find out about the whereabouts of deceased Harminder, when he failed to return to the barrack, and even when he found deceased in the barrack on 15.5.09 with severe injuries on his person and was told about the names of the assailants, took no action against the accused person let alone report the matter to the some senior officers or concerned police station. It is noteworthy that even after the deceased was admitted in the hospital on 22.5.2009 and expired on 29.05.2009, PW13 did not think it necessary to report about the matter to anyone and all of a sudden, answered to call of his conscious, when his statement was recorded on 2.6.09 by the IO.
47. Even thereafter (i.e. after 02.06.2009), no effort was made to identify the accused persons. It is noteworthy that one of the accused namely Gurjinder @ Bijender was employed with police department and his whereabouts would have been easily traceable, had these particulars been in knowledge of PW13 and the IO in the first instance. The specific identification of the accused persons by PW13 in these circumstances is doubtful considering that he has stated in his cross examination that neither of the two accused were known to him prior to the incident and that he had never met them nor knew them through third persons. Moreover, neither PW8 Naseem Khan, nor did PW13 ASI Surender mention about each others presence with deceased Harminder on 15.05.2009, when the deceased is S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 31/ 44 32 alleged to have made statement (s) to them about the manner, in which he had sustained injuries. Noticeably, the time when the deceased had made said statements to PW8 and PW13 is missing. Thus, there is considerable doubt whether any dying declaration was made by the deceased at all on 15.5.09.
48. Other two witnesses, whose testimony is relied upon by the prosecution regarding the statement made by the deceased on 22.5.09, prior to his slipping into oblivion, are PW12 HC Munni Ram and PW19 HC Dharam Singh. PW12 HC Munni Ram deposed that on 22.05.2009, condition of deceased Harminder, who was living in the barracks of PS Civil Lines, became very serious and he along with PW19 HC Dharam Singh took him to hospital and that on the way, deceased told them that accused Birju (Chhole Wala) and Gurjinder had given him beatings and insert mathani (dahi belone wala danda) in his anus on 13.5.2009 and that father of Gurjinder was in Delhi police and that the accused had taken deceased to his quarter situated in Model town as there was some disputes on the issue of money, which deceased had to return them. It is noteworthy that the MLC Ex. PW9/A finds mention of name of PW12 HC Munni Ram as the person who had got injured/deceased Harminder admitted in hospital. The alleged history recorded on the MLC is of "assault (seven days back)". The name of assailants, which were known to PW12, were not mentioned by him to the doctor, who prepared the MLC or even to PW18 Ct. Krishan Kumar, duty constable present at Hindu Rao Hospital at the time of admission of the deceased. It is noteworthy that DD S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 32/ 44 33 no. 18 B Ex. PW18/A (also exhibited as Ex. PW25/A), registered on information regarding admission of deceased Harminder in hospital on 22.5.2009 and DD Ex. PW4/A (also exhibited as Ex. PW24/A) registered upon expiry of deceased Harminder on 28.05.2009 find name of PW12 mentioned, along with his belt number, as well as the fact that PW12 had got deceased admitted in hospital on 22.5.2009. From the crossexamination of PW12, it is clearly brought out that local police had reached the hospital in his presence on 22.5.09 when he got deceased admitted in hospital and that he had also met officials from PS Mukherjee Nagar between 22.5.09 to 25.08.2009 (the day on which, his statement u/s 161 Cr.P.C was recorded), several times yet he did not inform about the facts disclosed to him by the deceased on 22.5.09. He concealed the circumstances relating to death of deceased Harminder, the revelations made by deceased to him on 22.05.2009, from everyone, including the doctors at the hospital, other police officials and the IO of the case. The only conclusion that can be drawn in these circumstances is that either deceased did not state any such facts to him. The fact that none of the I.Os, ie. PW24 ASI Madan Lal (assigned investigation pursuant to DD no. 18B), PW21 SI Pradeep (assigned investigation after 29.5.09, when the case FIR was registered in the case), and PW26 Ins. Kishan Lal (who took over the investigation of the case after 22.6.09) made any efforts to trace out PW12 or to record his statement considering that it was PW12, who had got deceased admitted in hospital and further despite the fact that the name and belt S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 33/ 44 34 number of PW12 was clearly mentioned in various police documents/D.Ds and medical record/MLC, also casts doubt upon the prosecution case and the alleged dying declaration made by the deceased on 22.5.09. In these facts and circumstance, the possibility of PW12 being planted as a witness subsequently cannot be ruled out.
49. Coming to testimony of PW19 HC Dharam Singh, this witness is also stated to be accompanying PW12 HC Muni Ram, when Harminder was taken to hospital and being told that on the way, deceased told them that accused Birju (Chhole Wala) and Gurjinder had given beatings to him and insert mathani (dahi belone wala danda) in his anus, at NPL quarters on the issue of transaction of money. He does not mention about the date of the alleged beatings. He then, goes on to depose that after deceased Harminder @ Maruti was got admitted in Hindu Rao Hospital, he used to visit him and at that time, Harminder @ Maruti used to tell him that the accused persons, who gave him beatings would kill him, so he wanted to leave hospital for his house. It is pertinent to note that as per MLC Ex. PW19/A, deceased Harminder remained unfit for statement after 12.45 pm on 22.5.09. Considering the exaggerations made by PW19 and also the fact that deceased is stated to have made dying declaration dt. 22.05.2009 to PW19, in presence of PW12 HC Muni Ram and there is doubt whether any such dying declaration was in fact made to PW12 HC Muni Ram by the deceased, considerable cloud is cast upon credibility of PW19 as a witness. Further, the fact S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 34/ 44 35 that PW19 did not report about the matter to any senior police officials or the officials of PS Mukherjee Nagar till 02.06.09 also creates a doubt that he may be a planted witness. Here again, omission by the three I.Os of the case to examine PW12 HC Muni Ram despite the fact that PW19 stated in his statement u/s 161 Cr.P.C to police that PW12 HC Muni Lal was accompanying him, when deceased was taken to hospital, is a circumstance, which prosecution has failed to explain.
50. Lastly coming to the testimony of PW18 Cr. Krishan Kumar, who was posted as duty constable at Hindu Rao Hospital on 22.5.2009, when deceased Harminder Singh was admitted, and had passed on the said information to PS Mukherjee Nagar. This witness too stated that at the time of his admission in the hospital, deceased Harminder had told him that accused Birju (Chhole Wala) and Gurjinder had given him beatings at quarter of constable Bijender at NPL, Kingsway Camp. Despite having this knowledge, PW18 slept over this important piece of information and merely conveyed about admission of deceased Harjinder in hospital pursuant to Jhagra about seven days ago. He has clearly admitted in his crossexamination that he did not reveal the names of the assailants to PW24 ASI Madan Lal, when he reached the hospital. Again, the conduct of PW18 creates a doubt, whether he is a planted witness.
The Conduct of police officials/witnesses
51. The conduct of the police officials/witnesses in the present case raises S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 35/ 44 36 for more questions than answers. None of the material police witnesses namely PW12 HC Muni Ram, PW13 ASI Surender Singh, PW18 Ct. Krishan Kumar and PW19 HC Dharam Singh discharged their responsibility by reporting about the commission of offence, manner of commission of offence and the names of the assailants to any of their superior officers or concerned Police Station despite the fact that deceased Harminder is alleged to have told them these facts much prior to his death on 28.05.2009.
52. While dealing with such like conduct, coram of Hon'ble Mr. Justice Ravinder Bhat and Mr. Justice S.P. Garg observed in the case of Johnson vs. State decided on 29.02.2012 that testimony of such witness is to be perused with a great caution. In the said case, a beat constable was put forth as an eye witness to the murderous attack on the deceased. While discussing testimony of said witness, it was observed in para 22 of the judgment that : "PW5 Ct.Subhash Chander's testimony is to be perused with the great caution as he was attached with the police station and was posted as a beat officer in the area where he was supposed to be vigilant and prevent any such occurrence. Introduction of PW5 as an eye witness by the police to save their skin cannot be ruled out. Presence of PW5 at the spot becomes doubtful as he failed to inform at his police station about the incident and as per PW15 ACP Ishwar Singh posted as SHO, PS Uttam Nagar, he received S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 36/ 44 37 the information about the incident on wireless at about 10.30 P.M. and reached the spot at around 11.45 P.M. It is curious that a police constable attached to the concerned police station will not intimate his immediate superior officer i.e. SHO........."
53. Similar observation have been made by coram of Hon'ble Mr. Justice Ravinder Bhat and Mr. Justice S.P. Garg in a judgment dated 27.04.2012 in the case of Jugal Kishore vs. State, Govt. of NCT of Delhi, wherein deceased is alleged to have made one of the dying declaration to a home guard, who was examined as PW17, while dealing with conduct of this witness, it was observed in para 14 of the judgment that : "14. The first question which this Court has to decide is whether PW17's testimony regarding the identity of Meena's attacker, i.e. the appellant, is credible and trustworthy. This witness deposed that he was working as a Constable with the Home Guard till 2005. He was informed about the acid attack on Meena, by some boy. He rushed to the District Park, and saw her. He took her to the GTB hospital. Either when he went there, or when he took her to the hospital, Meena told him about the circumstances surrounding the attack, as well as the identity of the person who poured acid over her. Now, external corroboration of his version is prima facie found in Ex. PW12/A the MLC, which contains his S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 37/ 44 38 name, as the man who took the injured. Intriguingly, however, the injured's name is not recorded. PW20 mentions that when he went to the hospital, he did not find PW17, and that the witness went to the police station later. Ex.PW8/A is the DD entry in the records of PS Nand Nagri, at 9:30 AM, mentioning that an unknown woman had been admitted with extensive burn injuries. PW20 stated that he reached the hospital at around 9:45 AM and the statement of the deceased was recorded at 10:30. The FIR (Ex. PW5/A) was recorded at 10:45 AM. This clearly shows that at least when PW17 took the injured to the hospital, her identity was unknown. The MLC also mentions only about alleged history of burn injuries; there is no clue that acid was thrown in the manner alleged. Besides, being a responsible officer, trained in the drill of what ought to be done when dealing with a medico legal case, it is quite surprising that PW17 left without waiting for the police. His conduct is not that of a responsible individual; he does not even mention having seen any police man, and satisfying himself that the incident was suitably reported to the nearest police station. He certainly was not present when the alleged dying declaration was recorded by PW20. PW17 deposed that his duty ended at 2:00 PM and that he went that evening to the police station to record his statement. This casual approach cannot be understood by the S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 38/ 44 39 court."
In the present case also, the unnatural conduct of PW12 HC Muni Ram, PW13 ASI Surender Singh, PW18 Ct. Krishan Kumar and PW19 HC Dharam Singh in notreporting about commission of offence and names of offenders to the senior officers does not stand explained by prosecution and is fatal to its case. Others contradictions in the prosecution case :
54. The incident of beatings given to the deceased by the accused Birju (Chhole Wala) and Gurjinder is stated to have taken place at quarter no. 22, NPL Colony. The said house is stated to be allotted to the father of accused Gurjinder @ Barjinder, a senior police officials. No document has been place on record by the prosecution to show in whose name, Quarter no. 22, NPL Colony was allotted and if at all accused Gurjinder was having exclusive access to it and used the same, to the exclusion of other family members of his and his father's family.
55. Further, as per prosecution case, deceased Harminder remained lying in injured condition at quarter no. 22, NPL till next day morning i.e. 14.5.2009 and thereafter, he kept lying in an injured condition in NPL park till 15.5.2009, when he returned back to barracks, where he was staying. It is surprising that no one saw deceased Harminder leave quarter no. 22, NPL on 14.5.09 or his lying in an injured condition NPL Park on 14.05.2009 and 15.5.09. Though, IO has not filed any site plan of NPL park, however, considering that the said park is in police colony having S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 39/ 44 40 number of residential family quarters of police officials as well as barracks wherein several police officials are generally living/staying, number of uniformed personnel as well as their family members would generally be accessing the said park, even assuming that it is not open to general public. A judicial notice can also be taken of the fact that the schools in Delhi was closed for summer vacation from middle of May to July 1st/2nd week and during this period, number of children move out of their house to open place(s) like a park to play, enjoy and spend time with their friends. Thus, possibility of deceased Harminder lying in the said park in a badly injured condition, unnoticed by anyone is very remote. In these circumstances eventuality of severely injured Harminder going from NPL Park to his barrack, unnoticed, is also impossible.
56. Further, there is a gap in the prosecution case as to what happened to the deceased between 15.5.09 to 22.05.2009, when he was allegedly lying in his barrack in an injured condition and why despite the presence of several police officials, no one reported the matter to any senior officials or concerned police station and why no medical treatment was made available to deceased and his condition was allowed to deteriorate to such a stage that it became irretrievable. There is no witness examined by prosecution to show that deceased Harminder was in fact in his barrack between 15.5.09 to 22.5.09 and was seen by other police officials (except PW13 ASI Surender Singh) staying in his barracks. The prosecution has put forth two sets of witnesses, one of his dying declaration dt. 15.5.209 (PW7 Ashok S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 40/ 44 41 Kumar, PW8 Naseem Khan and PW13 ASI Surender) and dying declaration dated 22.5.09 (PW12 HC Muni Ram, PW18 Ct. Krishan Kumar and PW19 HC Dharam Singh), whose testimonies has already been discussed threadbare hereinabove to come to conclusion that they are unreliable witness and possibility of each one of them being a planted witness cannot be ruled out In these circumstances, failure on the part of prosecution to explain about bearings of injured/deceased Harminder between 15.5.2009 to 22.05.2009 i.e where he was, whether he was seen by other police officials in the barrack and provided medical treatment etc, is by itself fatal to the prosecution case. No doubt, different persons react in a different manner to a situation, specially when faced with an incident involving crime, but unnatural, indifferent and unexplained conduct on the part of entire group of police officials, who were either sharing barrack with the deceased or were living within its vicinity, cannot be believed at all. At least, some one would have reported the matter about the presence of unnatural injuries and serious condition of injured/deceased Harminder Singh @ Maurti to senior police officials or concerned police station, even if names of assailants were not known to them. In these circumstances, there is a serious doubt, if the deceased Harminder had returned to his barrack at all on 15.5.2009 in an injured condition and remained there till 22.5.09 before being removed to hospital.
57. Further, the alleged weapon of offence namely Mathani (dahi belone wala danda) and belt are easily available in the market. Moreover, the place of S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 41/ 44 42 recovery of the said articles i.e Quarter no. 22, NPL as already observed hereinabove, has not been proved to be in exclusive use and possession of the accused Gurjinder. Thus, mere recovery of the said articles, Ex. P1 and P2, at the instance of accused Gurjinder cannot be taken to be a circumstance against him to prove his guilt beyond reasonable doubt in absence of any other incriminating evidence.
58. Further, as per MLC Ex. PW9/A, injured Harminder was admitted in hospital on 22.5.09 at about 9.40 am and at that time, he was conscious but drowsy and he was declared unfit for statement only at 12.45 pm on 22.05.2009 by the doctor. As per DD Ex. PW18/A , the information regarding admission of injured was given to the PS Mukherjee Nagar at 9.25 itself and was marked to PW24 ASI Madan Lal, who stated that he had reached hospital at about 10.00 am. It is surprising that from 10.00 am till 12.45 pm, no effort was made by the IO to record the statement of injured, though during his crossexamination, PW24 stated that patient was unconscious and unfit for statement at 10.00 am, when he reached hospital, this does not find reflected from MLC Ex. PW9/A. It appears that entire case was manipulated after the deceased had died.
59. Before concluding, it would be relevant to observe that the present case has apparently been investigated in absolutely shoddy and lackadaisical manner, which reflects an image of police officials as abettors of criminals rather than S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 42/ 44 43 protectors of citizens from criminals and crime. All the three investigating officers namely PW24 ASI Madan Lal, PW21 SI Pradeep Kumar and PW26 Ins. Krishan Lal, who were assigned investigation on 22.05.2009, 29.05.2009 and 22.06.2009 respectively, appear to have deliberately overlooked their own records i.e. DD no. 18B, Ex. PW18/A, and DD no. 11A, Ex. PW4/A, and did not examine material witness PW12 HC Muni Ram in the first instance. Either, PW12 HC Muni Ram, PW13 ASI Surender Singh, PW18 Ct. Krishan Kumar and PW19 HC Dharam Singh, all of whom are police officials, deliberately withheld the material information about the crime and offenders, in connivance of the accused persons or the three Investigating Officers deliberately and malafidely investigated the matter in such a manner, as would provide the accused persons ready defence for their case and thus the role of the police officials especially investigating officers ought to be examined by the senior officers. These aspects of investigations constitute dereliction of duty and helping the accused persons and the same require departmental action. The Commissioner of Police is directed to initiate departmental inquiry against the erring police officials and to take strict departmental action against them under intimation to this court.
60. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused persons on record, beyond the reasonable doubts. Accordingly, I acquit both the accused S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 43/ 44 44 persons - Gurjinder @ Barjinder Singh and Birju Dass of the charged offences, giving them the benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 27.08.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 111/09 : State vs. Gurjinder @ Barjinder Singh : Page Nos. 44/ 44