Delhi High Court
Deepak Singh Negi And Ors. vs State (Nct Of Delhi) on 2 August, 2007
Author: H.R. Malhotra
Bench: R.S. Sodhi, H.R. Malhotra
JUDGMENT H.R. Malhotra, J.
1. These two appeals bearing No. Crl. A. 539/2002 and Crl.A.566/2004 are directed against the impugned judgment rendered by Additional Sessions Judge, Delhi dated 17th May, 2002 holding all the appellants guilty for commission of offence punishable under Section 302 read with Section 34 IPC and then sentencing them vide order dated 22nd May, 2002 to life imprisonment besides a fine of Rs. 5,000/- on each of the appellants and in default in paying the fine to further undergo rigorous imprisonment for one year.
2. Feeling aggrieved, by the Judgment these three appellants,namely, Deepak Singh Negi @ Gautam, Mohd. Kamran @ Shekhu Khan and Ganesh Jhana have filed one composite appeal whereas Sandeep @ Saleem has filed separate appeal.
3. Since both the appeals have arisen from one judgment, therefore, these two appeals are being disposed of together.
4. Facts as set out in the police report sent under Section 173 Cr.P.C. as also incorporated in the impugned judgment by Additional Sessions Judge are as under:
On 9th October, 1999 Mohd. Ismile and Shamshad, since deceased who is also stated to be the neighbour of Mohd. Ismile, were traveling in the same bus. While in the bus, on objection by the victim to the picking of his pocket, some altercation took place between the victim and 4-5 boys when Shamshad was caught from his collar and was dragged down from the bus by those boys who started giving him beating and stabbing at the stomach several time. Mohd. Ismile tried to intervene, but he too was given beating. Frightened with this, this witness ran away and came back to the spot accompanied by few of his workers by which time the victim had already been removed to the hospital by the police where he was declared 'brought dead'. Police was able to find one more eye witness after 2-3 days who is stated to be a Pan Bidi vender from whom they were able to know the names of the assailants. On 15th October, 1999 accused, Rakesh, was arrested and thereafter the police arrested other accused one by one; disclosure statement recorded and the weapons of the offence recovered. On completion of investigation, challan was filed against the accused persons and charges framed.
5. After recording the statement of Mohd. Ismile, the police came into action and commenced investigation. Police visited the hospital and came to know that Shamshad has succumbed to his injuries. The police then reached the spot after registration of the case and prepared the site plan. Postmortem of the deceased was got conducted next morning. The police investigators also recorded the statement of one Saleem on 12th October, 1999 who according to the prosecution had witnessed the occurrence.
6. On 15th October, 1999, the police arrested accused Rakesh a juvenile in this case and on his disclosure statement, arrested accused Deepak Singh Negi and thereafter, again on his disclosure statement arrested accused Mohd. Kamran. The accused persons refused to take part in the test identification parade on the ground that they have already been since shown to the witnesses by the police. Accused Sandeep @ Saleem who was arrested on 7th November, 1999 made his disclosure statement and pursuant to that statement, police party led to his house where he got recovered the dagger which he has used in the commission of crime and also the clothes which he was wearing at the time of crime. The weapon of offence and other articles taken into possession by the police and a seizure memo in this respect was prepared.
7. After completion of investigation, the police presented the challan in the court of Metropolitan Magistrate who in turn committed the same to the Court of Sessions, it being exclusively friable by the Sessions Court.
8. The prosecution in order to bring home guilt to the accused persons examined 27 witnesses which included eye witnesses, police officers and doctors who conducted autopsy on the deceased.
9. Incriminating evidence which had come during the course of trial against the accused persons was put to them by recording the statement of the accused persons under Section 313 Cr.P.C. All the accused persons denied the truthfulness of the prosecution case and claimed themselves to be innocent. Accused Ganesh Jhana while pleading innocence also desired to lead evidence in defense. Similarly, accused Mohd. Kamran led the evidence in defense. Sandeep @ Saleem also chose to lead the evidence in defense.
10. We have heard learned senior counsel appearing for three accused and counsel appearing for accused Sandeep @ Saleem. The line of arguments is common in nature. They urged that the prosecution has failed to establish its case beyond reasonable doubt against the accused persons as the testimonies of PW-1 and PW-4, prime witnesses of the prosecution, are not worthy credence. These witnesses, according to the prosecution case had witnessed the occurrence and, therefore, prosecution case primarily rests on the testimonies of these two witnesses.
11. We have perused the testimonies of these two witnesses threadbare. PW-1 Ismile who claims to be friend of the deceased worked as a tailor at Tuglakabad. He testified that though normally his duty hours were up till 800 p.m. but on 9th October, 1999 he became free at 7.00 p.m. and had gone to Gobind Puri to meet his brother-in-law. After meeting him, he was coming back to his house at Sangam Vihar by bus. Shamshad since deceased who happened to know PW-1 was also in that bus per chance. The witness noticed that the accused persons were surrounding Shamshad and trying to feel with his pocket which was objected to by the deceased on which the accused persons caught hold of Shamshad and dragged him down the bus as by that time bus had come to halt at Ravi Das bus stand. They started beating the deceased with fist and kicks. PW-1 on seeing this also got down to rescue Shamshad. When he was intervening, two of the boys one of whom he later identified as Deepak Singh Negi grappled with the witness. The witness further went on to say that deceased Shamshad taking advantage of this situation ran for his life towards Tara Apartments. The two of the accused who were busy beating the witness noticed this and they started chasing Shamshad, sparing this witness. The witness further testified that one of the accused who was later identified as Kamran had caught hold of Shamshad from behind whereas accused Sandeep and Ganesh started stabbing the deceased and gave successive blows on the deceased.
12. This witness further testified that after that he ran away to Tughlakabad to inform him about the incident and also to bring him on the spot along with him. This witness also deposed that there were public persons who had gathered there and they informed that the injured had been removed to the hospital by PCR. This witness is further said to have gone to the father of the Shamshad to inform him about the incident. We are surprised that this witness instead of roaming here and there, did not chose to make telephonic call to the police or the control room which in ordinary course would have been his first reaction. Though this witness stated to have traveled to and fro in bus but he failed to produce the bus ticket stating that though he had paid money to the bus conductor but he was not given ticket. If at all this witness actually traveled in the bus, he would have produced some documentary evidence that he had gone to Govindpuri to meet his brother-in-law and when he was coming back after meeting him, he saw this incident whereas in his statement recorded under Section 161 of the Code of Criminal Procedure, he stated that since his brother-in-law was not there at his house, therefore, he came back without meeting him. This according to our mind is a contradiction which needs to be noted as it tells about the veracity of the witness. This witness, according to deposition had received some blows as he too was assaulted by the accused persons while he tried to rescue Shamshad but no medical examination was conducted of this witness nor he ever offered himself for medical examination. According to this witness, the bus was over crowded and firstly incident had taken place in the bus itself and then when the bus had come to halt at Ravi Das bus stand, the accused persons according to this witness dragged him outside the bus and then stabbed him. Why no other independent witness was cited by the prosecution has not been explained. If at all public witness were not prepared to join the issue, at least investigators would have recorded the statement of the bus conductor in whose presence incident must have taken place, he being present in the bus.
13. On the aspect of refusing test identification parade, this witness categorically stated that he was called by the police on 25th October, 1999 and there he was shown one of the accused persons sitting in the room of'H.O. If that is so, the accused had justifiably refused to take part in the test identification parade as he has already been shown to witness which is against the criminal jurisprudence. Not only this, this witness was again called by the police on 1st November, 1999 perhaps when the two of the accused persons were being taken to the court for police remand and there two of the accused persons were shown to this witness. All these circumstances when taken together go to show that this witness was not impartial and there is possibility of this witness being shown as the eye witness whereas in actuality he was not so.
14. Whatelse comes in our mind to disbelieve this witness is that he testified that ordinary his working hours are up to 8.00 P.M. but on that date he became free at 7.00 P.M. and had gone to Govindpuri around 7.15 P.M.
15. Similarly statement of PW-4 is not free from doubts as he is the one who according to the prosecution was sitting at Ravi Das bus stand as he owns stall where he sells beetles and cigarettes. He claims to have seen the incident but at the same time, escapes from the scene of crime because of being scared and did not come to his place for two days nor he did report to the police until such time police came to him on 12th October, 1999 when he was sitting at stall. It is not explained as to how the police came to know that he was the eye witness of this case. Even otherwise, he being not available for two days cast doubt in our mind if he was really present who had witnesses the occurrence. It is not that the accused persons had threatened him or he was scared of anything, at least, he could ring up the police as according to the prosecution he had seen the occurrence.
16. The Additional Sessions Judge who conducted the trial of these accused persons also observed from the cross-examination of the witness that there were lot of passengers in the bus as well as at the bus stop but still none of the passenger was cited as a witness by the prosecution. The Additional Sessions Judge ought to have taken note of this serious lapse of the prosecution.
17. From the testimonies of these two prime witnesses of the prosecution, it cannot be said with certainty that they had actually witnessed the occurrence because there being so many discrepancies, contradictions and improvements as indicated above. There being also occasion for the prosecution to gather more reliable witness of the persons who were traveling in the bus and also of the persons who were present at the bus stop where incident of murder had taken place is also another consideration which weighs in our mind for acquitting the appellants because of lack of quality evidence. The witness PW-1 and PW-4 cannot be strictly termed as eye witnesses. They appeared to be chance witnesses and chance witnesses cannot be safely relied as held in Baldev Singh v. State of M.P. , Mousam Singha Roy v. State of W.B. , Harjinder Singh v. State of Punjab and Varkey Joseph v. State of Kerala 1993 Supp (3) SCC 745.
18. For all these reasons referred to above, we are of the opinion that the prosecution has not been able to travel the distance between "may have done it" and "must have done it" and, therefore, it will not be safe to convict the accused persons on the strength of this shoddy evidence.
19. Consequently, the impugned judgment and sentence part is set aside resulting in acceptance of these appeals. The appellants be released forthwith unless required in any other case.