Delhi District Court
State vs Lekh Raj & Ors Fir No.558/05//Sc ... on 31 May, 2013
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IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI (NORTH): ROHINI : DELHI
SC NO.119/11.
FIR NO.558/05.
PS JANAKPURI.
U/S.302/ 394/511/34 IPC.
STATE
VERSUS
1. LEKH RAJ @ PAPPU S/O. SHIVA
R/O. A874, J.J. COLONY, MADIPUR, DELHI.
2. SURESH KUMAR S/O. SHRI SHANKAR LAL
R/O. H.NO.B12, TARA NAGAR, PAPPAN KALAN,
DWARKA, NEW DELHI.
3. JAMIL @ WALI S/O. SHRI AHMAD ALI
R/O. H.NO.E580, MAHAVIR ENCLAVE,
PARTIII, GALI NO.79, NEAR BINDAPUR, DABRI, DELHI.
4. KAMAL S/O. SHRI RAMU
R/O. KHERA MOHALLA, ON THE BACK OF PRAKASH
TALKIES, DISTRICTFIROZABAD, U.P.
5. MAHESH CHAND GUPTA S/O. SHRI CHHOTEY LAL GUPTA
R/O.RZ A1/181, VIJAY ENCLAVE, NEW DELHI.
6. RAJU (Since Proclaimed Offender)
7. IKBAL (Since Proclaimed Offender)
STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 1 OF PAGE 29
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both S/o Rafiq, R/o Khara Mohalla, Behind Prakash Talkies,
Ferozabad, UP.
.....Accused
Date of Institution in this Court:25.02.2006
Date of Arguments:17.05.2013
Date of Judgment:31.05.2013
JUDGMENT:
1. Brief facts of the prosecution are that on 23.09.2005, a DD No.54B was recorded at PS Janakpuri on the information from PCR that one person is lying unconscious at C3/95, Janakpuri, near Dabri More. The said DD was assigned to ASI Kaptan Singh, who reached at the spot along with Ct. Parmod. Inspector Babu Lal also reached at the Orchid Hospital situated there on receiving the information of DD No.54B and DD No.27A, where he found a dead body of one person namely Kanti Lal Guliyani was lying on the stretcher of the hospital and he saw that blood was coming out from the cut on the left thigh of the said person. ASI Kaptan Singh informed to the Inspector that he had seen the blood of the deceased near Dabri More read light. Thereafter, Inspector Babu Lal reached there and inspected the spot and also found blood in front of STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 2 OF PAGE 29 3 gate of Minocha Child Care Clinic, E3/95, and trail of the blood was going up to Dabri More red light. Inspector called the crime team. In the meanwhile, wife, brother, relatives and neighbour of the deceased came at the spot. Thereafter he took the search of the dead body. Crime Team inspected the spot and took photographs. Thereafter, Inspector prepared the rukka and made endorsement on the said rukka vide DD No.54B and recommended the case for registration of FIR u/s. 302 IPC. Accordingly, FIR No.558/05 was recorded in the PS Janakpuri.
Inspector collected the crime team report, lifted the blood stained earth and earth control, prepared different pullandas and also prepared the site plan and sent the dead body to the DDU Hospital for its postmortem examination.
During investigation, one witness Vijay Kumar met him and told that he worked as conductor in the bus number DL1PB5668, route no.801 and on 23.09.2005 Lekh Raj, Suresh, Jamil, Mahesh Chand Gupta, Raju and Ikhlakh who were pickpocketer and member of the Lekh Raj @ Lekhu gang had run away from his bus when his bus was stationed at Dabri More red light and he further stated that his helper Joginder @ Bholu who was STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 3 OF PAGE 29 4 issuing the ticket on the back side window of the said bus told him after reaching at Palam that, at Dabri More Red Light pickpocketer have tried to pick the bag of one passenger and injured him and thereafter thrown him from the bus and thereafter said pickpocketer had run away. On this information Inspector got conducted the inspection of the bus number DL1PB5668 and he found blood on the back gate of the said bus. He seized the bus. Thereafter, on 25.09.2005 on the pointing out of the Vijay Kumar, he arrested accused Lekh Raj @ Lekhu. He recorded his confessional statement and on the basis of said confessional statement, accused Lekh Raj got recovered the knife used in the commission of crime. Accused also pointed out the spot of the incident. He filed the application for TIP of the accused, but accused refused to participate in the TIP. He took the police custody of the accused Lekh Raj. During PC Remand on 01.10.2005 he arrested accused Suresh and Jamil on the pointing out of accused Lekh Raj and recorded their confessional statement and both the accused persons pointed out spot, both the accused persons were kept in muffled face and application was filed for their TIP. They have refused to participate in thse TIP. STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 4 OF PAGE 29 5 On 04.10.2005 helper of the bus Joginder identified accused Lekh Raj @ Lekhu as the assailants, who stabbed on a passenger while committing the theft in his bus. Joginder also identified accused Suresh and Jamil who were in police custody at that time, as the other assailant/pickpocketer. On the pointing out of accused Suresh, he arrested accused Kamal and recorded his confessional statement. Accused Kamal also identified the spot. Application was filed for TIP of the accused Kamal, but he also refused to participate in the IP and during PC Remand witnesses identified the accused Kamal.
During investigation, he sent the exhibits to the FSL, got conducted the Postmortem examination on the dead body of deceased, recorded statement of witnesses from time to time, got prepared the scaled site plan and finally filed chargesheet against accused Lekh Raj @ Lekhu, Suresh Kumar, Jamil and Kamal u/s. 302/392/511/34 IPC.
While proceeding u/s. 82/83 Cr.P.C. was initiated against accused Mahesh Chand Gupta, Raju and Ikbal and they were kept in the column no.2. On 20.07.2006 information was received vide DD No.4A that, accused Mahesh Chand Gupta had STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 5 OF PAGE 29 6 been arrested in case FIR No.733/06 and u/s. 25 Arms Act. Hence, he was arrested with the permission of the court in this case on 27.7.2006 and interrogated him and he gave his confessional statement. Application was filed for the TIP of the accused Mahesh Chand Gupta and TIP proceedings was conducted, but Vijay could not identified the accused Mahesh Chand Gupta.
On 02.09.2006, TIP of the accused was conducted, through witness Joginder, but he could not identify the accused. They were coming out of Tihar Jail after TIP Inspector Pratap Singh heard that Joginder was talking with someone and was saying that, he has not identified accused Mahesh Gupta, "Kahan Miloge", inspector inquired from him, but he could not give satisfactory answer, but on the strict interrogation witness Joginder admitted that he was talking to some person, who had asked him not to identify accused Mahesh Chand Gupta. He collected the call details of those persons and found that mobile phone number 9899945411 is registered in the name of Sanjay Gupta, brother of Mahesh Chand Gupta and Sanjay Gupta and his son Boby had got available the said mobile phone to witness Joginder on which witness Joginder was talking with some person on the day of TIP. He recorded the STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 6 OF PAGE 29 7 statement of Joginder in this regard u/s. 161 Cr.P.C. in which Joginder admitted that he has not deliberately identified the accused Mahesh Chand Gupta during TIP. Finally, he also filed the supplementary chargesheet qua accused Mahesh Chand Gupta u/s. 302/397/411/34 IPC.
2. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.
3. Vide order dated 07.09.2006, charge u/s.396 IPC framed against all the accused persons, to which they pleaded not guilty and claimed trial.
4. To prove its case prosecution examined as many as forty seven witnesses.
PW1 Dr. Ashok Jaiswal is the member of the Medical Board, who conducted the postmortem examination on the dead body of Kanti Lal and proved his report as Ex.PW1/A and also proved his report regarding weapon of offence as PW1/B. PW2 HC Naresh Prasad is the duty officer and registered the FIR of the case Ex.PW2/A, he also proved the DD No. 31A Ex.PW2/C and DD No.34A as Ex.PW2/B. STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 7 OF PAGE 29 8 PW3 Ms. Archana Sinha, then Magistrate and conducted the TIP of accused Kamal and proved TIP proceedings Ex.PW3/A. PW4 Dr. K. Goel and PW5 Dr. Akash Jhanjee are also the member of the medical board, and conducted the postmortem examination on the dead body of deceased Kanti Lal and proved the PM Report of deceased.
PW6 Dr. Rajiv Khatri, prepared the MLC of the injured/deceased Ex.PW6/A. PW7 Vijay Kumar is the conductor of the bus in which murder of the deceased was committed but he turned hostile and did not identify the accused persons.
PW8 Hira Singh, stated that on 23.09. 05 he along with Raju removed the partition sheet of the bus number DL1PB5668 which was seized by the police vide memo Ex.PW8/A. PW9 SI Devender Singh is the incharge of Crime Team and proved his report as Ex.PW9/A & Ex.PW9/B. PW10 HC Vijay Kumar is the photographer of the crime Team and took the photograph of spot which proved as Ex.PW10/1 to Ex.PW10/20 and negatives of the said photographs as STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 8 OF PAGE 29 9 Ex.PW10/21 to Ex.PW10/40.
PW11 Ct. Jaibir Singh is also the member of the crime team and he took the photographs of the bus on 25.09.2005 and proved the photographs Ex.PW11/1 to Ex.PW11/8 and negatives of the said photographs are Ex.PW11/9 to Ex.PW11/16 (which is inadvertently mentioned as Ex.Pw11/9 to Ex.PW11/16).
PW12 Raju had deposed the same facts as deposed by PW8.
PW13 Joginder is alleged eyewitness of the incident, but he turned hostile and stated that he did not see the accused persons stabbing deceased .
PW14 Ct. Abraham deposited the sample exhibits to the FSL, Rohini.
PW15 Ct. Pramod Kumar had participated in the investigation and shifted the dead body of the deceased Kanti Lal to the mortuary Subzi Mandi.
PW16 Shalin Jain, Nodal Officer, Tata Tele Services had proved the call details of mobile number 9213907044 as Ex.PW16/A and also proved other documents as Ex.Pw16/C and Ex.PW16/D. PW17 HC Gurcharan Singh is the formal witness who is STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 9 OF PAGE 29 10 the witness of arrest of accused Kamal.
PW18 Jyotish Moharana, is the alternate nodal officer and proved the customer application form of mobile number 9899945411 as Ex.PW18/A and call details of the said mobile as Ex.PW18/B. PW19 Inspector Harender Singh( then SI) took the rukka to the PS for the registration of the FIR.
PW20 SI Kaptan Singh is the first IO. He stated that on receiving of DD No.54B was entrusted for investigation & he stated that he reached at Orchid Hospital, saw body of a deceased Kanti Lal lying stretcher and doctor declared him brought dead and he removed the dead body to DDU Hospital and he proved the DD No. 27A as Ex.PW20/A. PW21 Raj Kumar Guliyani and PW22 Kant Kishore have identified the dead body of the deceased Kanti Lal Guliyani.
PW23 Balraj Singh informed to the family member of the deceased after finding the deceased Kanti Lal is lying on the road.
PW24 Sarup Singh is the owner of the bus number DL1PB5688 and stated that its conductor was Vijay and Helper STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 10 OF PAGE 29 11 was Joginder @Bholu and proved the photocopies of attendance register as Ex.Pw24/A1 to Ex.PW24/A3. Photocopy of the purchase documents of Bus i.e. power of attorney of the bus and RC as Ex.PW24/B and Ex.PW24/C respectively. He also proved the seizure memo of the aforesaid documents as Ex.PW24/D and seizure memo of permit of the bus as Ex.PW24/E. PW25 Ct. Raghubir Singh is the DD Writer, he recorded the DD No.54B and proved the same as Ex.PW19/A. PW26 Ct. Sunil Dutt stated delivered the copy of FIR to the Ld. MM and other senior officers.
PW27ASI Balram stated recorded the DD No.27A Ex.PW20/A and also recorded DD No.28A and proved the same as Ex.PW27/A. PW28 HC Ashwani Kumar is the MHC(M).
PW29 Ram Chander stated that he was working as cobler at Red Light Dabri moad and in his presence accused Lekh Raj made confession Ex.PW29/A. PW30 Rajender Kumar, is the registered owner of bus number DL1PB 5668 and RC Ex.PW24/C he stated that he has given the bus to Sarup Singh vide power of attorney Ex.PW28/C. STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 11 OF PAGE 29 12 PW31 ASI Rajender Kumar stated that on 25.09.2005, in his presence accused Lekh Raj has pointed out the spot when he along with his associated Mahesh, Kamal, Raju and Jamil stabbed one person in bus route no.901 and pointing out memo Ex.PW29/A was prepared by the IO, in his presence.
PW32 HC Pradeep Kumar participated in the investigation with the IO and stated in his presence IO arrested Mohd. @ Jamil and Suresh vide arrest memo Ex.PW32/C and Ex.PW32/D and both the accused persons made confessional statement Ex.PW7/G and Ex.PW7/F respectively and prepared pointing out memo Ex.PLW32/E and Ex.PW32/F. He further deposed that on 08.10.2005 accused Kamal was arrested from the bus stop at Firozabad vide arrest memo Ex.PW17/A as the instance of accused Suresh .
PW33 Ct. Vikul Kumar deposed that he made call to the police on 100 number about the lying of injured at foot path in front of Orchid Hospital.
PW34 SI Mahesh Kumar prepared the scaled site plan Ex.PW34/A. PW35 Naveen Kumar informed to the police on 100 STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 12 OF PAGE 29 13 number about the lying of one person in injured condition.
PW36 SI Satish Kumar stated that he participated in the investigation with the IO at the time of conducting of TIP of accused Mahesh.
PW37 Inspector Ajit Singh, arrested accused Mahesh and proved his arrest memo Ex.PW37/A, disclosure statement of accused Mahesh as Ex.PW37/B and he also got conducted the TIP of the accused and filed the supplementary challan regarding the accused Mahesh Chand Gupta.
PW38 Satish Kumar,then Ld. MM conducted the TIP of the accused Mahesh and proved the TIP proceedings as Ex.PW13/A and statement of witnesses Joginder as Ex.PW38/A and his certificate of correctness of the statement Ex.PW38/B. PW39 Ct. Raghubir Singh is the DD Writer and recorded DD No.40A Ex.PW39/A. PW40 Inspector Pratap Singh is the IO and prepared the supplementary challan qua accused Mahesh.
PW41 Bhupesh Kumar, Ld. MM, who conducted the TIP of accused Mahesh Chand Gupta through witness witness Vijay Kumar and proved the TIP as Ex.PW41/B and also proved the STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 13 OF PAGE 29 14 certificate of correctness as Ex.PW41/C. PW42 Sanjeev Lakra, alternate Nodal Officer, Reliance Communication Limited, and proved customer application form of Phone number 32014740 as Ex.PW42/A and PAN Card and Election I Card of the subscribed of the above said phone and proved as Ex.PW42/B and Ex.PW42/C and CDR of the said phone as Ex.PW42/D and also proved the certificate u/s. 65B as Ex.PW42/E. PW43 Rajender Kumar Gupta is the owner of bus number DL1PB5668 and had stated that he gave the said bus on contract to one Pappu and took the same on supurdginama Ex.PW43/A. PW44 ASI Raj Kumar stated that he arrested the accused Mahesh Chand Gupta and informed to the PS Janakpuri vide DD No.40A and proved the same as Ex.PW44/A. PW45 Ms. Anita Chari, Senior Scientific Officer Biology, FSL, Rohini, Delhi and she proved the Biological Report Ex.PW45/A and Serological Report as Ex.PW45/B. PW46 Inspector Babu Lal is also one of the IO of this case.
PW47 Inspector Vijay Pal Singh (the then SI) had STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 14 OF PAGE 29 15 participated in the investigations of this case with the IO Inspector Babu Lal.
5. Besides this prosecution has proved documents i.e. DD No.54B as Ex.PW19/A, copy of FIR Ex.PW2/A, application for TIP for the TIP as Ex.PW47/C, another application for TIP of accused Ex.PW47/B, TIP conducted of accused Kamal as EPW3/A, site plan of the spot Ex.PW46/C, Site plan of recovery of knife as EPW46/J1, sketch of knife as Ex.PW46/J, Mobile Crime Report as Ex.PW9/B, Ex.PW9/A, pointing out statement of recovery memo of blood stained knife as Ex.PW46/C, Personal search of dead body as Ex.PW46/A, seizure memo of blood stained bus gate particulars Iron gate as Ex.PW8/A, seizure memo of blood sample, blood stained earth and earth control as Ex.PW46/D, seizure memo of Bus number DL1PB5668 as Ex.PW13/A, seizure memo of personal search articles Ex.PW15/A, seizure memo of register Ex.PW24/D, copy of RC as Ex.PW24/C, copy of SPA Ex.W24/B, copy of register as Ex.PW24/A1 to A3, seizure memo of permit (photocopy) Ex.PW24/E, Confessional Statement of accused Lekh Raj as Ex.PW46/H, Confessional statement of accused Suresh Kumar as Mark PW7/F, Confessional statement of accused Wali Mohd. @ Jameel as Mark STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 15 OF PAGE 29 16 PW7/G, confessional statement of accused Kamal as Mark PW17/C, pointing out memo of spot as Ex.PW29/A, pointing out memo of spot as Ex.PW32/E, pointing out memo of spot Ex.PW32/F, pointing out memo Ex.PW17/D, pointing out memo as Ex.PW32/G, pointing out memo Ex.PW32/G2, pointing out memo Ex.PW32/G3, pointing out memo Ex.PW32/H, pointing out memo by accused Lekh Raj to the house of Raju as Ex.PW32/G4, memo of identification Ex.PW17/E, Memo of identification Ex.PW46/P, Brief Facts Ex.PW46/L, application for conducting postmortem examination of the dead body as Ex.PW46/M, MLC issued by Orchid Hospital as Ex.PW6/A, an application for preserving the dead body as Ex.PW46/E, Inquest report Ex.PW46/N, dead body identification statement of witness Raj Kumar as Ex.PW21/A and that of witness Kant Kishore Guliyani as Ex.PW22/A, DD No.27A regarding information from PCR about the stabbing the deceased as Ex.PW20/A, DD No.28A regarding departure entry of Inspector Babu Lal as Ex.PW27/A, Postmortem Report of deceased as Ex.PW1/A, subsequent opinion of weapon as Ex.PW1/B, handing over the dead body as Ex.PW46/O, Arrest memo of accused persons Lekh Raj as Ex.PW46/F, that of accused Kamal as Ex.PW17/A, that of accused Suresh Kumar as STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 16 OF PAGE 29 17 Ex.PW32/C, that of accused Wali Mohd. As Ex.PW32/A, personal search memo of accused Lekh Raj as Ex.PW46/G, personal search memo of accused Wali Mohd. As PW32/B, that of accused Suresh Kumar as Ex.pW32/D, that of accused Kamal as Ex.PW17/B, Scaled site plan as Ex.PW34/A, Photographs of the bus and spot as Ex.PW10/1 to Ex.PW10/20, statement of Vikul Kumar as Ex.PW33/D, statement of ASI Kaptan Singh as Ex.PW20/DA, Superdarinama of bus number DL1PB5668 as Ex.PW43/A, DD No. 40A regarding production of accused in case FIR No.580/05, u/s. 302/34 IPC, Arrest memo of accused Mahesh Chand Gupta Ex.PW37/A, Confessional statement of accused Ex.PW37/B, seizure memo of mobile phone from accused Mahesh Chand Ex.PW37/A,
6. Statement of all the accused persons u/s. 313 Cr.P.C.
were recorded in which all the incriminating evidence put to them and they denied the same.
7. I have heard arguments from Shri Ashok Taneja and Shri Chander Mohan Sanan, ld. Counsels for all the accused persons and also from Shri Anil Kumar Gupta, ld. Addl. PP for the State.
8. The accused persons have been charged for the offence STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 17 OF PAGE 29 18 under Section 396 IPC, which is reproduced as below: Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1[imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
9. Death of the deceased is homicidal is an undisputed fact. Even, otherwise from the postmortem report and from the testimonies of PW1, PW4 Dr. K. Goel and PW5 Dr. Akash Jhanjhee, who conducted the postmortem examination of the deceased and prepared the PM Report Ex.PW1/A, it is proved that deceased had died due to hemorrhage and shock consequent upon stab injuries. Further, from the perusal of the PM Report it is evident that deceased had received stab injuries which are given as under:
1. Stab wound 2.4cmX1.2cm obliquely placed on anterior medial aspect of left thigh 23cm below left mid inguinal point with upper angle acutely cut and lower angle rounded with bruising. Margins clean cut everted with blood oozing out on pressing the edges. On exploring the injury, it was found to have penetrated through the skin, sub cutaneous tissues cutting muscles STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 18 OF PAGE 29 19 underneath extending upward and inward and medially up to a depth of 8cm from surface and found to have divided cleanly femoral vessels and nerves with extravasation of blood and clots in the adjacent surrounding tissues.
2. Two grazed abrasions 1X.6cm and 1cmX .
7cm on back of left hand, over knuckle of ring finger and lower part of left little finger reddish in colour. No other external injury seen on the dead body. No injection prick mark or needle prick marks were seen on the body especially on the chest region. No defrivillapor marks on the chest. Hence, the only question remains left to be answered is whether accused persons have committed murder of deceased.
10. The case of the prosecution is that on 23.09.2005 the deceased Kanti Lal Guliyani was traveling in bus number DL1PP5668, when accused persons , who were pick pocketer tried to pick pocket of deceased Kanti Lal Guliyani and when he objected then he was stabbed by them and they thrown the injured out of the bus and due to which he received injuries and due to said injuries he had expired later on.
11. The star witness of the prosecution is PW13 Joginder who is the only eyewitness of the incident. PW13 in his testimony STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 19 OF PAGE 29 20 had deposed in the year 2005, he was working as helper in Bus Number DL1PB5668 and he was issuing the tickets to the passengers in the aforesaid bus and at 8.15pm when the bus reached at Tilak Nagar, he picked up some passengers and started further and then bus reached at Dabri Crossing via Hari Nagar, there was some commotion in the bus, since there was green signal, the bus proceeded ahead, when the bus reached at bus stop Dabri, passengers were picked up from there and bus started to its route ahead, he could not know as to who raised hue and cry in the bus and what led to the commotion inside the bus. He could not see anyone raising hue and cry inside the bus. In his presence no occurrence took place. He further deposed that on the next day bus was stopped by police and police inquired from him and driver Satish. After 5/6 days thereafter, police took him to Tihar Jail thereafter, he was again made to sit in the PS for about 24 hours. He was tortured by the police in the PS, on the ground as to why he was not naming the person who had stabbed, but he did not know as to who had stabbed whom. His brother came to the police station and that is how he made free. He further stated that he made to sign on five/six papers, but he was not apprised of the contents thereof. STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 20 OF PAGE 29 21
12. He was declared hostile by the ld. Addl. PP for the State and was cross examined at length. He admitted the suggestion as correct that on 23/09/2005 at about 8.25 p.m. while he was issuing tickets in his seat near the rear entrance on the bus Vijay conductor was issued the tickets while present near the front entrance of the bus. However, he denied the suggestion that one of the passenger was present near his seat and was yet to collect ticket from him and he had asked him to go ahead and said passenger was having a bag and he did not move from there. Further he denied the suggestion that said person raised alarm "pickpocketer - pickpocketer" and said person caught hold one person present in the bus and two persons got hold of the said passenger carrying the bag. He further denied the suggestion that he saw a person having curly hairs and dark complexion stabbed in the thigh of the passenger carrying the bag. He further denied the suggestion that said passenger was then pushed from the bus when the bus reached at Dabri crossing. He also denied that said passenger then dragged the injured passenger towards road side and then fled away. He further denied the suggestion that blood fell on the floor of bus. He was again recalled for cross examination by Ld.APP on STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 21 OF PAGE 29 22 21.2.2008, he stated that in the month of August 2006 he was taken to Tihar jail in connection with TIP. He could not identify anyone as he did not know the accused. On his way back to PS no one talked to him telephonically. He was detained at the PS but nothing was recovered from him. He denied the suggestion that on that day son of Mahesh Chand handed over to him a mobile phone or reassure him of payment of money in case he did their work. He also denied the suggestion that at the gate of Tihar Jail he received 34 calls on the mobile phone given to him and son of accused Mahesh Kumar enquired from him as to whether he has done the work. He denied the suggestion that he intentionally did not identified the accused Mahesh in TIP.
Thus despite cross examination at length, nothing has come out in his cross examination which could prove that accused persons have stabbed the deceased while committing robbery. Though, ld. Addl. PP for the State has argued that this witness has been won over by the accused persons, which is evident from the fact that when he was coming out from the Tihar Jail after taking participation in the TIP of accused Mahesh Chand Gupta, he received telephone call and he said to the person on the other side STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 22 OF PAGE 29 23 that, he had not identified the accused Mahesh Chand Gupta. Therefore, in these circumstances, his testimony should not be believed. Even for the sake of argument ,if, I accept the contention of the ld. Addl. PP for the State that witness has been won over by the accused persons and reject his testimony. I cannot accept his statement recorded u/s. 161 Cr.P.C. The prosecution has to prove its case through other evidence.
13. Another important public witness is PW7 Vijay Kumar, the conductor of the bus, in which alleged incident had happened. In his testimony recorded in the court the witness Vijay Kumar had deposed that for the last about 24 years, he was serving as a conductor in bus bearing registration No.DL1PB5668 of Route No. 801 plying in between Karampura Terminal to IGI Airport and about 2 ½ years back, he does not remember the date, month and year, at about 8.40pm his bus reached in the area of Hari Nagar about fifteen passengers boarded in our bus and when bus crossed the traffic light junction of Dabri, the passengers raised hue and cry stating that someone had been stabbed. The passengers alighted from the bus. He did not see any incident of stabbing. He did not make any statement before the police.
STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 23 OF PAGE 29 24 He was also declared hostile by the ld. Addl. PP for the State and was cross examined in his cross examination he denied that he told before the police that Bholu told him that pickpocketeer had stabbed someone in their bus. But he admitted the suggestion that later on he came to know that the boy who had stabbed had expired. He denied the suggestion that he had stated to the police that he saw accused persons alighted from the rear door of the bus and gone to the bus stop of bus route no. 753 at Pankha Road. He also denied the suggestion that he could identify those persons. He also denied the suggestion that he stated before the police that pickpocketeer had stabbed a boy in their bus. He further denied the suggestion that, police obtained his signatures on blank papers. He stated that on 25.09.2005, he was taken by police by force. He further denied the suggestion that police took him Karala, Uttam Nagar and Hari Nagar Sauchalaya, Dabri Road. Further he admitted the suggestion that on that day he was taken alone by the police in search of pickpocketeer. He further denied the suggestion that when they reached at sector6/7 Dwarka on seeing accused Lekhu, he identified him and thereafter, police apprehended him. He further stated that only Lekhu was brought by the police there at Gurgaon STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 24 OF PAGE 29 25 and he was forced by police to identify Lekhu as one of the pickpocketeer. He also denied the suggestion that Lekhu made any disclosure statement before the police in his presence admitted his involvement stabbing a boy in his bus on 23.09.2005 near the Dabri Red Light Crossing. He denied the suggestion that, he attested the arrest memo of accused Lekh Raj. He further stated that police obtained his signatures on blank paper and admitted his signatures on arrest memo. He further stated that on 01.10.2005, he accompanied the police and Lekhu in connection with the search of other accused persons and accused Lekhu took them to village Palam. He also denied the suggestion that Lekhu took them to the house number WZ588 in village Palam and stated that the room belonged to Raju. He also denied the suggestion that thereafter accused Lekhu took to the house of Mahesh at RZA1/181, Vijay Enclave, Dabri Road. He also denied the suggestion that thereafter accused Lekhu took them to E436, Street No.77, Mahavir Enclave, PartIII, Delhi and accused Lekhu took them towards the house of Ikbal. He also denied the suggestion that he took them towards H.No.557, Mahavir Enclave, PartIII, Delhi to the house of Kamal and pointed out at his house. He further denied the suggestion that STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 25 OF PAGE 29 26 thereafter accused Lekhu took them to Power House, Sector2, and pointed out towards two boys namely Suresh and Jamil were coming out from the side of Mahavir Enclave. He further denied the suggestion that he identified accused persons Suresh and Jamil, who were accompanied accused Lekhraj on 23.09.2005 at the time of stabbing a boy. He admitted that pointing out memo of accused Suresh and Jamil bears his signatures. He also denied the suggestion that accused persons Suresh and Jamil were apprehended before him and police inquired from them and they made their confessional statement Ex.PW7/F and Ex.PW7/G and they were arrested vide memo Mark PW7/H and Mark PW7/I and their personal search were taken vide memo Ex.PW7/J and Ex.PW7/K. Further he admitted his signatures on the aforesaid memos, but stated that these signatures were obtained on blank papers. He further denied the suggestion that he has not intentionally support the case of the prosecution or that all the accused persons were traveling in his bus on 23.09.2005 and stabbed a passenger.
14. Thus despite cross examination at length by ld. Addl. PP for the State he stick to his stand that he did not saw the accused STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 26 OF PAGE 29 27 persons on the day of incident coming out of his bus. Though, from his overall testimony it is evident that the accident has occurred in his bus bearing number DL1PB5668, as he had stated in his cross examination that Bholu told him on that day when bus crossed the Dabri crossing that a boy had been stabbed by pickpocketers. Which is also proved from the FSL report EX PW45/B where in it is mentioned that Human blood 'O' group was found on the plates which was removed by PW8 and PW12 from bus. From FSL report, it is also evident that blood group of deceased was of 'O' group.
PW7 himself is not an eye witness of the stabbing incident.As per prosecution case he only saw the accused persons going away from the bus after incident has happened. But PW7 denied that on the day of incident he saw accused Lekhraj, Iqbal, Suresh, Mahesh Raju Kamal and Jamil alighted from the bus.
15. The conduct of the PW7 and PW30 that despite the fact that in their bus stabbing incident had happened, they did not get the bus stopped, indicates that they themselves could be involved with the pickpocketeer who stabbed the deceased Kanti Lal or they could very well knew new the culprit who stabbed the deceased. Even if they had supported the case of prosecution their testimonies would STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 27 OF PAGE 29 28 have required close scrutiny as they could take name of some other person to save real culprits, but here situation is altogether different. Both PW13 and PW7 have not supported the prosecution case. No presumption can be raised that since PW7 and PW13 had turned hostile therefore, accused persons have done the act of stabbing the deceased Kanti Lal. Prosecution has to prove the said fact beyond reasonable doubt.
16. As state above, the rest of the witnesses are only formal in nature, who are either the witnesses of information of lying injured on the road at Dabri More or the witnesses who have participated in the investigation, but they are not the eyewitnesses. Hence, their testimonies are immaterial as PW7 and PW13 turned hostile.
17. In view of the aforesaid facts and circumstances, in my view, it would be futile exercise to discuss their testimonies. Hence, considering these facts and circumstances, I held that, prosecution has miserably failed to prove that accused persons Lekh Raj @ Lekhu, Suresh Kumar, Jameel @ Wali, Kamal and Mahesh Gupta @ Guptaji were traveling in the Bus bearing registration Number DL1PB5668 on 23.09.2005 and they have stabbed the deceased Kanti Lal Guliyani which lead to his death.
STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 28 OF PAGE 29 29
18. Hence, all the accused persons stand acquitted from charge for offence u/s. 396 IPC. Their bail bonds are cancelled and sureties are discharged. The articles, if any, seized in the personal search of the accused persons be released to them. Original documents, if any, be released and endorsement, if any be cancelled. Case property, if any, is confiscated to the State. However, accused persons are directed to furnish personal bond in the sum of Rs.10,000/ each with one surety of like amount each in compliance of provisions of Section 437A Cr.P.C. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (SANJEEV KUMAR) ON 31.05.2013 ASJ01(NORTH):ROHINI COURTS: DELHI. STATE VS LEKH RAJ & ORS FIR NO.558/05//SC NO.119/11//U/S. 302/394/511/34 IPC PAGE 29 OF PAGE 29