Delhi District Court
State vs . on 31 March, 2011
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 81/09
Unique Case ID No. 02402R0117152009
State Vs.
1. Vinod Kumar S/o Sh. Bishamber, R/o E116, Gali No.10, Ambedkar Vihar,
Johripuri, Delhi.
2. Gagan S/o Sh. Ratan Lal, R/o B488, Gokalpuri, Delhi.
FIR No. 405/08
PS Gokalpuri
U/s 302/394/397/34 IPC.
Date of Institution : 16.04.2009
Date of reserving the Judgement :11.03.2011
Date of Pronouncement : 29.03.2011
J U D G E M E N T :
1. Prosecution's case emanates from the fact that on 22.12.08 at about 12.15am (in the night), Vinay Kumar was going back to his house on his motorcycle. When he reached at Main Road, Wazirabad Ganda Nala, Gokalpuri flyover, he saw that three or four boys were wielding knife blows on a person. He stopped his motorcycle and went to save the boy, who was being beaten. Those boys ran away from the spot, on seeing him. However, one boy who was trying to snatch a bag from the injured was apprehended by him and his name was revealed as Vinod Kumar. He informed the police. The injured succumbed to his injuries before reaching of PCR officials. Three or four cyclists also gathered at the spot and they witnessed the incident. PCR van reached at the spot. Accused Vinod was handed over to the PCR officials. Statement of Vinay was S.C. No. 81/09 Page 1/46 2 recorded, which became bedrock of the case. Investigation was taken up by V.S. Malik, Inspector. During the course of investigation, accused Gagan was also arrested in the case on 15.01.09. However, accused Bhim could not be arrested in the case. Investigation culminated into a charge sheet against accused Vinod Kumar and Gagan.
2. Charge for offences punishable under sections 397 and 411 IPC was framed against accused Gagan, besides a separate charge for offences punishable under sections 302, 392 and 394 read with section 34 IPC was framed against accused Vinod Kumar and Gagan, to which charges accused persons pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Madhav Raj (PW1), Barkaou (PW2), Vinay Kumar (PW3), Constable Neeraj Kumar (PW4), Constable Jaivir Singh (PW5), Constable Satya Narayan (PW6), HC Yoginder Singh (PW7), HC Jaivir Singh (PW8), HC Vikram Singh (PW9), ASI Subhash Chand (PW10), SI Om Pal Singh (PW11), SI Mukesh Jain, Draughtsman (PW12), Constable Rajesh (PW13), HC Ajesh (PW14), Sanjay Khanagwal, ld. MM (PW15), Lalit Kumar, ld. MM (PW16), Dr. Atul Gupta (PW17), Dr. Dhruv Sharma (PW18), HC Krishan Lal (PW19), Inspector Rajesh Dogra (PW20), Constable Anupriya (PW21), Raghubir (PW22), ASI Hari Ram (PW23), Inspector Mahender Singh Malik (PW24) and Inspector V.S. Malik (PW25) in the case.
Madhav Raj (PW1) and Bardkaou (PW2) are brothers of deceased Chutkou. They identified his dead body vide their respective statements Ex.PW1/A and Ex.PW2/A respectively. Dead body of Chutkou was handed over to them vide handing over memo Ex.PW1/B and Ex.PW2/B respectively.
S.C. No. 81/09 Page 2/46
3 Vinay Kumar (PW3) is the star witness of prosecution. He is the author of FIR.
Constable Neeraj Kumar (PW4) took photographs of the spot from different angles. He proved photographs and their negatives as Ex.P1 to P36.
Constable Jaivir Singh (PW5) deliver copies of FIR to Sh. Lokesh Kumar, ld. MM, Sh. Dharmender Kumar, Joint C.P., and DCP at their respective place of residence.
Constable Satya Narayan (PW6) took tehrir to get the case registered. He detailed those very investigative steps, which took place in his presence.
HC Yoginder Singh (PW7) joined investigation of the case on 15.01.09. He unfolded facts pertaining to arrest of accused Gagan, besides recording of his disclosure statement and his medical examination at GTB Hospital.
HC Jaivir Singh (PW8) recorded DD No.30A and proved copy of the same as Ex.PW8/A. He also recorded FIR and proved copy of it as Ex.PW8/B. HC Vikram Singh (PW9) recorded entries in store room register regarding various parcels deposited with him on various dates. He also got sent those parcels to FSL Rohini vide RC No. 166/21 through Constable Rajender.
ASI Subhash Chand (PW10) went to GTB Hospital, where doctor gave him one opinion and two sealed parcels and two sample seals of SR. He gave opinion report to SHO and deposited the parcels in Malkhana.
SI Om Pal Singh (PW11) deposited two sealed parcels with Record S.C. No. 81/09 Page 3/46 4 Clerk, vide RC No. 161/21 as he had to obtain opinion from the doctor at GTB Hospital.
SI Mukesh Jain (PW12) prepared scaled site plan and proved it as Ex.PW12/A. Constable Rajesh (PW13) deposited 10 sealed parcels at FSL, Rohini, vide RC No. 166/21.
HC Ajesh (PW14) unfolded all the facts pertaining to arrest of accused. He detailed those very investigative steps, which took place in his presence.
Sanjay Khanagwal, ld. Metropolitan Magistrate (PW15) conducted Test Identification Parade (TIP) of the case property. He proved TIP proceedings as Ex.PW15/A. Lalit Kumar, ld. Metropolitan Magistrate (PW16) conducted TIP of accused Gagan. He made the accused to understand meaning of TIP. However, accused refused to participate in TIP. Thereafter, he recorded statement TIP for refusal. He proved TIP proceedings so conducted as Ex.PW16/A. Dr. Atul Gupta (PW17) conducted autopsy on the dead body of Chutkan @ Nanku. He proved his report to this effect as Ex.PW17/A. He also proved sketch of knife as Ex.PW17/B and his subsequent opinion on the same as Ex.PW17/C. Dr. Dhruv Sharma, Sr. Scientific Officer (PW18) examined exhibits of the case and proved his report to this effect as Ex.PW18/A. He also proved serological report of exhibits as Ex.PW18/B. HC Krishan Lal (PW19) joined investigation of the case on 30.01.09 along with Inspector V.S. Malik and HC Ajesh. He unfolded all the facts S.C. No. 81/09 Page 4/46 5 pertaining to articles recovered at the instance of accused Gagan.
Inspector Rajesh Dogra (PW20) was working as incharge crime team, NorthEast District, on 22.12.08. He inspected the spot and prepared scene of crime visitation report and proved the same as Ex.PW20/A. Constable Anupriya (PW21) filled up form No. 109 in respect of a call received by him. He proved computer generated record of the same as Ex.PW21/A. Raghubir (PW22) simply deposed that he did not know anything about the instant case. He also deposed that he had not witnessed the incident and had neither seen nor known the accused persons as such he was cross examined by ld. Public prosecutor.
ASI Hari Ram (PW23) was on emergency duty on 22.12.08 from 8am to 8pm. On receipt of DD No.30A, regarding one person lying in an injured condition near Ganda Nalla, Gokalpuri, he alongwith Const. Satya Narain went to Ganda Nalla, Gokal Puri flyover where he found one person lying dead. Insp. V.S.Malik alongwith staff also reached the spot. He is a witness to the seizure of the bag belonging to the deceased containing diary, note book, register, Icard, Rs.3800/ and one mobile phone which were seized vide memo Ex.PW3/C. One plastic chappal lying at the spot was also seized in his presence vide memo Ex.PW3/D. He is also a witness to the arrest of accused Vinod. Blood samples lying at the spot were also sealed in his presence and were taken into possession vide memo Ex.PW23/B, PW23/C and PW23/D. Inspector Mahender Singh Malik (PW24) received investigation of the case on transfer from V.S. Malik, Inspector on 27.2.09. He got S.C. No. 81/09 Page 5/46 6 subsequent opinion from the Doctor and also got test identification parade of wrist watch conducted.
Inspector V.S. Malik (PW25) conducted investigation of the case. He unfolded that on intervening night of 21/22122008 at about 12.25am, DD No.30A, Ex.PW30/A was received in the PS and same was marked to ASI Hari Ram. After that vide DD No.32A Ex.PW25/A, he along with HC Jitender, Driver and ASI Khajan Singh, HC Rohtash and Constable Virender left for the spot. On reaching there, dead body of a male, aged about 3032 years, was found lying there. The deceased was wearing cream colour pant and check shirt and coca colour pullover and chappals were lying near the dead body. Eyewitness Vinay Kumar met them there, who produced accused Vinod Kumar. Vinay Kumar told him that he had witnessed the incident and he apprehended the accused at about 12.15am and three persons ran away from the spot and they were trying to snatch articles from deceased. Vinay Kumar also told him that accused persons had stabbed the deceased by knife. He (witness) recorded statement of Vinay Kumar Ex.PW3/A and prepared rukka for getting the case registered. He also called the crime team. Photographs Ex.P1 to P18 were taken by Constable Neeraj. SI Rajesh Dogra also inspected the spot and gave his report Ex.PW20A. He (witness) recorded statement of SI Rajesh Dogra and Constable Neeraj. He prepared site plan Ex.PW25/C at the instance of eyewitness Vinay Kumar. In the meanwhile Constable Satya Narayan came at the spot with copy of FIR Ex.PW8/A and original rukka and same were handed over to him.
The bag of deceased containing the articles therein was seized vide seizure memo Ex.PW3/B. He also seized the chappal of the deceased S.C. No. 81/09 Page 6/46 7 lying at the spot vide memo Ex.PW3/C. Blood lying at the spot, blood stained earth control, normal earth control were seized vide memo Ex.PW23/B, PW23/C and PW23/D. He arrested accused Vinod Kumar vide arrest memo Ex.PW3/B, conducted his personal search memo Ex.PW3/E. He also recorded his disclosure statement Ex.PW23/A. On 23.12.2008, he prepared inquest papers Ex.PW25/B and got conducted post mortem of the body of deceased. Thereafter the dead body was handed over to the family members of the deceased. He collected post mortem report Ex.PW17/A. On 15.1.2009 accused Gagan was arrested vide memo Ex.PW14/A and his personal search was conducted vide memo Ex.PW14/B. He made a disclosure statement Ex.PW7/A. At the instance of accused Gagan pointing out memo Ex.PW7/B was prepared. On the same day, Accused Gagan got his Tshirt having blood stains recovered which was taken into possession vide memo Ex.PW7/C. He moved an application for holding test identification proceedings of accused Gagan. On 22.1.2009 accused Gagan refused to join TIP proceedings at Tihar Jail. He searched for other accused but they could not be traced.
On 29.1.2009 police remand of accused Gagan was obtained for one day. Thereafter, on 30.1.2009 accused Gagan got recovered one knife and wrist watch belonging to the deceased. Same were seized vide memo Ex.PW14/B. He deposited the case property in malkhana. Thereafter he was transferred from PS Gokal Puri and he handed over the file to MHCR.
S.C. No. 81/09 Page 7/46
8
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had denied all the allegations levelled against them. Their case has been of denial simpliciter. They claimed themselves to be innocent. However, accused Gagan projected that he was lifted from his house and was implicated in the case. No recovery was effected from his possession or at his instance at any point of time. He did not make any disclosure statement. His signatures were forcibly obtained on blank papers by the police. He pleads that he is man of clean antecedents and he has no criminal history behind him. Moreover, his photographs were taken by police and same were shown to the witnesses. Both the accused persons have examined Ratan Lal (DW1), Suresh Kumar (DW2) and Nanak Chand (DW3) in support of their defence.
DW 1 Ratan Lal is father of accused Gagan. He has testified that on 8.1.2009 at about 4.00 p.m. police official namely HC Yogender came to his house and took his son Gagan with them saying that his son was called by the SHO. Till evening, Gagan did not return. Consequently, he alongwith his friend Suresh Kumar went to PS Gokal Puri and asked about his son. Police officials told him that his son would be set free as soon as SHO comes. On the next morning, he again went to the PS but nobody met him there. In the evening, he again went to the PS at about 7.30/8.00p.m. HC Yogender met him there and he told that they would set free his son after interrogation but he was not set free for about one week and thereafter he came to know that he was falsely implicated in this case. DW 2 Suresh Kumar, who is friend of father of accused Gagan, has also S.C. No. 81/09 Page 8/46 9 deposed to the same effect.
DW 3 Nanak Chand testified that on 22.12.2008 he was present at his house and on hearing a noise, he came outside his house and saw that 34 police officials were present in front of house of Bishambar (father of accused Vinod Kumar). On inquiry, he was told that Vinod was called by the SHO for the purpose of interrogation and after interrogation he would be set free. Later on, he came to know that accused Vinod was falsely implicated in this case.
5. I have heard Sh. Ravinder Khandelwal, ld. Addl.Public Prosecutor for the State, Shri K.P. Singh Counsel for accused Vinod Kumar and Sh. Vijay Dalal Advocate duly assisted by Sh. Ajay Solanki, Advocate, for accused Gagan and have carefully perused the record.
6. It was submitted by Shri K.P.Singh, Advocate for accused Vinod Kumar that most material witness is PW3 Vinay Kumar who in his initial statement alleged to have stated that he had apprehended accused Vinod at the spot while he was snatching bag of the deceased. However, when this witness appeared in the witness box, at that time he did not support the case of prosecution and did not depose anything against accused Vinod. He denied having apprehended accused Vinod at the spot. Moreover, if this accused was apprehended at the spot, then when photographs of the scene of occurrence were taken, he should have been shown in those photographs but he was nowhere to be seen. Moreover, it is the case of prosecution that there was blood all over the clothes of the deceased and if accused Vinod had snatched the bag of the deceased, blood should have come on his clothes and hands but that is not the case of the prosecution. Further more, according to PW Vinay Kumar, he had informed the PCR initially, who had come to the spot but no such PCR official has been examined by the prosecution. Moreover, PW 9 HC Vikram Singh has deposed S.C. No. 81/09 Page 9/46 10 that pullandas were deposited by Insp. M.S.Malik however, Insp. M.S. Malik came into the picture after three months of the incident and he did not seize any of the parcel and therefore, there was no occasion for him to deposit the parcel with MHCM as such possibility of tampering with the case property cannot be ruled out. It was submitted that no incriminating evidence has come on record against this accused, as such he is entitled to be acquitted.
7. Ld. Counsel for accused Gagan submitted that initial call made to the police was regarding the accident and name of informer was given as Vijay Kumar and not Vinay Kumar. According to Vinay Kumar (PW3) no proceedings took place in his presence. Since he was getting late he was allowed to go and thereafter he went to PS next date where his signatures were obtained on some blank papers. Further more, he admitted that he did not give description of 34 boys who were stabbing the deceased. As such testimony of this witness, who is only a chance witness, cannot be believed. Moreover, he was secret informer of the police. PW7, PW14, PW25 and PW22 are alleged to be eyewitnesses to the arrest of accused Gagan and as per case of the prosecution, this accused was apprehended on the pointing out of PW Raghubir. However, this witness has not supported the case of prosecution at all. As regards testimony of police officials, it was submitted that the same suffers from discrepancies in as much as in examination in chief, PW14 does not speak about the presence of PW7 when they left the police station and arrested accused Gagan. Moreover, discrepancies have also come in their testimony regarding the description of the house of accused Gagan and the persons who met them over there. As such no reliance can be placed on the same. Moreover, according to PW17, there was no blood in the knife. However, as per FSL report, human blood was detected on the knife as such possibility of blood putting on knife later on cannot be ruled out. Moreover, S.C. No. 81/09 Page 10/46 11 at the time of recovery, neither any witness was joined nor any local police of P.S.Loni was joined. Although it is alleged by the prosecution that the bag belonging to the deceased was tried to be snatched by accused Vinod. However, as per SOS report, no property was stolen. It was further submitted that accused had refused to test identification proceedings because he was shown to the witnesses in the police station and even his photograph was taken and this fact finds corroboration from the judicial record where photograph of accused has been placed on record. Under the circumstances, it was submitted that prosecution has failed to bring home guilt of the accused and accused is entitled to be acquitted.
8. Rebutting the submissions of ld. Defence counsel, it was submitted by ld. Addl. PP that even if PW3 did not support the prosecution case regarding apprehension of accused Vinod Kumar at the spot, same is of no consequence as he was apprehended at the spot. Moreover, the mere fact that this witness did not fully supported the case of prosecution is no ground to discard his testimony in regard to accused Gagan to whom he has categorically identified as the person who was stabbing the deceased and ran away from the spot. It was submitted that this witness had no animus against the accused to falsely implicate him in this case. In fact, police machinery was set in motion only after the sending of information to PCR by this witness. As such presence of the witness at the spot is duly proved. Further more, this accused had refused to join TIP proceedings and an adverse inference has to be drawn against him for refusal to join TIP proceedings. At his instance, his Tshirt was recovered on which blood stains were found. Subsequently at his instance, knife and watch belonging to deceased were recovered. Human blood was detected on knife and Tshirt. As regards the discrepancies referred by ld. Defence counsel, it was S.C. No. 81/09 Page 11/46 12 submitted that same were trivial in nature and do not go to substratum of the case as such there is no reason to discard the same. It was submitted that prosecution has been able to prove its case beyond shadow of doubt and as such both the accused are entitled to be convicted.
9. I have given by considerable thought to the respective submissions of ld. Counsel for the parties and have carefully perused the record.
10. In order to substantiate its case, prosecution is relying upon the following aspects:
(i) Eyewitness accounts
(ii)Recovery of blood stained cloth of accused Gagan
(iii)Recovery of weapon of offence and wrist watch belonging to deceased.
(iv) Medical Evidence
(v) Scientific Evidence.
(vi) Refusal by accused Gagan to join Test Identification Parade.
I shall take each of them one by one.
Eyewitness Account:
11. PW3 Vinay Kumar is an eyewitness of the incident. Before discussing his testimony, it will be in the fitness of things to reproduce the principal to be followed for evaluating the evidence of eye witness as held by Hon'ble Supreme Court and Hon'ble High Court in number of cases viz. Tehsildar Singh Vs. State of U.P. AIR 1959, S.C. 1012; Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat AIR 1983 SC 753 ; Leela Ram vs. State of Haryana AIR 1997 SC 3717 and Gore Lal vs. State 2010 III AD (Delhi) 34.
I. While appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to S.C. No. 81/09 Page 12/46 13 scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless thee are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matte would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is S.C. No. 81/09 Page 13/46 14 replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimate in such matters. Again, it depends on the time sense of individuals which varies from person to person. XI.Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to et confused, or mixed up when interrogated later on. XII.A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of evens, or fill up details from imagination on the spur of he moment. The subconscious mind of he witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of S.C. No. 81/09 Page 14/46 15 the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
12. This being the legal proposition, let us turn to the case in hand. PW3 Vinay Kumar is the person who set the police machinery in motion. This witness came to depose on 24.7.2009. He has unfolded that during winter season of last year, he was coming from LNJP Hospital on his motor cycle. When he reached near Ganda Nala, Gokul Puri, at about 12.00 or 12:30 a.m. he saw 34 persons stabbing one person. He stopped his motorcycle and saw those persons through the headlight of his motorcycle and when the headlight of his motorcycle fell on those boys, they ran away towards Ganda Nala. He made a call to the PCR. PCR van came at the spot. At that time, the injured was alive and he was taking breaths. He remained there and in the meanwhile police officials from the local police station reached at the spot. Since he was getting late, he left the spot after taking permission from the police officials. On the next morning, he went to PS Gokul Puri and his signatures were obtained on some blank papers He had seen the accused persons at the spot who were stabbing that person. He identified accused Gagan as the person who was stabbing and ran away from the spot. However, he could not identify the other accused as such he was cross examined by ld.Public Prosecutor and in cross examination, he denied having made statement Ex.PW3/A to the police or that he stated in that statement that one of the accused whose name was later on revealed as Vinod, who was taking the bag from injured was apprehended by him. He further denied that he himself S.C. No. 81/09 Page 15/46 16 produced accused Vinod before the police officials. He admitted that one pair plastic chappals were lying near the spot. Some blood was also lying near the spot and one bag was lying near the injured. However, he could not say what were the articles in the bag. He denied that accused was arrested by the police officials in his presence vide arrest memo Ex.PW3/D or his personal search was taken vide memo Ex.PW3/E. He also denied that on 29.1.2009 when he was going on his motorcycle for taking the payment and at that time, he saw that police officials were present near the Jipsy along with one person and he identified that person as one of the accused namely Gagan.
13. ASI Hari Ram PW23 has deposed that on receipt of DD No.30A regarding one person lying near Ganda Nalla, he alongwith Constable Satya Narain went there and saw one person lying dead on the road near Ganda Nalla, Gokulpuri Flyover. Body was smeared with blood. Inspector V.S.Malik alongwith staff also reached there. One person Vinay Kumar met them at the spot and he produced one person namely Vinod Kumar and stated that this person was snatching the cloth bag of the deceased. Accused Vinod was arrested by the investigating officer vide arrest memo Ex.PW3/D and personal search memo Ex.PW3/E.
14. PW25 Inspector V.S.Malik has also deposed to the same effect. He further deposed that eye witness Vinay Kumar produced accused Vinod Kumar by stating that he had witnessed the incident and he had apprehended accused Vinod Kumar while three persons had run away from the spot. Accused Vinod was trying to snatch the bag of the deceased but he apprehended him. He recorded statement of Vinay Ex.PW3/A wherein he stated that at about 12.15 a.m. he was going to his house on his motor cycle while coming from LNJP Hospital at about 12.15 a.m. When he reached main road, Wazirabad, Ganda Nalla, Gokal Puri, he saw 34 boys stabbing one person with knives and chhuri. S.C. No. 81/09 Page 16/46
17 He stopped his motor cycle and tried to rescue that person. On seeing him those persons ran away towards Ganda Nalla alongwith knives and chhuri. The boy who was trying to snatch the bag of the injured, was apprehended by him at the spot. His name was disclosed as Vinod Kumar. He gave intimation at 100 number.
15. Case of accused Vinod in his statement recorded under section 313 Cr.P.C. is one of denial and according to him, he was lifted by PS Gokal Puri on 22.12.2008 at noon time from his house and he was falsely implicated in this case. He has examined DW3 Nanak Chand who has deposed that on 22.12.2008 at about 11.00 a.m. or 12 noon, he was present at his house. He heard a noise and on hearing the noise, he came outside his house and saw that 34 police officials were present at the house of Bishambar. On inquiry, police officials told that Vinod was called by the SHO in the police station and thereafter they took accused Vinod with them. He alongwith father of Vinod went to police station and they were assured that Vinod would be set free after interrogation. Subsequently, he came to know that Vinod has been falsely implicated in this case.
16. The aforesaid evidence led by the prosecution case to show that as regards accused Vinod is concerned, the material witness was PW3 Vinay Kumar who has not supported the case of prosecution and he denied having apprehended accused Vinod Kumar at the spot or that he handed over him to the police. Although according to police officials, Vinod was handed over to them by this witness and thereafter he was arrested from the spot but keeping in view the fact that Vinay Kumar has not supported their version in this regard and except that there is no other incriminating piece of evidence against this accused in as much as Constable Neeraj (PW4) took photographs of the place of occurrence S.C. No. 81/09 Page 17/46 18 and proved the photographs and negatives Ex.P1 to P36. However, in the photographs, accused is not shown. Moreover, if he was trying to snatch the bag lying with the deceased who was smeared with blood then possibility of blood coming on his hand cannot be ruled out but it is not the case of prosecution that there was any blood either on the hands or clothes of this accused. Under the circumstances, in the absence of any incriminating piece of evidence against this accused it will not be safe to convict accused Vinod only on the testimony of police officials that he was handed over by Vinay Kumar at the spot. As such this accused is entitled to benefit of doubt.
17. However, as regards accused Gagan is concerned, things are entirely different in as much as this witness Vinay Kumar has categorically identified him as one of the person who was stabbing the injured and who ran away from the spot. As regards submission of ld. defence counsel that PW3 was a secret informer of the police and a chance witness, this submission is devoid of merits in as much as the witness has denied the suggestion that he was a secret informer of the police and no other evidence has come on record to fortify this submission. As regards this submission that he was a chance witness, that itself is not sufficient to discard his testimony in as much as incident has taken place on a road. That being so, the passersby are natural witnesses. It has come in the testimony of this witness Vinay Kumar that he was coming from LNJP Hospital on his motor cycle and when he reached Gokal Puri, Ganda Nala, at that time, he witnessed the incident. As such his evidence cannot be brushed aside or viewed with suspicion on the ground that he is mere a chance witness. For holding this view, I am fortified by 1983 (2) RCR(Crl.) 532 Rana Partap vs. State of Haryana, and Sachchey Lal Tiwari vs. State of U.P. (2004) 11, SCC 410, where Hon'ble Supreme Court observed as under: S.C. No. 81/09 Page 18/46 19 "Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is most unsuitable expression in a country whose people are less formal and more casual at any rate in the matter of explaining their presence."
18. It was observed that to discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.
19. In 2010 IX AD (S.C.) 305 Myladimmal Surendran & Ors.Vs. State of Kerala also, Hon'ble Supreme Court relied upon the observations made in Sachchey Lal Tiwari (Supra) for observing that these observations are of tremendous relevance given the cultural etho of this country.
20. In view of these authoritative pronouncements, mere fact that witness was passing through the place of incident would not be sufficient to discard his testimony by terming him to be "chance witness."
21. As regards the submission that since this witness Vinay Kumar has not fully supported the case of prosecution as such no reliance can be placed on his testimony, this submission is again devoid of merits. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely S.C. No. 81/09 Page 19/46 20 because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. In State of U.P.Vs. Ramesh Prasad Misra & Anr. , AIR 1996 SC 2766, Hon'ble Supreme Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated in Balu Sonba Shinde Vs. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. Vs. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. Vs. State of U.P., AIR 2006 SC 951; Sarvesh Naraian Shukla Vs. Daroga Singh & Ors. AIR 2008 SC 320; and Subbu Singh vs. State (2009) 6 SCC 462 ; Bhagwan Singh vs. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey Vs. State of Orissa, AIR 1977 SC 170, Syad Akbar vs. State of Karnataka, AIR 1979 SC 1848; Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, AIR 1991 SC 1853 and C. Munniappan & Ors. Vs. State of Tamilnadu 2010 IX AD (S.C.) 317. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
22. In the instant case, testimony of this witness can easily be divided in two parts - one qua accused Vinod and the other qua accused Gagan. So far as accused Vinod is concerned, he has not supported the case of prosecution but as regards accused Gagan, he has identified him as one of the assailants. However, mere fact that on one point, his testimony is not favourable to the case S.C. No. 81/09 Page 20/46 21 of prosecution, same cannot be made a ground to discard his testimony altogether.
23. In Krishna Mochi Vs. State of Bihar, (2002) 6 SCC 8, it was observed that : "Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other coaccused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to the end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. This maxim has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. The doctrine is a dangerous one, specially in India, for it a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some S.C. No. 81/09 Page 21/46 22 aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishment. An attempt has to be made to separate the grain from the chaff, the truth from falsehood".
24. Substantially similar view was taken in Gangadhar Behere Vs. State of Orissa, (2002) 8 SCC 381; (2004) 2 SCC 455 Narain Vs. State of M.P.; Prathap & Anr vs. State of Kerala, 2010 IX AD (S.C.) 118.
25. In view of these authoritative pronouncements, even if PW3 Vinay Kumar did not support the case of prosecution in its entirety, that does not mean that testimony of this witness has to be discarded altogether. As stated above, his testimony can be divided in two parts regarding the role of each of the accused. So far as accused Gagan is concerned, this witness has identified him as one of the assailant who stabbed the deceased. This part of his testimony is separable from the part played by accused Vinod. Therefore, notwithstanding the fact that his testimony has been found to be deficient on the point of guilt of accused Vinod, his statement can be relied upon so far as accused Gagan is concerned. It has come in his statement that he has no enmity with accused Gagan and even Gagan is not the alleging any enmity, ill will or grudge against this witness S.C. No. 81/09 Page 22/46 23 for which reason he would identify him and falsely implicate him in such a serious offence. The rule of prudence simply requires that since this witness has not wholly supported the prosecution case, his testimony is required to be scrutinized with more care and caution and requires corroboration which is available in abundance so far as accused Gagan is concerned.
Medical Evidence :
26. This witness has categorically deposed that he saw 34 persons stabbing one person. When Insp. V.S.Malik alongwith staff reached the spot he found one male person aged 3032 years lying dead. Blood was lying at the spot. The deceased was having four wounds on his waist and three wounds on his stomach. The dead body was sent to mortuary GTB Hospital. He prepared inquest papers and requested the doctor to conduct post mortem examination. Post mortem on the dead body was conducted by Dr. Atul Gupta (PW17) who gave his report Ex.PW17/A. As per the report on post mortem examination, Dr.Gupta found the following external ante mortem injuries.
1. Incised stab wound of size 3.5 x 0.2 cm horizontally placed over right side of chest 8 cm below the axilla and the medial end of the wound was 5 cm right to the right nipple. Medial end of the wound was sharp. The track of the wound was horizontal towards the midline cutting the chest wall, entering in the chest cavity and cutting the lower lobe of right lung. Depth of the wound was 7.5 cm. Corresponding cut marks were present on the shirt and sweater.
2. Incised stab would of size 2.8 x 0.3 cm obliquely placed on left side of lower abdomen. The wound was 10 cm from the midline and 25.8 cm below the left nipple. The direction of the wound was downwards, backwards, cutting the subcutaneous tissues and abdominal muscles. The depth was 2.5 cm. Corresponding cut marks were present on the shirt, sweater and baniyan. S.C. No. 81/09 Page 23/46
24
3. Incised stab wound of size 3.5 x 0.2 cm horizontally placed on right side of upper abdomen. The subcutaneous tissue was coming out of wound. The wound was 29 cm below the axilla and 21 cm right to midline. Medial end of the wound was sharp. The direction of the wound was towards midline, horizontally placed cutting the subcutaneous tissue, muscles, blood vessels and intestine. Total depth of the wound was 11.5 cm. Corresponding cut marks were present on sweater, shirt and baniyan.
4. Incised stab wound of size 3.5 cm x 0.2 cm obliquely placed on right side of abdomen. The lateral end of the wound was sharp. Medial end of the wound was 10 cm from the midline and 22 cm below the right nipple. Direction of the wound was downward, backwards, cutting the abdominal blood vessels and intestine. Depth of the wound was 7.0 cm. Corresponding cut marks were present on sweater, shirt and baniyan.
5. Incised stab wound of size 4.5 x 0.2 cm, horizontally placed on back of left side, 4 cm from midline and 15 cm above the illiac crest. Medial end of the wound was sharp. The direction of the wound was towards midline, cutting the lower lobe of left kidney and blood vessels. Depth of the wound was 7.5 cm. Corresponding cut marks were present on shirt, sweater and baniyan.
6. Incised stab wound of size 4 x 0.2 cm present on back in midline, 17 cm above the natal cleft. The wound was horizontally placed, and the track was downwards, forwards towards the left side. It enters the abdominal cavity and cuts the blood vessels and intestine. Total depth of the wound was 14 cm. Right end of the wound was acute. Corresponding cut marks were present on shirt, sweater and baniyan.
7. Incised stab wound of size 3.5 x 0.2 cm, obliquely placed on back on left side, 32 cm below the injury no.6 and 14 cm above the natal cleft. Right end of the S.C. No. 81/09 Page 24/46 25 wound was acute. The direction of the wound was downwards, forwards towards the left side cutting the blood vessels and intestine. Depth of the wound was 7.5 cm. Corresponding cut marks were present on shirt, sweater and baniyan.
8. Incised stab wound of size 4.5 x 0.2 cm over lower back on right side obliquely placed 8.5 cm right to the midline, 12.5 cm above the right illiac crest. Right end of the wound was acute. Direction of the wound was downwards, forwards towards the midline. The wound ended up cutting the small intestine. Corresponding cut marks were present on the clothes. Depth of the wound was 8 cm.
27. Cause of death was opined to be haemorrhagic shock due to antemortem injury to chest and abdominal organs, blood vessels and intestines. All the injuries were produced by single edge sharp weapon. All the injuries were antemortem in nature. All the injuries except injury no.2 were sufficient to cause death independently and collectively in ordinary course of nature.
28. As such testimony of PW3 Vinay Kumar that he saw three four boys wielding knife blows to one person finds corroboration from medical evidence that injuries were produced by single sharp edged weapon. Needless to say, knife is a sharp edged weapon.
RECOVERY OF BLOOD STAINED CLOTH OF ACCUSED GAGAN :
29. It is the case of prosecution that on 15.1.2009 Insp. V.S.Malik alongwith HC Ajesh (HC 14) and HC Yogender (PW7) were present on main Wazirabad Road, Kapoor Petrol Pump in connection with investigation of this case. At that time, one person namely Raghubir met them and informed them that Gagan was known to him and he was standing near Hanuman Mandir, Loni Gol Chakkar. Accordingly he alongwith police staff and Raghubir went to Hanuman Mandir S.C. No. 81/09 Page 25/46 26 where accused Gagan was apprehended. He was arrested vide memo Exc.PW14/A and his personal search was taken vide memo Ex.PW14/B. Accused made a disclosure statement Ex.PW7/A and at his instance, pointing out memo Ex.PW7/B was prepared. Thereafter accused took them to his house situated at B488, Gokal Puri and he took out one half sleeves black colour T Shirt from the Diwan. Tshirt was having some blood stains on it. The accused told them this was the same Tshirt which was worn by him at the time of incident. Shirt was kept in a pulanda and after sealing the same it was taken into possession vide memo Ex.PW7/C.
30. PW7 HC Yogender Singh and PW14 HC Ajesh gave confirmation to the facts as deposed by PW25, Insp. V.S.Malik regarding arrest of the accused on 15.10.2009. However, PW22 Raghubir has not supported the case of prosecution by deposing that he alongwith one another boy was taken to police station from his milk dairy shop. At the police station, some boys were shown to him. However, he told the police officials that he had not seen any of them and did not witness the occurrence. As such this witness was cross examined by ld. prosecutor . In cross examination, he denied having made any statement mark A before the police. He also denied that on 15.1.2009 at about 9.15 p.m. he met police officials near Wazirabad road near Kapoor Petrol Pump and at that time, accused Gagan was apprehended.
31. Arrest of the accused has been challenged by ld. defence counsel on the ground:
(i) PW Raghubir has not supported the case of prosecution;
(ii) Testimony of police officials suffer from discrepancies and inconsistencies.
32. As regards first limb of the arguments, although it is true that PW2 S.C. No. 81/09 Page 26/46 27 Raghubir has not supported the case of prosecution but that itself is not fatal to the case of prosecution. It is a matter of common experience that in recent times public persons are reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings. Firstly the general public do not want to join the investigation and in case they join the same, then they do not want to come forward to support the case of prosecution.
33. In this regard, observations made by Hon'ble Supreme Court in Krishna Mochi's case (Supra) may be reproduced with advantage.
"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of crossexamination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at the times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days, it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close S.C. No. 81/09 Page 27/46 28 to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. ...Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. .........."
34. In view of these observations of Hon'ble Apex Court mere fact that PW Raghubir has not supported the case of prosecution, that itself is not sufficient to cast dent on prosecution version.
35. As stated above, PW14 HC Ajesh, PW7 HC Yogender Singh and PW25 Insp. V.s.Malik have deposed regarding apprehension of accused gagan on 15.1.2009 and regarding recovery of Tshirt at his instance and on material particulars they have corroborated each other. Despite lengthy cross examination nothing material could be ellicited to discredit their testimony. Moreover, there are catena of decisions to the effect that testimony of police officials should be treated in same manner as the testimony of other witness and the view that their testimony, without corroboration by independent witness, is unworthy of credence, cannot be supported. There is no presumption that police officials are liars. In Aner Raja Khima vs. State of Saurashtra, AIR 1956 SC 217 it was observed that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. The presumption that a person acts honestly applies as such in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect S.C. No. 81/09 Page 28/46 29 them without grounds thereof. Testimony of police officers cannot be brushed aside when there is no proof of illwill, rancour or spite against the accused. Hon'ble High Court in Om Prakash (1982 Cr.L.J. 751) has ruled that when case rests on evidence of police officers, prosecution version cannot be rejected on the ground that no public person was produced as a witness. When evidence of the police officer, who laid the trap, is found entirely trustworthy, there is no need to seek any corroboration. No general rule can be laid down that an evidence of an investigating officer concluding a search cannot be relied unless it is corroborated. The question depends on facts of each case. Substantially, similar view was taken in Hazari Lal (AIR 1980 S.C. 873); Muhim Barkati (AIR 1987 S.C. 98) ; Tahir vs. State, (1996) 3 SCC 338 ; 2006 VII AD(Delhi) 213 Akbar Butt & Ors. (Mohd.) Vs. State ; and Aslam & Ors (Mohd.) vs. State, 2010 III AD (Delhi) 133.
36. In view of these authoritative pronouncements, there is no reason to disbelieve testimony of police officials who have corroborated each other on material aspects. The accused does not claim any enmity or illwill between him and either of the police officials. The testimony of these witnesses could not be assailed during cross examination.
37. Ld. Counsel for the accused tried to challenge the testimony of police officials on the ground that discrepancies have appeared in their testimony regarding the time of the proceedings, description of house of the accused and the person who recorded their statement. However, these discrepancies are minor in nature and do not go to the substratum of the case. As observed by Hon'ble High Court in 2010 III AD (Delhi) 34 Gore Lal vs. State, variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the S.C. No. 81/09 Page 29/46 30 core of their testimony, provided there is the impress of truth and conformity to probability in the substantial fabric of the testimony delivered.
38. Moreover, it was observed in C.Munniappan & Ors. Vs. State of Tamil Nadu 2010 IX AD (S.C.) 317 that it is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witnesses. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statement of witnesses. (vide Sobrab & Anr vs. the State of M.P. AIR 1972 SC 2020; State of U.P.vs. M.K.Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai vs. Stae of Gujarat, AIR 1983 SC 75; State of Rajasthan vs. Om Prakash AIR 2007 SC 2257; Prithu @ Prithi Chand & Anr. vs. State of Himachal Pradesh, (2009) 11 SCC 588; State of U.P. vs. Santosh Kumar & Ors. (2009) 9 SCC 626 and State vs. Saravanan & Anr. AIR 2009 SC 151).
39. Under the circumstances, the mere fact that some discrepancies have appeared in the testimony of police officials regarding timing of the proceedings, description of the house of accused as to whether it was single storyed or double storyed or three storyed or who met the police officials when they went to his house, are not of such a nature that the same is to be discarded on that count. Minor discrepancies are bound to occur in the testimony of witnesses due to lapse of time. The discrepancies do not touch core of the case and same are S.C. No. 81/09 Page 30/46 31 trivial in nature. Moreover, they are not so incompatible which compel the court to draw a conclusion that their version must be disregarded. As such it stands proved that on 15.1.2009 accused Gagan was arrested by the police and he got recovered his Tshirt which he was wearing at the time of incident. RECOVERY OF WEAPON OF OFFENCE :
40. It is further the case of prosecution that after taking police remand of accused Gagan for one day on 29.01.09, on 30.01.09, HC Ajesh and HC Krishan Lal joined investigation of the case with Insp. V.S.Malik. On that day accused took them to Pooja Colony, Khajuri Pusta, Loni and prior to about 132 steps at T point (where Loni Road and Khajuri pusta road meets) and 4 steps on the slop of the pusta from bushes accused took out a polythene, having one knife and one wrist watch and same were produced before them. The knife was having some blood type stains on it and it was also having junk. He prepared sketch plan of said knife Ex.PW14/C. On measuring the total length of that knife was 37 cm, the length of the blade was 26.5cm and length of the handle was 10.5cm. The said knife was kept in a paper and it was converted into a cloth parcel. The wrist watch was of HMT Model and it was old one and it was not having any strap/chain on it. The said wrist watch was having white dial and over it word "Lats" was written and other words were not visible. The said wrist watch was kept in a paper and it was converted into a cloth parcel and same were given serial No.1 and 2 respectively. Both the pullandas were sealed with the seal of VSM and were taken into possession vide seizure memo Ex.PW14/D. The seal was handed over to Constable Ajesh after use. PW14 HC Ajesh and PW19 HC Kishan Lal gave confirmation to the facts as deposed by PW25 Insp. V.S.Malik. After investigation was received by Insp. M.S. Malik, he moved an application for conducting test identification proceedings of watch. The TIP proceedings were S.C. No. 81/09 Page 31/46 32 conducted by PW15 Shri Sanjay Khanagwal, ld. M.M. and he has proved the TIP proceedings Ex.PW15/A and the wrist watch was identified by PW1 Madhav Raj as belonging to his deceased brother.
41. The recovery is again challenged by ld. Defence counsel on the count that no independent person was joined in the proceedings. In this regard, it has come in the testimony of the witnesses that efforts were made to join independent witness but none agreed to join. As has been seen above, the reluctance of the public persons to join police proceedings is always there and same is writ large in the instant case and is manifested from the fact that although accused was arrested on the pointing out of PW Raghubir however, when he appeared in the witness box, he chose not to support the case of prosecution and turned totally hostile. Therefore, mere fact that there is no independent witness to the recovery is not fatal to the case of prosecution and it stands proved from the corroborative testimony of police officials that watch belonging to the deceased and knife was recovered at the instance of this accused from a place which was not accessible to the general public and must have been within his personal knowledge in as much as it has come on record that after going 34 steps from the slop of the pushta from bushes, accused took out the polythene which was containing blood stained knife and wrist watch. Although it is correct that it has come in the testimony of police officials that the place from where recovery was effected falls within the jurisdiction of P.S.Loni and no local police was called at that time, that at best that can be termed to be an irregularity and not illegality which may go to the root of the matter.
42. Under the circumstances, recovery of weapon of offence and watch belonging to deceased pursuant to the disclosure statement made by the accused stands proved which is admissible in evidence under Section 27 of S.C. No. 81/09 Page 32/46 33 Evidence Act.
EXPERT EVIDENCE:
43. It is further case of the prosecution that on 27.2.2009 investigation of the case was transferred to Insp. M.S.Malik (PW24).On 9.3.2009 he directed SI Om Pal to take sealed pullanda from MHCM for obtaining subsequent opinion from autopsy surgeon. Accordingly on 9.3.2009 SI Om Pal Singh took two sealed parcels duly sealed from MHCM P.S.Gokal Puri and deposited both the parcels with record clerk GTB Hospital. It has come in the testimony of Dr. Atul Gupta that he received a request for subsequent opinion and also received two sealed parcels. One parcel was sealed with the seal of VSM and was containing a single edged knife with a metallic blade and handle. Other parcel was containing six clothes namely one blood stained check yellow grey shirt, one blood stained blue sweater, one blood stained white baniyan, one blood stained cream colour pant, one blood stained red colour kachcha and one printed bed sheet. He prepared sketch of the knife Ex.PW17/B. Shirt, sweater and baniyan had multiple cut marks. After examining the clothes and the weapon and after going through post mortem report, he gave subsequent opinion Ex.PW7/C to the following effect:
1. Cut marks on the cslothes corresponded to the injuries as mentioned in PM report.
2. Injury no.1, 4, 6 and 7 as mentioned in the PM report Ex.PW17/A were possible by the said weapon received by him.
44. It is further the case of prosecution that on receipt of DD No.30A when police officials reached the spot, one person was found lying in injured condition near Ganda Nalla. His body was smeared with blood. The bag Ex.P3 of the deceased was handed over to the police which was found containing various articles collectively Ex.P2 and same was seized. Chappals Ex.P1 of the S.C. No. 81/09 Page 33/46 34 deceased lying at the spot were also seized. Blood Ex.PW25/1, blood stained earth control Ex.PW25/2, earth control Ex.PW25/3 was also seized. After the post mortem examination, blood on gauze of deceased and his clothes were handed over to I.O. The tshirt Ex.P5 belonging to accused Gagan and recovered at his instance was also seized. After recovery of knife Ex.P4 and wrist watch Ex.PA1 at the instance of accused Gagan, same were also seized. All the sealed parcels were sent to FSL for expert opinion.
45. Ld. defence counsel, however, submitted that possibility of tampering with case property cannot be ruled out in as much as although all the seizure memos were prepared by Insp. V.S.Malik with the seal of VSM. However, PW9 HC Vikram Singh had deposed that all the parcels were deposited by M.S.Malik. How Insp. M.S.Malik could have deposited the parcels with HC Vikram Singh on the date as mentioned in his testimony when he was entrusted with the investigation of the case only on 27.2.2009. This submission is also devoid of merits in as much as it seems that it is a typographical mistake in as much as the first investigating officer was Insp.V.S.Malik and second investigating officer was Insp. M.S.Malik. Moreover, the fact that this is a typographical mistake is clear from the fact that when this witness came to depose in the court, he had also brought register No.19 wherein the entries were exhibited as Ex.PW9/A to PW9/D. A perusal of the same goes to show that all the parcels were deposited by SHO V.S.Malik. The mere typographical mistake does not mean that the parcels were not deposited on the dates as mentioned in register No.19 or that the same were subsequently tampered with and deposited by Inspector M.S.Malik. Moreover, perusal of report Ex.PW18/A goes to show that when parcels were sent to FSL, all were sealed with the seal of VSM. As such this submission is also devoid of merit.
S.C. No. 81/09 Page 34/46
35
46. When the seized parcels were sent to FSL, same were examined by PW18 Dr.Dhruv Sharma. After examination of the exhibits, Sr.Scientific Officer gave his biological report Ex.PW18/A and serological report Ex.PW18/B which are to the following effect: Description of articles contained in parcel Parcel '1' :One sealed cloth parcel sealed with the seal of VSM containing exhibit '1' kept in a plastic dibbi.
Exhibit '1' :Cotton wool swab described as blood lifted from the spot. Parcel '2' :One sealed cloth parcel sealed with the seal of VSM containing exhibit '2' kept in a plastic dibbi.
Exhibit '2' :Earth described as 'Blood stained earth. Parcel '3' :One sealed cloth parcel sealed with the seal of VSM containing exhibit '3' kept in a plastic dibbi.
Exhibit '3' ;Earth described as 'Earth control'.
Parcel '4' :One sealed cloth parcel sealed with the seal of VSM
containing exhibit '4' described to be deceased.
Exhibit '4' :One cloth bag having darker stains.
Parcel '5' :One sealed cloth parcel sealed with the seal of 'NA containing
exhibit '5'.
Exhibit '5' :Brownish gauze cloth piece described as 'blood sample of
deceased.
Parcel '6' :One sealed cloth parcel sealed with the seal of 'SR' containing
exhibits '6a', '6b', '6c', '6d', '6e' and '6f' described as clothes of deceased.
Exhibit '6a' : One shirt having dirty brown stains.
Exhibit '6b' : One pants.
S.C. No. 81/09 Page 35/46
36 Exhibit '6c' : One sweater.
Exhibit '6d' : One torn bedsheet.
Exhibit '6e' : One baniyan having brown stains.
Exhibit '6f' : One underwear.
Parcel '7' :One sealed cloth parcel sealed with the seal of 'SR' containing
exhibit '7'.
Exhibit '7' :One knife.
Parcel '8' :One sealed cloth parcel sealed with the seal of 'VSM'
containing exhibit '8'.
Exhibit '8' :One Tshirt.
Result of analysis
1. Blood was detected on exhibits 1, 2, 4, 5, 6a, 6b, 6c, 6d, 6e, 6f, 7 & 8.
2. Blood could not be detected on exhibit '3'.
Exhibits Species of origin ABO Grouping/Remarks
'1' Cotton wool swab Human No reaction
'2' Blood stained earth Human No reaction
'3' Earth control No reaction
'4' Cloth bag Human 'A' Group
'5' Blood stained gauze Human 'A' Group
'6a' Shirt Human 'A' Group
'6b'Pants Human 'A' Group
'6c'Sweater Human No reaction
'6d'Bedsheet Human No reaction
'6e'Baniyan Human 'A' Group
'6'.Underwear Human 'A' Group
S.C. No. 81/09 Page 36/46
37
'7' Knife Human No reaction
'8' Tshirt Human 'A' Group
47. As per these reports, human blood was detected on knife Ex.7 although blood group could not determined. Ex.5 is blood stained gauze of deceased and Ex.6A to 6f are clothes of the deceased and on Ex.5, 6A, 6b, 6e and 6f human blood was found and it was opined to be of 'A' group. Tshirt of Gagan which was sent for examination, was also found to contain human blood and blood group was 'A' . No explanation has been given by accused as to how on his tshirt blood was found and that too of 'A' group which was that of the deceased. This piece of evidence also goes against the accused. As such expert evidence also lends corroboration to the version of PW3 Vinay Kumar. REFUSAL OF ACCUSED TO JOIN TEST IDENTIFICATION PROCEEDINGS:
48. Another piece of evidence against accused Gagan is his refusal to join test identification parade. In regard to this piece of evidence it is the submission of ld. counsel for accused that accused has refused to join TIP proceedings in as much as he was shown to the witness and his photograph was taken in the police station which is fortified by the fact that in the judicial record, photograph of the accused is available and moreover, it was the case of prosecution that when the accused was in police station, PW Vinay Kumar had identified him, as such it was submitted that accused was justified in declining to participate in the test identification proceedings. This submission is also devoid of merits in as much as record reveals that the accused was arrested on 15.1.2009. As per testimony of Insp. V.S.Malik, accused was kept in muffled face. He was put in the lock up and on the next day, he was sent to J.C. On 19.1.2009, he moved an application Ex.PW25/H for conducting judicial test identification parade. The application was fixed for 22.1.2009. As per testimony of PW16 Shri Lalit Kumar, ld. M.M. on S.C. No. 81/09 Page 37/46 38 22.1.2009 he went to Central Jail, Tihar to conduct TIP of accused Gagan. The accused however, has refused to join the proceedings on the ground that he was shown to the witness and his photograph was taken. He proved TIP proceedings Ex.PW16/A. As regards the plea of ld. defence counsel that PW Vinay Kumar had seen the accused in the police station, here it may be mentioned that as per prosecution version, after the test identification proceedings were conducted, Insp.V.S.Malik got production warrants of this accused issued and he was produced before the court on 29.1.2009 and then he was taken on one day's police remand. According to him, eye witness Vinay Kumar had identified accused Gagan in police station and he recorded his statement in this regard. As such, as per testimony of the I.O., PW Vinay Kumar had identified this accused in PS on 29.1.2009 i.e. much after the TIP proceedings. Although it is a different matter that Vinay Kumar had denied having identified this accused in the P.S. on 29.1.2009. there is no other material on the record to show that during the period 15.1.2009, till 22.1.2009 any of the witness had seen the accused. As regards the plea that in the judicial record itself, photograph of accused is available and, therefore, this photograph was shown to the witness and as such the accused was justified in refusing to join the TIIP proceedings, record reveals that when this accused was produced in the court, ld. predecessor of this court observed that the accused seems to be minor, as such ASI Subhash Chand was directed to take him to GTB Hospital for the purpose of ossification test and to submit the report of the doctor. Record reveals that in pursuance thereof, the accused was handed over to ASI Subhash and his ossification test was conducted at GTB Hospital on 16.4.2009. This photograph is available alongwith ossification report. Therefore, this photograph was taken on 16.4.2009 much after the TIP proceedings were conducted on 22.1.2009. Under the circumstances, there is S.C. No. 81/09 Page 38/46 39 nothing on record to justify the plea of the accused that he was either shown to the witness or his photograph was taken and therefore, he declined to join TIP proceedings. Under the circumstances, his refusal to join test identification proceedings leads to an adverse inference that had he joined the proceedings, he would have been identified by the witness.
49. The object, purpose and importance of test identification parade was succinctly dealt with by Hon'lble Supreme Court in Suraj pal and others vs. State of Haryana, 1994 (2) Crimes 862, where it was held as under : "It may be pointed out that the holding of identification parades has been in vogue since long in the past with a view to determine whether an unknown person accused of an offence is really the culprit or not to be identified as such by those who claimed to be the eyewitnesses of the occurrences and that they would be able to identify the culprit if produced before them by recalling the impressions of their features left on their mind. That being so, in the very nature of things, the identification parade in such cases serves the dual purpose. It enables the investigating agency to ascertain the correctness or otherwise of the claim of those witnesses who claimed to have seen the offender of the crime as well as their capacity to identify him and on the other hand it saves the suspect from the sudden risk of being identified in the dock by such witnesses during the course of the trial. This practice of test identification as a mode of identifying an unknown person charge of an offence is an age old method and it has worked well for the past several decades as a satisfactory mode and a well founded method of criminal jurisprudence. It may also be noted that the substantive evidence for identifying witness is his evidence made in the Court but in cases where the accused person is not known to the S.C. No. 81/09 Page 39/46 40 witnesses from before who claimed to have seen the incident, in that event identification of the accused at the earliest possible opportunity after the occurrence by such witnesses is of vital importance with a view to avoid the chance of his memory fading away by the time he is examined in the Court after some lapse of time."
50. In that case also the accused had refused to join test identification proceedings. It was held that the accused could not have been compelled to line up for test parade, but they did so on their own risk for which the prosecution could not be blamed for not holding the test parade. The reason given by the appellants (in that case) for declining the test of identification was that they were shown by the police to the witnesses, but this allegation has been found to be baseless. As such, if the appellant in exercise of their own volition had chosen not to stand the test of identification without any reasonable cause, they did so on their own risk, for which they cannot be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted. This very authority was relied upon in Mohd. Aslam vs. State, Manu/DE/0398/2010. In that case also the accused was identified by the complainant, when he was examined during trial. When he appeared before the ld. Metropolitan Magistrate, he refused to join test identification parade, without assigning any reason. It was observed by Hon'ble High Court that if the accused refuses to join test identification parade, without any justifiable cause, he does so on his own peril and the Court will, in such circumstances, is justified in coming to an inference that had the accused joined TIP, he would have been identified by the witnesses, that precisely was the reason as to why he refused to join. The identification of the appellant in Court, coupled with his refusal to join TIP without any reasonable ground was held to be sufficient to establish his identity. Similar view was taken S.C. No. 81/09 Page 40/46 41 in Lal Singh and another vs. State NCT of Delhi, Manu/DE/2921/2009. In view of these authoritative pronouncement, the refusal on the part of accused to join TIP proceedings on the ground that he was shown to the witnesses and his photograph was taken is baseless. As such for his refusal to join TIP proceedings, an adverse inference has to be drawn that had he joined TIP proceedings, he would have been identified by the witness.
51. The result of the aforesaid discussion is that as regards accused Vinod Kumar is concerned, prosecution has not been able to establish its case beyond reasonable doubt. As such this accused is entitled to benefit of doubt and is therefore, acquitted of the offence.
52. However, as regards accused Gagan is concerned, there is ample material available on record viz. eyewitness account, his refusal to join TIP proceedings, recovery of his blood stained Tshirt which he was wearing at the time of incident, recovery of weapon of offence at his instance, medical evidence and scientific evidence to connect him with the commission of crime and to prove that it was he who alongwith his associates, caused stab injury on the person of Chhutku @ Nanku which proved fatal.
53. Moreover, the mere fact that one co accused Vinod Kumar has been acquitted, this accused cannot claim parity in as much as power of the court to distinguish the cases of one or more of the accused(s) from the other(s) is well recognize. In Gangadhar Behere Vs. State of Orissa, (2002) 8 SCC 381 it was observed as follows: "Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other coaccused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be S.C. No. 81/09 Page 41/46 42 separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons."
54. This view was reiterated in (2004) 2 SCC 455 Narain vs. State of M.P. and Prathap & Anr vs. State of Kerala, 2010 IX AD (S.C.) 118.
55. The facts and circumstances narrated above, establishes beyond reasonable doubt that on 22.12.2008 at about 12.15 a.m. at main road, Wazirabad, Ganda Nalla, Gokal Puri, opposite Flyover, Delhi, accused Gagan alongwith his associates who are still at large, in furtherance of his common intention caused stab injuries to Chhutku @ Nanku as a result of which he succumbed to injuries. Coming to the defence of accused he has taken the plea that he was lifted from his house by the police officials and was falsely implicated in this case. He has also examined DW1 Ratan Lal, his father and DW2 Suresh Kumar both of whom have deposed that on 08.01.09 HC Yogender took Gagan from the house and later on he was falsely implicated in this case. However, this submission does not inspire confidence in as much as the witness admitted that no telegram/complaint was given to any senior police official or any other authority by Sh. Ratan Lal informing them that his son was taken by the police officials and that later on he was falsely implicated in this case. Under these circumstances, the mere bald allegation do not prove the defence of the accused. On the other hand, as stated above prosecution has been able to establish its case beyond reasonable doubt by way of eye witness account of the incident, medical evidence, recovery of weapon of offence at the instance of accused and the expert evidence. As such, accused Gagan is held guilty for the offence punishable under section 302 read with section 34 of IPC and is convicted thereunder. The wrist watch belonging to deceased Chhutku was S.C. No. 81/09 Page 42/46 43 recovered at the instance of accused Gagan which he retained knowing or having reasons to believe the same to be stolen property. As such charge under section 411 IPC is also proved against him. However, he is also charged for the offence under sections 392/394/397 IPC. For these offences, there is no sufficient evidence in as much as testimony of Vinay Kumar is confined to stabbing of deceased Chhutku by 34 persons. No evidence has come that robbery was committed or while committing robbery stab injuries were caused on the person of Chhutku. As such, sections 392/394/397 IPC are not proved.
56. In view of the foregoing discussion, while accused Vinod is acquitted of the charges leveled against him by granting him benefit of doubt, accused Gagan is held guilty for the offence punishable under sections 302 r.w. 34 and 411 IPC.
Announced in the open Court (Sunita Gupta) On this 29th day of March, 2011. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 81/09 Page 43/46 44 IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 81/09
Unique Case ID No. 02402R0117152009 State vs. Gagan S/o Sh. Ratan Lal, R/o B488, Gokalpuri, Delhi. FIR No. 405/08 PS Gokalpuri U/s 302/34 & 411 IPC.
Date of Institution : 16.04.2009 Date of reserving the Judgement : 29.03.2011 Date of Pronouncement : 31.03.2011 ORDER ON THE POINT OF SENTENCE :
1. Convict Gagan has been convicted for the offence punishable under section 302 r.w. 34 and 411 IPC. I have heard him as well as his counsel Shri Deepak Kumar, Advocate. Leniency in punishment has been claimed by ld counsel for the convict. He presents that convict is of a tender age and belongs to a very poor family. Moreover, he is a first offender and has no past criminal history. He also submits that it is not a rarest of rare case. In case convict is awarded capital punishment, then his family would be ruined.
2. On the other hand, ld. Addl. PP submits that the offence committed by the convict is of a serious complexion and as such no leniency is called for.
3. On 22.12.08 at about 12.15 am (in the night), witness Vinay Kumar was going back to his house on his motorcycle and when he reached at Main Road, Wazirabad Ganda Nala, Gokalpuri flyover, he saw 34 boys wielding knife blows to a person. Thereafter, he mustered courage, stopped his S.C. No. 81/09 Page 44/46 45 motorcycle and went to save the boy, who was being stabbed. On seeing him, those boys ran away from the spot. However, one boy who was trying to snatch the bag from the injured was apprehended by him. He informed the police. The injured succumbed to his injuries before reaching of PCR officials.
During the course of investigation, accused Gagan was also arrested in the case on 15.01.09.
4. From the facts and circumstances detailed above, I am of the considered opinion that it is not a rarest of rare case where capital punishment should be awarded to the convict. As such, I sentence the convict to undergo imprisonment for life and to pay a fine of Rs.3,000/ for offence punishable under section 302 r.w. 34 IPC. In default of payment of fine, convict would further undergo RI for six months. The convict is further sentenced to undergo RI for six months for the offence under section 411 IPC. Both the sentences shall run concurrently. Convict shall also get benefit u/s 428 Cr.P.C.
5. A copy of the judgement and order on sentence be supplied to the convict free of cost.
Announced in the Open Court (Sunita Gupta)
st
On this 31 day of March, 2011. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 81/09 Page 45/46 46 S.C. No. 81/09 Page 46/46