Delhi District Court
State vs . 1. Shyam Niwas S/O Suresh Kumar, R/O ... on 4 January, 2010
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 46/09
State Vs. 1. Shyam Niwas S/o Suresh Kumar, R/o 27A, Old Khothi,
Welcome, Seelampur, Delhi.
2. Ravi S/o Pyare Lal, R/o Jhuggi No. 421, GBlock, New
Seelampur, Delhi.
3. Akbar @ Bhola S/o Mohd. Yasin, R/o H.No. M87, Tikona Park,
Welcome, Delhi.
4. Qayyum @ Haddi S/o Latif, R/o G174, New Seelampur, Delhi.
FIR No. 407/2008
PS Seelampur
U/s 392/394/397/302/34 IPC.
J U D G E M E N T : Prosecution's case emanates from the fact that on 02.10.08 at 12.40am at Seelampur Tpoint, in front of Seelampur Metro Station, Delhi, Shyam Niwas, Ravi, Akbar and Qayyum accosted Fiazuddin, who was passing that way with his goods. They tried to snatch his bags, which act was resisted by him. At that juncture, Akbar @ Bhola and Shyam Niwas caught hold of hands of Fiazuddin and Qayyum @ Haddi started snatching his bags. Fiazuddin resisted their acts. Ravi took out a knife and stabbed Fiazuddin. He sustained injuries and was removed to GTB Hospital, where he met his death. Firdosh Begum had witnessed the entire incident, as such her statement was recorded by police, which became bedrock of the case. Investigation was taken up. During the course of investigation, accused persons were arrested. Investigation culminated into a chargesheet against them.
2. Charge for offences punishable under sections 394, 397 and 392 read with section 34 IPC was framed against all the accused persons, besides separate charge for offence punishable under section 302 read with section 34 IPC against accused Shyam Niwas, Akbar @ Bhola and Qayyum @ Haddi and charge under section 302 IPC against accused Ravi was framed, to which 2 charges they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Munne (PW1), Firdosh (PW2), Ashok Kumar, Constable (PW3), Noor Mohd (PW4), Biju Varghese, Constable (PW5), Narender Kumar, Constable (PW6), Mukesh Kumar Jain (PW7), Suresh Kumar ASI (PW8), Jagdev Constable (PW9), Dr. Arvind Kumar (PW10), Ram Rattan, Head Constable (PW11), Ved Singh Malik, Inspector (PW12), Fateh Singh SI (PW13), Ms. Shashibala, Sr. Scientific Assistant (PW14) and Dr. Prabhakar (PW15) in the case.
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 allegations levelled against them. Their case has been of denial simplicitor. They pleaded their false implication in the instant case. They claimed themselves to be innocent. However, they opted not to lead any evidence in their defence.
5. Munne (PW1) identified dead body of his son Faizuddin at mortuary, GTB Hospital, on 08.10.08, vide his identification statement Ex.PW1/A. Firdosh Begum (PW2) is alleged to be solitary eyewitness of the incident. Ashok Kumar, Constable (PW3) joined investigation of the case on 02.10.08. He recorded disclosure statement of accused Ravi. When this witness claimed his ignorance about other facts of the case, he was crossexamined by the ld. Prosecutor at length. Then he testified other facts of the case. Noor Mohd. (PW4) idetified dead body of his nephew Faizuddin, vide identification statement Ex.PW4/A. Constable Biju Varghese (PW5) detailed facts pertaining to arrest of accused Ravi and Shyam Niwas, besides recording of their disclosure statements and their medical examination. Narender Kumar, Constable (PW6) narrated facts pertaining to arrest of accused Qayyum @ Haddi and Akbar, besides recovery of weapon of offences at their instance.
3 Mukesh Kumar Jain SI (PW7) inspected spot, took measurements and prepared rough notes on the pointing out of Fateh Singh SI. Thereafter, he prepared scaled site plan and gave the same to IO. He proved scaled site plan as Ex.PW7/A. Suresh Kumar ASI (PW8) was working as duty officer at PS Seelampur on 02.10.08. He recorded formal FIR and proved copy of it as Ex.PW8/A. Jagdev Constable (PW9) deposited two parcels at FSL Rohini, vide R.C. No. 97/21. After depositing the same at FSL, he gave receipt of it to MHC(M). Ram Rattan, Head Constable (PW11) sent various parcels to FSL on different dates for opinion. Ved Singh, Inspector (PW12) conducted inquest proceedings vide memo Ex.PW12/A. He also got conducted postmortem on dead body, besides recording identification statement of the dead body. Fateh Singh, SI (PW13) conducted investigation of the case. He detailed those very investigative steps, which were taken by him during the course of investigation.
6. Dr. Arvind Kumar (PW10) conducted autopsy on the dead body of Faizuddin. He proved his report to this effect as Ex.PW10/A. He opined time since death was about one day and cause of death was septicaemic shock due to antemortem injuries to abdomen resulting gastic perforation produced by sharp edged weapon. He also opined that injury No.1 was sufficient to cause death in ordinary course of nature.
7. Ms. Shashibala, Sr. Scientific Assistant (Biology) (PW14) examined exhibits of the case. She gave her biological report in this regard and proved the same as Ex.PW14/A. She also proved her serological report as Ex.PW14/B. Dr. Prabhakar (PW15) proved MLC of Faizuddin as Ex.PW15/A, which was prepared by Dr. Manish Kumar Nigam.
8. I have heard Sh. Subhash Chauhan, ld. Prosecutor, for the State and Sh. M.H. Khan, Sh. S.B. Sharma, Sh. Jitender Kumar and Sh. W.A. Khan, 4 Advocates, for the accused persons, and have also perused the record.
9. It was submitted by ld. Counsel for the accused that prosecution has failed to prove its case, inasmuch as, only eyewitness, namely, Firdosh Begum, has not supported the case of prosecution. As regards accused Shyam Niwas, Ravi and Akbar, except for their disclosure statements, there is no incriminating evidence against them to connect with the crime. Even as regard accused Qayum @ Haddi, some recovery is alleged to have been effected. However, there is material discrepancy in the testimony of police officials and alleged recovery from the accused Qayum does not connect with the deceased. Moreover, investigation is also tainted, inasmuch as, as per MHC(M) only three pullandas were deposited with him. However, when SI Fateh Singh was examined, as many as seven pullandas were opened. No explanation is forthcoming as to from where those seven pullandas were produced in the Court. However, FSL report does not help the prosecution, as such it was submitted that all the accused persons are innocent and entitled to be acquitted.
10. Prosecution in the instant case has relied upon :
(i) eyewitness account of the incident,
(ii) disclosure statements of the accused persons, and
(iii) Recovery effected from accused Qayum @ Haddi.
11. I shall take up each of the circumstance relied upon by the prosecution. As per prosecution version, on receipt of DD No. 32A regarding one person lying in unconscious condition beneath Flyover, Seelampur, near Gurudwara, SI Fateh Singh along with Constable Ashok Kumar went to the spot, where he came to know that injured has already been taken by PCR van to GTB Hospital. He along with Constable Ashok Kumar went to GTB Hospital and collected MLC of Faizuddin. However, the patient was declared unfit for 5 statement. He came back to the spot and one lady, namely, Firdosh Begum, who used to put eggcart met him and she stated that she had witnessed the incident and accused persons were known to her, as they were residents of the jhuggi in Seelampur. He, accordingly, recorded her statement under section 161 Cr.P.C, wherein she has alleged to have stated that on the night intervening 01/021008, she had put her eggcart on pavement near Gurudwara, Seelampur, Delhi. At about 12.30am, she saw Ravi, Qayum @ Haddi, Shyam Niwas and Akbar @ Bhola standing near flyover, Seelampur, Delhi. One passerby was going beneath flyover. All the four boys caught hold of that passerby and started grappling with him. Bhola @ Akbar and Shyam Niwas caught hold of hands of that passerby, while Qayum @ Haddi snatched two bags belonging to him. When that passerby protested, then Ravi inflicted knife blows on that passerby, as a result of which he started raising alarm. All the four boys ran away towards red light Seelampur. She became scared and went to her jhuggi along with her eggcart. All the four boys had looted the passerby on the point of knife. However, when this witness was examined as PW2, she took a complete somersault and denied having witnessed anything. She went to the extent of denying her presence at the spot by stating that her grandson had met with an accident and she was present in Bara Hindu Rao Hospital and did not know anything about the case. She was crossexamined by the ld. Prosecutor and in crossexamination, she denied having witnessed any incident. She went on stating that in the year, 2009, she was going to market and was called to police station by police officials. Two persons were sitting in the police station and she was told that she would be cited as the witness. However, those persons were not known to her from before. Her statement was never recorded by police. She denied that her statement was recorded by police on 02.10.08 or that on the intervening night of 01/021008, 6 being "Eid Chand Raat", she put eggcart near Gurudawara, Seelampur, or that accused Ravi, Qayum @ Haddi, Shyam Niwas and Akbar @ Bhola were known to her. She further denied that on the intervening night of 01/021008 at about 12.30am, in the night, she saw all the accused persons catching hold of one person, beneath Seelampur flyover and were snatching the bag of passerby. She also denied that accused Bhola and Shyam Niwas caught hold of that passerby or that Haddi tried to snatch bag of that passerby, and in that process accused Ravi stabbed him, or that passerby raised alarm and then all the four accused persons ran towards Seelampur red light. She further denied having witnessed the occurrence of incident or that accused stabbed or tried to rob that passerby in her presence. She could not identify the knife Ex.P1. The result of the same is that she was solitary eyewitness of the incident and has not supported the case of prosecution.
12. The other piece of evidence relied upon by the prosecution, as regard accused Shyam Niwas, Ravi and Akbar @ Bhola, is their arrest and disclosure statements made by them. SI Fateh Singh has testified that on 02.10.08, after he came back to the spot from hospital, he met Firdosh Begum, who gave her statement and stated that accused persons are known to her, as they were residents of jhuggi in Seelampur. Thereafter, she pointed out towards accused Shyam Niwas, who was apprehended near Seelampur Gurudwara, near Tempo stand. Accused Shyam Niwas made disclosure statement Ex.PW1/B. He stated that coaccused Ravi reside in jhuggi JBlock, Seelampur, Delhi. Thereafter, accused Ravi was apprehended from his jhuggi No. 421, JBlock, Seelampur, Delhi. He also made disclosure statement Ex.PW3/A. On 07.10.08, on the basis of a secret information, accused Akbar @ Bhola was apprehended from M87, Tikona Park, Welcome, Delhi. He also made disclosure statement Ex.PW6/A. Thereafter, he led the police party to Tpoint, 7 Seelampur, from where accused Qayum @ Haddi was arrested, who made disclosure statement and got recovered two bags from inside his house, which contained blood stained pant and blood stained knife as well as old pants and shirt belonging to the deceased. Same were into possession.
13. As regard accused Shyam Niwas, Ravi and Akbar @ Bhola is concerned, except for their disclosure statements, there is no incriminating piece of evidence against them. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly, section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of section 25 and 26 of the Evidence Act, there is an exception carved out by section 27 of the Evidence Act, providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence. Therefore, as regard accused Shyam Niwas, Ravi and Akbar @ Bhola, except for their disclosure statements, there is no incriminating piece of evidence to connect them with crime and since disclosure statement was made by these accused persons while in custody of police, under these circumstances, same is hit by section 25 and 26 of the Evidence Act, as such 8 they are inadmissible in evidence.
14. Coming to the case of accused Qayum @ Haddi, according to SI Fateh Singh, accused Qayum got recovered two bags from his house at the ground floor. On checking the bag, it was found containing one grey colour pant and one blood stained knife. The other bag was containing two old pants and one new shirt, one towel. Leather slipper and two pairs of socks. The bags were taken into possession. The knife was kept in pullanda and was sealed with seal of FS and was taken into possession vide memo Ex.PW6/C. The blood stained pant was kept in a separate pullanda and was also sealed with seal of FS and was taken into police possession, vide memo Ex.PW6/C. Bags and other clothes were also kept in separate pullandas and sealed with seal of FS and taken into possession vide memo Ex.PW6/D. At the very outset, it may be mentioned that arrest of accused Qayum is alleged to have been effected in presence of Constable Narender Kumar by SI Fateh Singh. Except both these two police officials, there was no independent witness either at the time of arrest of the accused or recovery. It has come in the testimony of both police officials that house of accused was surrounded by many other houses and even 4050 persons had gathered near the jhuggi. However, Constable Narender Kumar admitted that investigating officer did not ask any public persons to join investigation at the time of taking search of jhuggi of the accused. Under these circumstances, it becomes clear that despite the fact that there was no dearth of independent witnesses, absolutely no effort was made by the investigating officer to join any public person in the investigation.
15. Although there is no rule of law that testimony of police officials cannot be relied upon. However, rule of prudence requires that their testimonies should be scrutinized with great care. As stated above, there are only two witnesses of arrest of accused Qayum and recovery alleged to have been effected from 9 him. Perusal of testimony of these witnesses goes to show that they did not corroborate each other, inasmuch as, according to PW6 Constable Narender Kumar, recovery was got effected from a takht, which was lying at the interior right side of the room. Except for takht, no other article was lying in the room. The accused had produced bags before the IO, who checked the same inside the room itself, while keeping the same in the takht. Accused Haddi had taken out a knife from the bag and produced the same before the investigating officer. Similarly, he took out a pant and knife and produced the same before the investigating officer. Thereafter, IO prepared seizure memo, while sitting on the slab outside the house of accused. However, according to SI Fateh Singh, bags were lying at the East corner, right side of the room. Except for cot and utensils, no other article was lying over that corner. He himself lifted the bag from that corner. Bags were brought to police station. He prepared seizure memo in the police station. Further more, according to Constable Narender Kumar, accused Qayum was wearing a pant, having blood stains, at the time of occurrence of incident. Firstly, it is highly improbable that the incident would take place on the intervening night of 01/021008 and even on 07.10.08 and accused would continue to wear the blood stained pant. Moreover, according to the IO, blood stained shirt was lying in a bag, which was got recovered at the instance of accused Qayum @ Haddi. The discrepancy, referred above, seriously casts a doubt as to whether the recovery was alleged to have been effected at the instance of this accused or not.
16. Even, if it is presumed for the sake of arguments that bags were recovered at the instance of accused Haddi, even then no evidence has been collected by the prosecution to prove that blood stained pant or other clothes lying in the bags belonged to the deceased or not, inasmuch as, PW1 Munne 10 was father of the deceased, while PW4 Noor Mohd was uncle of deceased Faizuddin. However, both these witnesses are witnesses to identification of the dead body of deceased. No effort was made by the investigating officer to get clothes, which were got recovered from possession of accused Qayum @ Haddi to be identified by these witnesses in order to prove that clothes belonged to the deceased.
17. Further more, the knife was alleged to have ben recovered from accused Qayum. However, postmortem on the dead body of Faizuddin was conducted by PW10 Dr. Arvind Kumar. After recovery of knife, no effort was made by the investigating officer to get subsequent opinion from the doctor as to whether injury on the person of Faizuddin was possible by the weapon of offence, which was allegedly recovered from accused Qayum.
18. Similarly, the report of FSL Ex.PW14/A and Ex.PW14/B does not improve the case of prosecution. Three parcels were sent to FSL containing gauze cloth piece, described as blood on the gauze of deceased, knife and blood stained looted pant of the deceased. Although as per report, all the three exhibits were of human origin and the blood group was opined as ' B'. But MLC of Faizuddin was prepared by Dr. Manish Kumar Nigam, who had left services of the hospital, as such Dr. Prabhakar had appeared in the witness box and proved MLC of Faizuddin. In crossexamination, this witness had deposed that as per MLC, nothing was seized by Dr. Manish Kumar Nigam, like blood sample and clothes etc. Therefore, although as per FSL report, blood gauze, cloth piece, containing blood of the deceased, was sent to FSL, but this fact is not corroborated by MLC. Moreover, at the time of postmortem examination, clothes of the deceased were not taken into possession. The blood stained pant was allegedly recovered from accused Qayum. It is not clear as to how this blood stained pant, if it was worn by deceased, came into 11 possession of accused Qayum. Moreover, at the risk of repetition, it may be mentioned that it is not established that blood stained pant belonged to the deceased. Even as regard knife, although blood group was opined to be of ' B' group, but neither the recovery of this knife, at the instance of accused Qayum, is proved beyond reasonable doubt, nor any evidence has come on record to prove that this was the knife, which was used in commission of crime, inasmuch as, the only eyewitness of the incident, namely, Firdosh has not supported the case of prosecution and even subsequent opinion of the doctor has not been taken, who could have opined whether the injuries on the person of deceased were possible by the weapon of offence alleged to have been recovered from accused Qayum.
19. Further more, there is substantial force in submissions of ld. Counsel for the accused that as per testimony of PW11 HC Ram Rattan, who was working as MHC(M), on 07.10.08 SI Fateh Singh had deposited three parcels, duly sealed, and thereafter on the same date, Inspector Ved Singh Malik also deposited one envelop duly sealed and one sample seal. Meaning thereby that as per testimony of this witness, only three parcels and one envelop were deposited with him by SI Fateh Singh and Inspector Ved Singh Malik. In FSL also, only three samples were sent which were received back on 17.03.09. However, when SI Fateh Singh appeared in the witness box, as many as seven parcels were opened in his testimony. No explanation is forthcoming as to how seven parcels were produced, when only three parcels were deposited with MHC(M).
20. In Swarn Singh Ratan Singh Vs. State of Punjab, AIR 1957 SC 637, it was held by the Apex Court that in criminal cases mere suspicion, however, strong, cannot take place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against 12 him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof.
21. Moreover, in Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court had observed as follows : "Another Golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding that benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is exfacie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt 13 has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, however is more apparent than real.
It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not rule out altogether." These two authorities, as detailed above, were relied upon by the hon'ble High Court in CRL. A. No. 240/2009, dated 17th June, 2009, in case titled Shri Raj Pal Vs. State (NCT of Delhi) & Ors.
22. Applying the aforesaid principle to the facts of present case, it becomes crystal clear that prosecution has not been able to bring home the guilt of the accused persons beyond shadow of reasonable doubt. Result of the same is that accused persons are entitled to get benefit of the same, as such accused persons are acquitted of the charge. They be set at liberty, if not wanted in any other case. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 4th day of January, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.