Delhi District Court
State vs Navami Thakur on 25 September, 2023
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01) :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
STATE Vs Navami Thakur & Anr.
Case No. : 229/2017
FIR No. : 52/2017
U/S : 302/34 IPC
PS : Badarpur
Particulars of the case
a) Date of Offence : 29.01.2017
b) Offence complained of : 302/34 IPC
c) Name of the complainant : Sh. Rajeev Kumar
d) Name of the accused No. 1 : Navami Thakur
His parentage, Sh. Janardhan Thakur,
R/o H. No. 200, Near Nasha
Mukti Kendra, Molarband
Village, New Delhi
Name of the accused No. 2 : Raghuvar Thakur,
His parentage, Sh. Janardhan Thakur,
R/o H. No. 200, Near Nasha
Mukti Kendra, Molarband
Village, New Delhi
Plea of the accused : Both accused persons
pleaded not guilty
SC No. 229/2017
FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 1 of 35
Final order : Accused No. 1 convicted u/s 304
Part II IPC
Accused No. 2 acquitted
Date of Institution : 25.05.2017
Date of Judgment reserved for orders : 24.08.2023
Date of Judgment : 25.09.2023
Ld. Additional PP for the State : Sh. Ashok Debbarma
Ld. Counsel for both accused : Sh. Ayub Khan
JUDGMENT
1. CHARGE-SHEET 1.1 As per charge-sheet, on 29.01.2017 DD No. 18A was received regarding attack on a person by scissors. ASI Yashpal along with Ct. Mukesh reached the spot i.e. a barber Shop near Nasha Mukti Kendra at H. No. 200, Sapera Basti, Molarband Village, Badarpur. Therein blood was lying on the road as well as in the said shop. Public persons had gathered there and they had caught hold of two accused persons whom they handed-over to ASI Yashpal and public stated that they both are brothers and had stabbed a boy with scissors. The said accused persons had been beaten by the public persons. On inquiry their names were revealed as Navami Thakur and Raghuvar Thakur and it was found that the injured had been shifted to unknown hospital. No one from the spot SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 2 of 35 claimed himself to be an eyewitness. In the meanwhile, ASI Yashpal received DD No. 24A regarding MLC of injured. Thereafter, ASI Yashpal handed-over both the accused persons to Ct. Mukesh and he called other staff by making call to duty officer. Thereafter, ASI Yashpal left the spot for Apollo Hospital. Therein, on inquiry, it was found that patient Pawan S/o Sh. Desh Nath was declared brought dead vide MLC No. 72/2017. ASI Yashpal obtained the MLC. On the MLC doctor opined A/H/O stab injury over chest and patient Brought Dead.
1.2 In the hospital, complainant Rajeev Kumar met ASI Yashpal and claimed to be the eyewitness of the incident. Rajeev Kumar stated that he was the permanent resident of H. No. 193A, Sapera Basti, Molarband Village, Badarpur, New Delhi along with his family. He was running a band party in the name and style of Rajiv Nath Punjabi Bhangra Dholl Party. Pawan (mamera sala) was also working with him. On 29.01.2017, Pawan came to house of Rajeev Kumar regarding work. At about 12:30 PM, he along with Pawan went to Barber shop at the H. No. 200, Molarband Village, Nasha Mukti Kendra for haircut. This shop was being run by two brothers namely Navami Thakur and Raghuvar Thakur and they were living on rental basis in the aforesaid house on the above floor and were permanent residents of Bihar. In the shop two customers were sitting so Rajeev and Pawan stood outside the shop and waited for their turn. In the meantime, Pawan took the comb from the shop and started combing his hair. Navami asked Pawan to give the said comb to him on which SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 3 of 35 Pawan said that "I will give you the comb after setting my hair". On hearing this, Navami started abusing Pawan and stated that he cannot wait for that as his customers were sitting in the shop. Pawan asked Navami not to use abusive language. Thereafter, Navami and Raghuvar said that they (Pawan) are idle persons and always come to interfere in their work. Today, they will teach them a lesson. Both the accused persons caught hold of Pawan and started beating him. When complainant came to rescue Pawan, they pushed him, due to which complainant fell down on the road in front of the shop. In the meantime, complainant saw that Raghuvar caught hair of Pawan and shouted that brother today we will finish him. Navami picked the scissors after leaving Pawan and said that today he will kill Pawan. Navami stabbed the scissors in chest of Pawan. On seeing this, complainant shouted loudly. After hearing his noise, public persons gathered there. Complainant attended to Pawan and in the meanwhile, public persons started beating the accused persons. Complainant called on number 100. When ambulance came, complainant took his saala to Apollo Hospital and therein doctor declared him brought dead. Complainant stated that both the accused persons stabbed Pawan with intention to kill him. 1.3 Thereafter, ASI Yashpal reached at the place of incident with complainant. ASI Yashpal prepared the rukka and handed-over the same to Ct. Mukesh for registration of FIR. After registration of FIR, the investigation was marked to Inspector Ajay Kumar Singh. During the investigation, both the accused persons were sent to hospital as they were also injured. Crime team was SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 4 of 35 called at the spot and it inspected the spot. At the instance of complainant, site plan was prepared. Exhibits ie., blood from the floor of the shop, bloodstained comb, blood from outside the shop were lifted and taken into police possession vide seizure memo. After the medical treatment of accused persons, they were identified by the complainant and both the accused persons were arrested and their disclosure statements were recorded.
In his disclosure statement accused Navami admitted his guilt and he stated that he stabbed the said boy with the scissors on his chest and kept the said scissors in the drawer of his shop after killing him. He stated that he can recover the said scissors from his shop. Thereupon, at the instance of accused Navami, the scissors was recovered. Sketch of the scissors was prepared and the scissors were taken into police possession.
1.4 During the investigation, the clothes of deceased were seized. Dead body was deposited in AIIMS Hospital. At the spot, search was made for other eyewitnesses but none came forward to depose.
On 31.01.2017, postmortem of the dead body was got conducted. After the postmortem, the dead body was handed-over to Deshnath/ father of the deceased. Case property was deposited in the malkhana. Scaled site plan of the incident was got prepared. PCR form and postmortem report was obtained. Doctor opined the cause of death in the postmortem report as :- "hemorrhagic shock due to ante mortem chest injury which is caused by pointed blunt edged object'. Subsequent opinion was obtained regarding the weapon of offence i.e., SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 5 of 35 scissors wherein the doctor opined that "Yes, the injury sustained to deceased can be caused by recovered weapon (scissors)".
1.5 During the investigation, on 04.02.2017, a complaint was given by Deshnath/ father of the deceased. In the said complaint, he stated that landlord of Navami and Raghuvar namely Rishipal is the mastermind of murder of his son. Rishipal is the one who has hatched the conspiracy. Investigation was done regarding the same. It was found that Rishipal was resident of Badarpur and he hardly came to Molarband. He also got police verification of his both tenants. Phone details of Rishipal were obtained and after examining the same, no call record was found regarding talks with Navami and Raghuvar nor his location was found at the spot on the day of incident. Nothing suspicious was found against him.
On 27.02.2017, another complaint was given by Deshnath/ father of the deceased. In the said complaint, he stated that 1. Pali, 2. Sanjay, 3. Ajay, 4. Chatru, 5. Surender @ Kalu, 6. Balveer Nath, 7. Suresh, 8. Ravi, 9. Dighambar all residents of village and post - Tilpat, Tehsil and district - Faridabad had hatched the conspiracy to kill his son along with Rishipal because on 20.02.2017, they had fight with him and they stated to him that they had already killed his elder son and now it is time for his younger son. Investigation was made regarding the same and all the suspects were inquired one by one. On inquiry, it was found that all the 9 suspects belonged to Sapera caste. They have chaupal in village Tilpat on which family of Rajunath (brother of Deshnath) took SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 6 of 35 illegal possession. Due to which both parties had issues between them. Several complaints regarding this had been registered in PS Saria Khwaja and relevant office of Faridabad. Copy of the same were obtained. CDRs of all the suspects were obtained and after examining the same, it was found that none of the 9 suspects came to Badarpur on the date of incident. Statement of witnesses were recorded regarding the same. Nothing incriminating was found against any of 9 suspects.
1.6 Exhibits of the case were sent to FSL vide RC No. 55/21/17. After completion of investigation, charge-sheet u/s 302/34 IPC was filed against the accused Navami Thakur and Raghuvar Thakur before the Court. 1.7 Supplementary charge-sheet was filed along with FSL report. As per FSL report, the blood on the weapon of offence i.e., scissors which was seized at the instance of accused, blood lifted from the crime scene and blood on one comb found from the crime scene was found matching with the blood of deceased. Further, on examination of viscera of the dead body, it was found that the deceased had consumed liquor at the time of his death.
2. CHARGE 2.1 On the basis of charge-sheet, charge u/s 302 IPC read with 34 IPC was framed against accused Navami Thakur and Raghuvar Thakur to which they pleaded not guilty and claimed trial.
SC No. 229/2017FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 7 of 35 Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 21 witnesses as follows:-
S. No. Name of the witness Nature of the evidence
PW1 Sh. Rishipal Landlord of the shop at H. No. 200
PW2 HC Bachu Singh Police officer who took the case
exhibits to FSL
PW3 ASI Brij Mohan Duty Officer
PW4 Sh. Deshnath Father of the deceased
PW5 ASI Kriti Sharma In-charge crime team who prepared
the crime scene report
PW6 Sh. Raju Nath Witness who identified the dead body
of the deceased
PW7 HC Anil Kumar MHC(M)
PW8 Ct. Mukesh Kumar Police Official who accompanied ASI
Yashpal and was part of initial
proceedings
PW9 Dr. Mohd. Azharuddin Doctor who prepared the MLC of the deceased PW10 ASI Yashpal Police officer who reached the spot and got the FIR registered PW11 Ct. Sanjay Kumar Dispatcher of FIR to Ld. MM and the SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 8 of 35 senior police officers PW12 Inspector Mukesh Draftsman of scaled site plan Kumar Jain PW13 Sh. Rakesh Photographer who clicked the photographs of the crime scene PW14 SI Rajiv Police officer who accompanied Inspector Ajay Kumar (IO of the case) and who deposited the case exhibits to FSL, Rohini PW15 Rajiv Kumar Complainant PW16 Dr. Sundeep Ingale Doctor who conducted the postmortem of the deceased PW17 Sh. M. L. Meena, FSL expert who conducted the Senior Scientific chemical examination of the viscera of Officer (Chemistry), deceased FSL, Rohini, Delhi PW18 Ms. Monika FSL expert who conducted the DNA Chakravarty, Senior examination of the exhibits of the case Scientific Assistant (Biology), FSL, Rohini, Delhi PW19 Sh. Subhash Chand The then Sarpanch of Tilpat village/ witness regarding illegal encroachment of panchayat land by one Raju Nath PW20 Sh. Nand Kishore Sarpanch of Tilpat Village/ witness regarding illegal encroachment of panchayat land by one Raju Nath PW21 ACP Ajay Kumar IO of the case Singh SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 9 of 35 The main witness of the case i.e., complainant turned hostile to the case of prosecution. However, all other witnesses duly supported the case of prosecution.
3.2 The prosecution has exhibited following documents/objects in support of its case:-
S. No. No. of Nature of Exhibits
Exhibits
1. Ex.PW3/A FIR
2. Ex.PW3/B Certificate u/s 65B Indian Evidence Act
regarding the genuineness of the contents of
FIR
3. Ex.PW3/C DD No. 18A (information received in PS
regarding incident)
4. Ex.PW3/D DD No. 24A (information received in PS
regarding admissions of injured in Apollo
Hospital)
5. Ex.PW4/A Statement of PW4 regarding identification
of dead body
6. Ex.PW4/B Dead body handing over memo
7. Ex.PW4/C Complaint of PW4 to SHO PS Badarpur
against Sanjay Nath and some other persons
of the locality
8. Ex.PW4/D Complaint of PW4 to DCP
SC No. 229/2017
FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 10 of 35
9. Ex.PW5/A Crime scene inspection report
10. Ex.PW6/A Statement of PW6 regarding identification
of dead body
11. Ex.PW7/A Copy of entry No. 3228 in Register No. 19
12. Ex.PW7/B Copy of entry No. 3229 in Register No. 19
13. Ex.PW7/C Copy of RC No. 63/21/17
14. Ex.PW7/D Copy of RC No. 62/21/17
15. Ex.PW9/A MLC
16. Ex.PW10/A Statement of complainant Rajiv Kumar
17. Ex.PW10/B Seizure memo of exhibits ie., blood from the
place of occurrence, earth control containing
blood, etc.,
18. Ex.PW10/C Arrest memos of both accused persons
Ex.PW10/D
19. Ex.PW10/E Personal search memos of both accused
Ex.PW10/F persons
20. Ex.PW10/G Disclosure statements of both the accused
Ex.PW10/H persons
21. Ex.PW10/I Sketch of the scissors
22. Ex.PW10/J Seizure memo of the scissors
23. Ex.PW10/K Seizure memo of the newspaper in which
the scissors were kept
24. Ex.P1 Plastic stick with blood soaked cotton
25. Ex.P2 One light brown colour plastic comb
26. Ex.P3 Bloodstained concrete lifted from the spot
27. Ex.P4 Concrete lifted from the spot
28. Ex.P5 Bloodstained concrete lifted from outside
SC No. 229/2017
FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 11 of 35
the shop
29. Ex.P6 Concrete lifted from outside the shop
30. Ex.P7 Scissors
31. Ex.P8 Newspaper
32. Ex.PW12/A Scaled site plan
33. Ex.PW13/A 5 photographs of the crime scene
collectively
34. Ex.PW14/A Seizure memo of the clothes of the deceased
in sealed condition which was handed-over
by the doctor
35. Ex.PW14/B Seizure memo of the sealed pulanda which
was handed-over by the doctor to PW14
36. Ex.PW14/C Seizure memo of blood samples of both the
Ex.PW14/D accused persons
37. Ex.PW15/A Statement of PW15 recorded u/s 161 CrPC
38. Ex.PW15/B Site plan
39. Ex.PW16/A Postmortem report of deceased
40. Ex.PW16/B Medical opinion regarding scissors being
weapon of offence
41. Ex.PW17/A Viscera examination report
42. Ex.PW18/A DNA examination report
43. Ex.PW18/B Allelic data of the exhibits referred in
Ex.PW18/A
4. EXAMINATION OF ACCUSED UNDER SECTION 313
SC No. 229/2017
FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 12 of 35
CrPC
4.1 After conclusion of prosecution evidence, the accused Raghuvar
Thakur and accused Navami Thakur were examined u/s 313 CrPC in which they denied the allegations and claimed innocence.
5. DEFENCE EVIDENCE 5.1 None of the accused persons led any defence evidence.
6. ARGUMENTS 6.1 Arguments were heard on behalf of the accused as well as Ld. Additional PP for the State. Ld. Counsel for accused persons has submitted that there is no incriminating evidence against any of the accused since the alleged eyewitness i.e., complainant Rajiv has not deposed against any of the accused. Rather he turned hostile to the case of prosecution and did not support the case of prosecution even in his cross-examination by the Ld. Additional PP. He did not even identify any of the accused during his entire examination. Ld. Counsel has submitted that testimonies of police witnesses associated with investigation are not trustworthy and are not supported by any public person despite the alleged presence of large crowd at the spot. He has argued that none of accused SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 13 of 35 had any motive to kill the deceased and rather father of the deceased had attributed such motive to various other persons. It is submitted that accordingly, both the accused are entitled to be acquitted.
6.2 On the other hand, Ld. Additional PP has argued that dehors the testimony of eyewitness there is sufficient evidence against the accused persons ie., their connection to the crime scene, presence of blood at the crime scene, recovery of bloodstained weapon at the instance of accused and confirmation of DNA of deceased on the weapon of offence. All these facts together prove the case of prosecution against the accused persons.
7. POINTS FOR DETERMINATION 7.1 I have considered the arguments of the parties and have perused the record.
7.2 The relevant provisions applicable in present case are reproduced herewith:-
Section 302 IPC provides - Punishment for murder --
"Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."
Murder is defined u/s 300 IPC. It provides - "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
SC No. 229/2017FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 14 of 35 (secondly) - if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
(thirdly)- if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
(fourthly)- if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
Culpable homicide is defined u/s 299 IPC. It provides
- "Whoever caused death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide".
Section 34 IPC provides - "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
7.3 The star witness of the case i.e. PW15 Rajeev Kumar has turned hostile to the case of prosecution. Thus, after considering the facts of the case and the arguments of the parties, following points for determination arise: -
1. Whether there is any incriminating evidence against the accused persons?SC No. 229/2017
FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 15 of 35
2. If so, whether such evidence is sufficient for convicting either or both of the accused for the alleged offence?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The main witness of the case is PW15 Rajeev Kumar. He has deposed "deceased Pawan was my brother-in-law (saala). I was running a band party in the name and style of Rajiv Nath Punjabi Bhangra Punjabi Dholl Party for last 5-6 years. Deceased Pawan was also working with me. On 27.01.2017, deceased Pawan came to me at H. No. 193A, Molarband Village, Sapera Basti, Badarpur, New Delhi. Again said, it was 29.01.2017. On that day, at about 12:30 PM, I was present at my above mentioned address. I heard a noise from outside of my house and immediately came out from my house. I went 200 meters away from my house where I saw that many public persons had gathered there. I saw that my brother-in-law namely Pawan was lying on the road. Blood was oozing from his body. I immediately took him to Apollo Hospital where doctor declared him as brought dead. Somebody called police at 100 number from my mobile phone. Police reached there. Police inquired me regarding the incident. I made signatures on complaint Ex.PW10/A. The said complaint is shown to the witness and after seeing the same, witness stated that he had put his signatures thereon at point A. I did not read over the contents of said complaint SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 16 of 35 Ex.PW10/A before signing the same." Even in his cross-examination by prosecution he has denied the contents of the complaint Ex.PW10/A. Though, he admitted his signatures on site plan, seizure memo of exhibits lifted from spot and the arrest documents of both accused but he denied having knowledge of their contents/ import. He even expressed his inability to identify the exhibits lifted from the spot or the accused persons who committed the offence. However, he deposed that he made call on number 100. Thus, nothing substantial has come in his cross-examination to prove that he was the eyewitness of the incident. Now, we shall proceed further to examine the remaining prosecution evidence.
8.2 There is no other eyewitness to the incident. However, there are certain crucial circumstantial facts proved by the prosecution. Same are discussed in the succeeding paras.
8.2 (a) Crime Scene :- PW5 ASI Kirti Kumar, PW8 Ct. Mukesh Kumar, PW10 ASI Yashpal, PW13 Photographer Rakesh, PW14 SI Rajeev and PW21 IO/ ACP Ajay Kumar have deposed that the crime scene was at/ near barber shop at H. No. 200, Sapera Basti. PW8 Ct. Mukesh Kumar also deposed that there was blood on the road as well as in the barber shop. Even PW10 ASI Yashpal has deposed that when he reached there on the call regarding stabbing injury they found some blood lying on the road and inside the shop of barber.
SC No. 229/2017FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 17 of 35 The photographer PW13 Rajesh has not only deposed about the blood inside and outside the barber shop but has also exhibited the photographs clicked by him. Said photographs are Ex.PW13/A and show the presence of blood inside the shop in question and a trail of blood on the road near the shop. Even PW14 SI Rajeev has deposed that blood was lying inside and outside said shop. The site plan Ex.PW15/B shows the point A inside the barber shop where the blood was found and also shows the point B in front of the shop where the blood was found. Even PW21 / IO has deposed that blood was found outside as well as inside the shop at H. No. 200, Sapera Basti. Thus, there is overwhelming evidence that the blood was found inside the shop at H. No. 200, Sapera Basti, Molarband, Badarpur.
8.2 (b) Physical evidence recovered from the crime scene :- It has been proved by the prosecution through the testimony of PW21/ IO ACP Ajay Kumar that exhibits were lifted from the road outside the shop and inside the shop. His testimony regarding the same is duly corroborated by PW14 SI Rajeev and PW10 ASI Yashpal. It has been proved through the testimony of said witness and the seizure memo Ex.PW10/B that said exhibits inter alia included
1. the blood lifted by cotton stick from the floor of the said barber shop, 2. one bloodstained comb found inside the shop. Said bloodstains on floor of shop and the bloodstained comb are visible even in the photographs Ex.PW13/A taken by photographer/ PW13. The prosecution has also proved seizure of blood sample SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 18 of 35 of deceased Pawan vide seizure memo Ex.PW14/B. The prosecution has proved the deposit of said exhibits with the malkhana of the police station vide Register No. 19 entries proved by the then MHC(M) PW7 HC Anil Kumar. The prosecution has further proved that the case exhibits in sealed condition were sent to the FSL on 25.04.2017 vide Ex.PW7/C. The report on said exhibits was given by PW18 Ms. Monika Chakarvarty. She deposed that on 25.04.2017, 15 sealed parcels with intact seals were received for examination and were marked to her for DNA examination. She has deposed that DNA Profiling (STR analysis) was performed on exhibits and it was found that the DNA profile generated from blood gauze of deceased was similar to the DNA profile generated from the source of exhibit No. 1 (cotton wool swab) from the the place of occurrence and exhibit No. 2 (comb) from the place of occurrence. Accordingly, the blood lifted from the floor of the shop and even from the comb found in the shop was found to be the blood of the deceased.
8.2 (c) The connection of the accused Navami Thakur to the crime scene :- PW1 Rishipal has deposed that "I know the accused Navami Thakur and in the year 2013, I had given a shop at the backside of my H. No. 200, Sapera Basti, Molarband Village, Badarpur, New Delhi to the accused Navami Thakur on a rent of Rs. 2,000/- per month. He used to reside in the same house at the 1st floor. I had got verification of my tenant Navami Thakur and police had made inquiry from me with regard to Navami Thakur. I had given the copy of SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 19 of 35 my application form for verification of the tenant submitted at PS Badarpur, to the IO of this case. The accused Navami Thakur was running a barber shop in the tenanted shop". The testimony of said witness is un-rebutted. Even in their examination u/s 313 CrPC none of the accused have disputed said fact. Thus, it stands established that the shop in question was :-
1. Under the use and occupation of accused Navami Thakur
2. He was running a barber shop from the same.
8.2 (d) Recovery of the weapon of offence and nature of the weapon :- Besides the aforesaid exhibits, the prosecution has led evidence to the effect that one bloodstained pair of scissors was recovered from a drawer in the aforesaid shop at the instance of accused Navami Thakur. PW21 / IO ACP Ajay Kumar has deposed that said scissors was recovered pursuant to the disclosure statement given by the accused Navami Thakur. His testimony regarding the same has been duly corroborated by PW10 ASI Yashpal and PW14 SI Rajeev.
The prosecution has relied on said recovery u/s 27 of Indian Evidence Act. However, the Court has its reservations regarding said recovery being relevant u/s 27 Indian Evidence Act because admittedly the same was effected from the crime scene itself i.e., the shop and that too from an unlocked drawer. Section 27 Indian Evidence Act deals with the discovery of fact which is known to accused only and could not have been traced by the police without the assistance of the accused. However, the scissors were recovered from the crime SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 20 of 35 scene itself which was within the knowledge as well as under the control of the police after the crime and therefore, said scissors could have been easily traced by the police if the shop was duly searched. Hence, such discovery does not fall u/s 27 of Indian Evidence Act. Nonetheless, the fact has been proved by the prosecution that one bloodstained scissors were recovered from the drawer of the shop being run by the accused Navami Thakur. Further, said scissors were found to be matching with the injury on the person of the deceased. PW16 Dr. Sandeep Ingale who conducted the postmortem of the deceased examined said scissors and vide his opinion Ex.PW16/B he opined that the injuries sustained by the deceased can be caused by the said scissors. His testimony is un-rebutted as he was cross-examined nil by defence. Even otherwise, his opinion regarding the alleged scissors match with the observations mentioned in the postmortem report Ex.PW16/A. He has opined in postmortem report (para k) that the injury was caused by pointed blunt edged weapon. Said opinion corresponds to the observations regarding the injury as it was found during postmortem that stab wound was with irregular and contused margins (para 5 of PM report). Further, as per sketch of the scissors Ex.PW10/I, it is pointed towards its tip. Most importantly, the scissors were sent for examination by the FSL expert along with other exhibits and as per the FSL expert PW18 Monika Chakarvarty, the DNA profile generated from the pair of scissors Ex.7 was found matching with the DNA profile generated from the blood gauze of the deceased Ex.12. Thus, ample evidence has been led by the prosecution to prove that the weapon of offence SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 21 of 35 was the scissors recovered from the shop of accused Navami Thakur.
It may be noted that though the alleged eyewitness PW15 Rajeev Kumar did not support the case of prosecution even in his cross-examination but he has deposed in his cross-examination by prosecution that he called the police at 100 number. He was cross-examined nil by the defence. As per prosecution, the information of the crime was received in the Police Station in reference to a PCR call. The relevant DD No. 18A has been duly proved as Ex.PW3/C. As per same, it was reported at 01:16 PM in the Police Station that one person has stabbed another with scissors. Thus, in the given situation, it stands proved that in the very first information regarding the incident, there was the reference of use of scissors as the weapon of offence.
It may also be noted that the scissors recovered from the shop is unmistakably the typical scissors used by the hair dressers / barbers and it is no coincidence that the accused Navami Thakur was running a barber shop at the crime scene.
8.2 (e) The presence of accused at the crime scene :- Though PW15 has not deposed as an eyewitness but he has deposed that on 29.01.2017, he was present at his H. No. 193A, Molarband Village, Sapera Basti, Badarpur and at about 12:30 PM, he heard a noise from the outside of his house and immediately came out from his house. He went 200 meters away from his house and saw many public persons gathered there and his brother-in-law Pawan was lying on SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 22 of 35 the road and blood was oozing from his body. Thus, he has given a time frame of the incident around 12:30 PM. Even the information (Ex.PW3/C) received by the police correspond to such time line as the police sprung into action at around 01:16 PM. The police officials who first reached at the spot soon after receiving the information were PW8 Ct. Mukesh Kumar and PW10 ASI Yashpal. Both of them have deposed that both of the accused were found present at the spot and were apprehended by the public persons and were even beaten by them. Even in their examination u/s 313 CrPC the accused persons have admitted that the police came and caught both of them. Nowhere during the trial it was disputed that accused Navami Thakur was not present at the spot i.e., his barber shop at such time.
8.3 Thus, in a nutshell following evidence has come against the accused Navami Thakur :-
1. The blood of deceased was found on the floor of the shop in question as well as on bloodstained comb found in the shop.
2. The shop in question was under the control and in use of accused Navami Thakur.
3. The accused Navami Thakur was running the business of barber from said shop.
4. Blood of deceased was found on a pair of scissors recovered from said shop.SC No. 229/2017
FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 23 of 35
5. Said pair of scissors was found to be the weapon using which injuries were caused to deceased.
6. The weapon of offence/ scissors Ex.P7 is the particular type of scissors used by barbers.
7. The accused Navami was found present at the crime scene soon after the incident.
8. All recoveries were made soon after the incident.
Said facts led to irresistible conclusion that deceased was stabbed with said scissors inside said shop only. Thus, in the given circumstances, when the deceased was stabbed in the shop of the accused Navami Thakur and that too by an instrument related to the profession of accused Navami Thakur and such instrument was also found in his shop soon after the incident, the circumstances leading to causing of injury to the deceased have to be explained by the accused u/s 106 of Indian Evidence Act. It provides - Burden of providing fact especially within knowledge - "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him" . It has been held by Hon'ble Supreme Court that though Section 106 IPC is not intended to relieve prosecution of its burden to prove the guilt of accused beyond reasonable doubt, but the Section would apply to cases where prosecution has succeeded in proving facts from which reasonable inference can be drawn regarding existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts offers any explanation which might SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 24 of 35 drive the Court to draw a different conclusion { Sucha Singh Vs. State of Punjab AIR 2001 SC (1436)} .
Though the charge-sheet of present case has been filed on the basis of ocular evidence of an eyewitness and not on basis of circumstantial facts only but after eyewitness turned hostile the case has turned into a case of circumstantial evidence. However, there have been instances where Section 106 Evidence Act have been used in such scenario also (ref. Ramprasad @ Ramsewak Yadav Vs. State of M. P. Crl. Apl. No. 2862 of 2011, date of decision is 20.12.2022 ) Further, Hon'ble Supreme Court took note of Section 106 of the Evidence Act in State of West Bengal Vs. Mir Mohammad Omar (2000) 8 SCC 382 and observed in para 31-33 of said judgment that :- "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognised by the law for the Court to rely on in SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 25 of 35 conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court shall have regard to the common course of natural events, human conduct etc., in relation to the facts of the case."
Thus, the aforesaid facts proved by the prosecution invariably lead the Court to draw the reasonable inference that accused Navami is responsible for causing injury to the deceased, unless he satisfies the Court with his explanation as to what else happened in his shop. Thus, the silence of the accused has to read against him in the given circumstances.
8.4 Ld. Counsel for accused has argued that the investigation regarding the recovery of alleged exhibits does not get support from any public witness and only police witnesses have deposed regarding the same. Further, the testimonies of police witnesses are inconsistent as PW8 Ct. Mukesh Kumar has SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 26 of 35 deposed that accused were brought to a police booth but the distance of said police booth from the spot has been given differently by different police officials. Further, PW8 Ct. Mukesh Kumar has deposed that he along with PW10 ASI Yashpal reached the spot from the police station after receiving the call about the incident. However, PW10 has deposed that he was on duty at Molarband as opposed to police station. Ld. Counsel has further argued that as per PW10 ASI Yashpal all police officials left the spot at about 06:30 PM. However, PW14 SI Rajeev has deposed that he along with IO/ SHO left the spot at about 08:15 PM. Even, IO/ PW21 has deposed in his cross-examination that he revisited the spot at 06:15 PM, the crime team left at about 06:45 PM and at about 8 PM he left the spot for the hospital. Accordingly, Ld. Counsel has argued that none of police witnesses can be believed regarding the alleged proceedings done at the spot. Ld. Counsel has also argued that none of the accused had any motive to kill the deceased and rather father of deceased suspected various other persons for the crime. Hence, said fact also shows that real culprit was somebody else and accused have been implicated in present case.
I have considered said arguments. Firstly, as far as lack of public witness regarding the collection of exhibits/ recovery of weapon is concerned, there is no cardinal principle that the testimony of police witnesses cannot be believed in absence of corroboration from public witnesses. It has been held by Hon'ble Supreme Court of India in Pramod Kumar Vs. State (GNCT) of SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 27 of 35 Delhi (AIR 2013 SC 3344) that "the witnesses from the Department of Police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony. There is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. If, in the course of scrutinizing the evidence, the court finds the evidence of the police officers as unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence". Thus, mere absence of public witnesses does not discredit the testimony of police officials. Here, other factors have to be noted i.e. the complainant was a public witness and during his cross- examination by the prosecution, he has admitted his signatures on Ex.PW10/D i.e. the lifting the exhibits from the place of occurrence. He has conveniently chosen to feign his ignorance as to when and where it was prepared. He admittedly reached the spot and even reported the crime to police and thus, it was natural for police to join him in the proceedings at the spot. Considering the circumstances of case, the Court is of the view that complainant has been won over by the accused. It may be noted that it is not the case of either of the SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 28 of 35 accused that they had enmity with any police officials related to the case or even otherwise so that police had any motive to implicate them falsely in the case and that too by planting evidence. PW10/ ASI Yashpal has deposed that many public persons gathered at the spot and he made inquiries from said persons but they did not disclose their whereabouts. He made inquiries from nearby shops but none agreed to join the proceedings. Court is not unaware of general apathy of the public persons to join the police proceedings unless they are themselves affected by or are interested in police proceedings. Hence, despite presence of large number of onlookers, it is believable that none would have joined the police proceedings. Further, all the police witnesses regarding the proceedings at the spot were cross-examined in detail and nothing substantial has come in their cross-examination to suspect that they deposed falsely regarding the incriminating facts against the accused.
As far as the reference to police booth pointed out by Ld. Defence Counsel is concerned, PW8 Ct. Mukesh Kumar has deposed that they brought the accused persons to the police booth. During his cross-examination PW8 Ct. Mukesh Kumar has deposed that the distance between the spot and the police booth is about 100 meters, whereas PW10 ASI Yashpal has deposed in his cross- examination that such distance was 500 meters. Further PW14 has deposed that such distance was about 100 meters. PW21 has deposed that in his cross- examination that such distance is about 350 meters. Ld. Counsel has argued that such variation shows that none of said witness had even visited the spot and are SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 29 of 35 not reliable. However, the Court is not convinced by said argument as there is not much relevance about the police booth in the given investigation. Rather, it appears that since the accused were beaten by the public persons they were removed from the spot to the police post initially so as to save them from the hostile crowd. Further the distance was told by the witness by approximation and there is not huge disparity about the distances so as to label the witnesses as untrustworthy in regard to proceedings at the spot. More so, no proceedings were conducted at the police booth.
As far as the location from which PW10 ASI Yashpal came to the spot, being the police station or elsewhere is concerned, PW8 Ct. Mukesh Kumar has deposed that he was on emergency duty with ASI Yashpal and on 01:16 PM on receiving the call about a person being injured with scissors near a barber in Sapera Basti, they reached at said shop. As per PW10 ASI Yashpal, he was present at Molarband at a distance 2-2.5 KM from the police station when he received Ex.PW3/C (call regarding the incident). The mere fact that one of the police officials who firstly reached at the spot was not present in the police station at the time of receiving the call does not render his testimony as untrustworthy. Had it been the case, that he was present at a far off place from the spot/ local police station then his testimony about reaching the place of incident promptly after the call would have been under suspicion. Thus, said argument does not create any reasonable doubt about presence of PW10 at the spot, after the call about the incident.
SC No. 229/2017FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 30 of 35 The penultimate defence argument is regarding the time at which the police officials left the spot. Both the IO and PW14 SI Rajeev have deposed that they left the spot second time at around 8/8:15 PM so there is no contradiction in their testimonies inter se regarding the said fact. As far as PW10 ASI Yashpal is concerned, he has stated that all police officials left the spot at about 06:30 PM. However, in his cross-examination the IO / PW21 has deposed that till the preparation of the seizure memo and the statement of complainant Rajeev, ASI Yashpal (PW10) remained present with him and he relieved ASI Yashpal at about 7 PM from the spot after recording his statement. Thus it appears that ASI Yashpal left the spot at around 6:30/7 PM. Accordingly, the testimony of PW10 ASI Yashpal has to be appreciated in the said context. Moreover, he was cross-examined after more than 2 years of incident and therefore, such anomaly in regard to the time at which the police officials left the spot can creep in after such gap of time. As pointed out earlier, the testimonies of all the police officials are in sync with each other and with the circumstantial facts and the aforesaid lapse does not discredit the case of prosecution qua the lifting of exhibits and seizure of scissors from the shop in question. Thus, none of the arguments raised by Ld. Defence Counsel could put a dent in the credibility of the witnesses regarding the affairs at the crime scene and the proceedings conducted therein.
The last leg of defence arguments is lack of motive and the allegations of father of deceased against various other persons. I have considered SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 31 of 35 said arguments. Firstly, motive is not a sine qua non for any offence. Secondly, as per charge-sheet, the allegations by father of deceased against other suspects were duly investigated and were found to be unsubstantiated. Further, IO has cited witnesses (PW19 and PW23) to the effect that there was a land grabbing complaint against the brother of father of deceased by the residents (suspects) of the village. Hence, the allegations of the father of deceased against innumerable persons do not help the cause of accused persons. Moreover, said allegations were on basis of suspicion only.
8.5 Thus, in view of aforesaid discussion, it stands proved against the accused Navami Thakur that he has to answer and explain how a fatal injury was suffered by the deceased in his shop and that too by the scissors used/ found in his shop. However, he has failed to do so by any means. Thus, by way of adverse inference it stands proved that it was accused Navami Thakur who caused the said injury to the deceased Pawan. As far as the accused Raghuvar Thakur is concerned, there is no evidence that he was the tenant in the shop in question nor there is any evidence that he was working as barber in said shop. Said facts have been mentioned only in the complaint Ex.PW10/A and the disclosure statements of the accused persons. However, the contents of the complaint could not be proved by the prosecution since the complainant turned hostile. As far as disclosure statements are concerned, same are inadmissible u/s 25 Indian Evidence Act.
SC No. 229/2017FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 32 of 35 8.6 Now the next question is whether the accused Navami Thakur is liable to be convicted for the offence u/s 302 IPC. However, there are certain additional facts which have to be noted for the said purpose. Firstly, in the entire prosecution evidence, there is no allegation of any motive with the accused Navami to kill the deceased Pawan. Secondly, there is no evidence regarding any preparation by the accused Navami Thakur to kill deceased Pawan. Thirdly, as per the case of prosecution it was a sudden quarrel. Fourthly, the scissors are not per se a deadly weapon. Fifthly, there was a single injury on the body of the deceased as per the MLC/ postmortem report. However, in case of intention to kill a person it is a rarity that a single injury is caused to the victim. Accordingly, from the said facts, Court has its reservations as to whether the accused Navami Thakur had any intention to kill the deceased Pawan or he attacked him with a specific intention to cause such bodily injury which he knew was likely to cause death of Pawan or he attacked Pawan with intention of causing particular bodily injury which is sufficient in ordinary course of nature to cause death or that attack by scissors was so imminently dangerous that it must, in all probability, would have caused death or fatal injury. Thus, Court has its reservations whether the situation squarely falls u/s 300 IPC or not. However, as per the MLC Ex.PW9/A, following injury was found on the body of deceased " anterior chest over left lateral board of sternum at around 7th / 8th intercostal space approx 1x0.5 cm". Further the postmortem report Ex.PW16/A shows that following ante SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 33 of 35 mortem injury was found on the body of deceased lower"A obliquely placed elliptical shape Stab wound with irregular and contused margins of size 1.5 x 1cm x cavity deep present on anterior aspect of left lower chest region, medial end is placed 2cm from midline, Lateral end is placed 8cm from left nipple, 122cm from left heel, The wound is directed upwards, backwards and laterally cutting the skin, subcutaneous tissue, underlying intercostal muscle and penetrating to the pericardial cavity and posterior wall of the right ventricle 1.5cm from apex. The whole track of the wound is blood stained. About 500 ml clotted blood is present in pericardial cavity and about 1.5 litre fluid mixed clotted blood is present in thoracic cavity". Therefore, it is clear that the scissors were struck in the area of chest where heart is located and it was struck with such force that it penetrated not only the skin but even the heart of the deceased. As reflected in the sketch Ex.PW10/I, the scissors in question were pointed towards its tip. Thus, in given circumstances, when a person hits the other person in his chest area with such scissors, though he causes only one stab injury, the act in itself is the one which is imbued with the knowledge that by such act the assaulter is likely to cause death of the victim. Thus, the situation is definitely covered under the ingredients of Section 299 IPC, punishable u/s 304 Part II IPC. Though, accused Navami Thakur has not been charged for said offence but same is a minor and cognate offence of Section 302 IPC and by virtue of Section 222 (1) CrPC, he can be convicted for the same. Accordingly, the Court is of the view that the accused Navami Thakur is liable to be convicted SC No. 229/2017 FIR No. 52/2017 State v. Navami Thakur & Anr. Page No. 34 of 35 for offence punishable u/s 304 Part II IPC.
9. CONCLUSION 9.1 In view of above said discussion, the accused Raghuvar Thakur is acquitted of the offence u/s 302/34 IPC charged against him. However, accused Navami Thakur is convicted for the offence u/s 304 Part II IPC.
(Announced in the Open Court Digitally signed by
on 25 th September 2023) SACHIN SACHIN SANGWAN
SANGWAN Date: 2023.09.25
15:14:53 +0530
(SACHIN SANGWAN)
Additional Sessions Judge, (FTC)-01,
South-East District, Saket Courts,
New Delhi/25.09.2023
SC No. 229/2017
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