Delhi District Court
State vs . Manas Kumar Pati on 13 May, 2014
State Vs. Manas Kumar Pati
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 81 of 2012
ID No. 02401R0520032012
FIR No. : 165/12
Police Station : Darya Ganj
Under Section : 302 IPC
State
Versus
MANAS KUMAR PATI
S/o Madan Mohan Pati
R/o Village: Sriampur
P.O Nahapda, District & PS: Jazpur,
Orissa.
.............Accused
Date of Institution : 03.11.2012
Date of Institution : 09.11.2012
Date of judgment reserved : 29.04.2014
Date of judgment : 13.05.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. Dinesh Sharma, Advocate, amicus curiae for the
accused
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State Vs. Manas Kumar Pati
J U D G M E N T :-
1. Briefly stated facts of prosecution case are that on June 30, 2012 HC Amar Pal was patrolling in the area of his beat and when he reached near Asaf Ali Park, Delhi Gate, he saw that one person was lying in injured condition below the statute of Asaf Ali. Bleeding was going on from his face. Blood was lying in huge quantity near him. It appeared that he was unconscious. Accordingly, he reported the matter to duty officer of PS Darya Ganj, who recorded the information vide DD No. 30A (Ex. PW6/A). The said DD was assigned to ASI Virender Kumar (PW16) who along with constable Monit and constable Jai Ram left for the place of occurrence. Intimation was also given to the SHO on phone, who also left for the spot.
(i) On reaching the spot, PW16 inspected the body; his face was towards sky, head was in north direction and legs were in South directions.
There was one injury mark at the left eyebrow of the deceased. Deceased was found in drunken condition as heavy smell of alcohol was coming. One big stone was lying near the spot having blood stains. One half bottle of liquor and one packet of namkeen were also found at the spot. Crime team was called, who inspected the place of occurrence. Photographs were taken.
(ii) On inspection of the spot, it appeared that deceased had sustained injury while in drunken condition and it appeared that he had fallen on the big stone in inebriated condition and sustained injury and due to influence of liquor, he could not call anyone for his help. After the inspection, body was sent to JPN hospital, Delhi and it was alleged that in SC No. 81/12 2 of 27 State Vs. Manas Kumar Pati the MLC also doctor did not suspect and foul play. Thereafter, dead body was got sent to mortuary and it was got preserved for 72 hours.
(iii) Exhibits were lifted from the spot and same were seized and sealed. Efforts were made to establish the identity of deceased as one police report and visiting card of a restaurant were recovered from the possession of deceased. No eye witness was found at the spot. Despite sincere efforts, identity of deceased could not be established.
(iv) Dead body was got sent for post-mortem and autopsy was conducted on July 7, 2012. After post-mortem, dead body was cremated as unclaimed. Post-mortem report was received on August 7, 2012 wherein doctor opined that death was due to cranio-cerebral damage, consequent upon blunt force impact to the head. All the injuries were ante-mortem in nature, caused by blunt force. Injury no. 1 and 2 were found sufficient to cause death in ordinary course of nature individually as well as collectively.
(v) On receipt of autopsy report, SHO made an endorsement on DD No. 30A and got lodged an FIR for the offence punishable under Section 302 IPC and took the charge of investigation.
(vi) It was alleged that there was a tattoo mark of 'Jagdish Parvati' on the left forearm of deceased. The police report that was recovered from the possession of deceased was made to police station Raiwala, Dehradun, Uttrakhand and the same also contained the address of Jagdish Chand Pandey but the address was not legible. Since constable Shiv Raj Singh belongs to Uttrakhand, he was asked to deploy his contacts to ascertain the identity of deceased.
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State Vs. Manas Kumar Pati
(vii) It was alleged that on August 9, 2012 one of the relatives of
the deceased named Anand Pandey came to Delhi to participate in the camp of Baba Ram Dev at Ram Lilla ground and he met with constable Shiv Raj who was posted there, thereafter he identified the photograph of deceased in the police station and disclosed that the name of deceased is Jagdish Chand Pandey resident of village Dhaul kanda Patti Romdanda, Tehsil and District Pithoragarh, Uttrakhand. He further told that deceased is the brother-in-law of his brother-in-law. Accordingly, his statement was recorded. Thereafter, HC Netra Pal was sent to his village where his wife Parvati and son Amit Pandey met him and they identified the deceased but stated that they had no concern with the deceased as he had never cared for them during his life time.
(viii) During the investigation, it was revealed that deceased was killed by one Manas. On August 13, 2012 Manas was apprehended from Iron Bridge, Darya Ganj on receipt of information from special informer. During investigation, accused Manas confessed his guilt. Statement of local persons were got recorded under Section 164 Code of Criminal Procedure. Accused was taken on police remand.
2. It was alleged that accused led the police party to Farman Hotel and Restaurant at Tawru, Haryana where accused was working till June 29, 2012 and in the evening, he along with deceased left for Delhi. It was alleged that accused came to Delhi along with the deceased as accused was going to donate his kidney. It was further alleged that while accused and deceased were consuming liquor at Asaf Ali Park, deceased in inebriated condition told the accused that he had taken money against his kidney from Sanjay Bihari. After hearing this, accused felt something fishy as earlier deceased had taken ` 5000/- from Sanjay Bihari against his SC No. 81/12 4 of 27 State Vs. Manas Kumar Pati kidney; but he never donated his kidney but deceased absconded with ` 5000/-. Accordingly, accused though that deceased had introduced him with some other party and he would get handsome money in lieu of his kidney, accordingly accused under the influence of liquor killed the deceased by giving a blow of heavy stone on his head and fled away.
3. After completing investigation, challan was filed against the accused for the offence punishable under Section 302 of Indian Penal Code (IPC in short).
4. After complying with the provisions of Section 207 Code of Criminal Procedure, case qua accused Manas was committed to the Court of Sessions on November 3, 2012. Thereafter, case was assigned to this Court on November 9, 2012, accordingly, case was registered as Sessions Case No. 81/12.
5. Vide order dated December 3, 2012, a charge for the offence punishable under Section 302 IPC was framed against the accused to which he pleaded not guilty claimed trial.
6. In order to bring home the guilt of accused, prosecution has examined following 20 witnesses:-
PW1 Mohd. Tarif, owner of Farman hotel
PW2 Vinod Kumar, material witness to prove the extra
judicial confession
PW3 Anand Pandey, formal witness, identified the
photograph of deceased
PW4 SI Dhan Singh, In-charge of crime team
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State Vs. Manas Kumar Pati
PW5 SI Mahesh Kumar, formal witness, draughtsman
PW6 HC Ajay Kumar, proved DD No. 30A
PW7 Const. Dinesh, formal witness, photographer
PW8 ASI Bodh Raj, duty officer, formal witness, proved the
FIR
PW9 HC Amar Pal, material witness,member of
investigating team
PW10 SI Dharmender, member of the investigating team
PW11 Const. Chander Parkash, formal witness
PW12 Mahesh Choudhary, material witness but turned
hostile
PW13 HC Netra Pal, MHC(M)
PW14 HC Jai Parkash, formal witness, deposited the
exhibits at FSL, Rohini
PW15 Const. Monit, member of investigating team
PW16 ASI Virender Kumar, first investigating officer
PW17 Dr. Vinod, proved the MLC of deceased
PW18 Insp. Ravinder Kumar, investigating officer
PW19 Dr. Suresh Chand, proved the autopsy report.
PW20 Dr. Kanak Lata Verma, Sr. Scientific officer, proved
the FSL report.
7. On culmination of prosecution case, accused was examined under Section 313 Code of Criminal Procedure wherein he denied each and every incriminating evidence led by prosecution and submitted that he has been falsely implicated in this case. However, he refused to lead any evidence in his defence.
8. Learned counsel appearing for the accused sagaciously SC No. 81/12 6 of 27 State Vs. Manas Kumar Pati contended that prosecution case is based on the circumstantial evidence and there is no ocular evidence to connect the accused with the alleged offence. It was contended that prosecution case is based on the testimony of PW1 and PW12 who claimed that they had seen the deceased in the company of accused before his murder and prosecution has also relied on the testimony of PW2 who claimed that accused had made an extra judicial confession before him. It was contended that no reliance can be placed on the testimony of PW1, PW2 and PW12 as they are not reliable witnesses. It was further contended that as per the testimony of PW1 he had seen the accused and victim together on June 29, 2012 whereas the murder had taken place on June 30, 2012, thus there was sufficient gap between the time when PW1 had allegedly seen them together and when the alleged incident had taken place. It was further contended that PW1 claimed that accused and deceased were working in his hotel but he failed to produce any documentary evidence to show that deceased had ever worked in his hotel. It was further contended that there is material contradiction between the testimony of PW1 and police official witnesses as PW1 deposed that prior to August 15, 2012 police had visited his hotel to make enquiry about deceased but at that time he did not identify the deceased as his photo was not clear in the mobile phone of police officials whereas police officials deposed that they never visited the hotel of PW1 prior to August 15, 2012 and they further deposed that they were not carrying the photograph of deceased and they had not shown the same to PW1. It was further contended that PW12 turned hostile on material aspects, hence his testimony is not reliable and no reliance can be placed on his testimony. It was further contended that PW2 in his examination-in-chief deposed that he cannot live without liquor and further deposed that when accused allegedly made the extra judicial confession before him, he was under the influence of liquor. It was contended that since the alleged extra judicial SC No. 81/12 7 of 27 State Vs. Manas Kumar Pati confession was made under the influence of liquor, no reliance can be placed on his testimony. It was further contended that PW2 had made substantial improvements in his testimony, thus no reliance can be placed on his testimony. It was further contended that from the testimony of police officials witnesses it becomes clear that they had manipulated the record and investigation was not conducted in accordance with law. It was further contended that there is inordinate delay in lodging FIR as initially prosecution case was that it was not a case of culpable homicide; rather it was case of accidental death and due to that reason no FIR was lodged and in this regard they had recorded the statement of one chowkidar but thereafter, they converted the accidental death case into a culpable homicide case and falsely implicated the accused in this case. It was argued that there is no cogent evidence to connect the accused with the alleged incident and he has been falsely implicated in this case. It was argued that PW12 in his deposition deposed that one Gopal had told him that injury was caused by the accused but prosecution failed to bring said Gopal in the witness box without any reasonable explanation. It was argued that the testimony of PW12 is based on the information provided by one unknown Gopal, thus no reliance can be placed on his testimony.
9. On the other hand, learned Additional Public Prosecutor refuted the said contentions by arguing that there is no reason to disbelieve the testimony of prosecution witnesses particularly PW1, PW2 and PW12. It was contended that PW1 and PW12 categorically deposed that they had seen the accused in the company of deceased prior to the murder; hence onus was upon the accused to explain how the deceased had sustained injury but he failed to adduce any evidence in his defence. It was further contended that PW2 categorically deposed that accused had made an extra judicial confession before him and there is no material to show that he SC No. 81/12 8 of 27 State Vs. Manas Kumar Pati is tutored or interested witness. It was thus argued that there is no reason to disbelieve the testimony of PW2. It was further contended that though there are some lapses in the investigation but swiftly added that the said deficiencies/lapses in the investigation are not sufficient to discard the prosecution case. Learned Additional Public Prosecutor fairly conceded that there was some delay in registration of the FIR but swiftly added that the said delay is not fatal to the prosecution case in any manner as prosecution has succeeded to bring home the guilt of accused beyond all reasonable doubts.
10. I have heard rival submissions advance by counsel for both the parties, perusal the recorded carefully and gave my thoughtful consideration to their contentions.
Contentions relating to extra-judical confession:-
11. Prosecution has set up a case that accused had made an extra judicial confession before PW2 Vinod Kumar on June 30, 2012 after committing the murder of Jagdish Pandey.
12. Pivotal question arises as to whether any reliance can be placed on the testimony of PW2 Vinod Kumar who claimed that accused had made extra judicial confession before him after committing the murder or not?
13. Before dealing with said issue, I deem it appropriate to refer the settle proposition of law over the evidentiary value of extra judicial confession. This issue was dealt with by the Hon`ble Apex Court in Sahadevan v/s State of Tamil Nadu, (2012) 6 SCC 403. Para 14 and 16 SC No. 81/12 9 of 27 State Vs. Manas Kumar Pati are relevant and same are reproduced as under:
14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-
judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
SC No. 81/12 10 of 27 State Vs. Manas Kumar Pati
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
(emphasis supplied)
14. In the light of above settled proposition of law, testimony of PW2 Vinod Kumar will be analysed.
15. It is manifested from the testimony of PW2 that he is fond of liquor and he cannot live without liquor. Similarly, it is also clear that at the time when accused allegedly made extra judicial confession, he was under
the influence of liquor. Though prosecution has set up a case that accused had made an extra judicial confession on June 30, 2012 after committing the murder of Jagdish Pandey, yet PW2 deposed that accused had made extra judicial confession on July 6, 2012 between 8 PM to 8.30 PM. After seeking permission from the Court, learned Additional Public Prosecutor put a leading question to the witness to seek clarification whether the extra judicial confession was made on June 30, 2012 or on July 6, 2012. Upon this, PW2 deposed that he did not remember the exact date when accused made the said extra judicial confession but it was Friday and further deposed that accused had made the disclosure statement about three months prior to August 15, 2012. Thus, as per the testimony of PW2 accused had made the extra judicial confession some time in the month of May which is contrary to the prosecution case. On checking of the calender, June 30, 2012 was Saturday whereas July 6, 2012 was Friday. Thus, it is not clear from the testimony of PW2 when accused made the alleged extra SC No. 81/12 11 of 27 State Vs. Manas Kumar Pati judicial confession.
16. It is admitted case of the prosecution that the statement of PW2 was recorded under Section 161 Cr.P.C on August 9, 2012 wherein he stated that police had recorded his statement on August 9, 2012. This shows that PW2 Vinod Kumar did not meet with the police officials prior to August 9, 2012. However, on the contrary, PW2 in his cross-examination deposed that police came to his house after about 10-15 days when accused came to his house. Since, prosecution claimed that accused visited the house of PW2 on June 30, 2012 and made the extra judicial confession before him, it means that police had visited the house of PW2 some time in mid July 2012. If it was so; question arises why police had not recorded the statement of PW2 when he claimed that accused had made the extra judicial confession before him. PW2 further deposed that during the said period, he used to visit his theiya regularly and police officials used to visit his house and also used to make enquiry from him about the accused and he also accompanied the police officials to search the accused. It means that PW2 participated in the investigation prior to August 9, 2012 also but prosecution claimed that PW2 met with the police first time on August 9, 2012, thus, the claim of prosecution is not supported by PW2.
17. In his cross-examination, PW2 deposed that he did not remember when Jagdish Pandey was killed but it was either Friday or Saturday prior to the month of Raksha Bandhan. Thus, according to PW2 deceased was murdered some time in July 2012 as it is common fact that festival of Raksha Bandhan falls in the month of August every year.
18. PW2 in his cross-examination deposed that he thought that SC No. 81/12 12 of 27 State Vs. Manas Kumar Pati accused had made the said confession under the influence of liquor, this shows that even PW2 was not sure whether accused was in his sense when he allegedly made the extra judicial confession before him.
19. Besides the above, PW2 also made substantial improvements in his deposition. Though he deposed that accused told him that he had committed a big mistake and accused also told him that one person Fauzi Pandey had planned to sell his kidney and for that Fauzi Pandey had taken ` 30,000/- from someone and he told the accused that he had no concern with him and asked him to go. But all these facts are not mentioned in his previous statement Ex. PW2/D1 that was made before the police. Thus, it becomes clear he had made substantial improvements in his deposition. Simultaneously, he also admitted that he did not state to the police that accused told him that some one had cheated him and said person had also given beating to him and also admitted that he did not state to the police that accused told him that he had repentance over his act and he wanted to surrender before the police and requested PW2 and others to accompany him. This further shows that PW2 had deposed certain new facts first time in the Court which he had not stated to the police in his previous statement.
20. It is pertinent to state that prosecution has failed to produce any corroborative circumstantial evidence which may support the claim of PW2 that accused had made the alleged extra judicial confession before him either on June 30, 2012 or July 6, 2012.
21. Applying the law laid down in Sahadevan's case (supra), I am of the considered opinion that no reliance can be placed on the testimony of PW2 wherein he claimed that accused had made an extra SC No. 81/12 13 of 27 State Vs. Manas Kumar Pati judicial confession before him. Thus, the testimony of PW2 is not helpful to the prosecution to prove the culpability of accused.
Contentions relating to last seen evidence:-
22. Prosecution has set up a case that PW1 had seen the accused and deceased together on June 29, 2012 when they left for Delhi from his hotel and thereafter, PW12 saw them together on June 30, 2012 in the park where deceased was murdered.
23. Before analysing the testimony of PW1 and PW12, I deem it appropriate to refer the settle proposition of law on the point of last seen evidence.
24. In case State of U.P. v. Satish 2005 (3) SCC 114 it was held by the Apex Court :
"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
(emphasis supplied)
25. In Ramreddy Rajeshkhanna Reddy v. State of A.P. 2006 (10) SCC 172 it held as under :
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State Vs. Manas Kumar Pati
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration".
(emphasis supplied)
26. A similar view was also taken in Jaswant Gir v. State of Punjab 2005 (12) SCC 438 and State of Goa v. Pandurang Mohite, AIR 2009 SC 1066.
27. In the light of above settled proposition of law, the testimony of PW1 & PW12 will be analyzed to ascertain as to whether their testimony will be helpful to the prosecution to prove the guilt of accused beyond the shadow of reasonable doubt or not.
28. Prosecution case is that accused and deceased were working in the dhaba/restaurant of PW1 Mohd. Tarif at Tawru, Haryana and prosecution has also set up a case that police met with PW1 first time on August 15, 2012.
29. However, PW1 demolished the prosecution version that police met him first time on August 15, 2012. He in his cross-examination categorically deposed that police also visited his hotel prior to August 15, 2012 for the purpose of investigation and at that time they were carrying the photographs of the deceased in their mobile phone but at that time he could not identify the deceased as his photo was not clear in the mobile phone.
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State Vs. Manas Kumar Pati
He further deposed that police did not make any enquiry from him as to whether any of his employees was missing from the job; nor he told the police that accused had left from his dhaba. However, he took the plea that he did not tell the same because accused had left from the dhaba after taking leave from him.
30. The testimony of PW1 to the extent that police had visited his dhaba prior to August 15, 2012 is corroborated by PW16 ASI Virender Kumar who deposed that some photographs of deceased were taken from digital camera and further deposed that on June 30, 2012 SHO had visited Farman Hotel, Tawru, Haryana and at that time SHO was carrying the photograph of deceased. But surprisingly PW18 Insp. Ravinder Kumar tried to conceal this fact from the Court and categorically deposed that they did not take any photograph of the deceased either from digital camera or from mobile phone and they did not send the photograph of deceased to Parveen. It is pertinent to mention here that mobile number of Parveen was found on the slip which was recovered from the possession of deceased and in order to ascertain the identity of deceased, PW18 had made a call to Parveen but he (Parveen) disconnected the phone. PW 18 further deposed that they were not carrying the photographs of deceased when they went to Farman Hotel on June 30, 2012 but simultaneously, also deposed that they went there to get any clue about the deceased and further clarified that they went there to verify whether any person was working there or any one of them knew any person on whose arm 'Jagdish Parvati' was written. It is pertinent to mention here that one visiting card of Farman hotel was also recovered from the possession of deceased and this was the reason that police officials visited Farman hotel on June 30, 2012 to ascertain the identity of deceased. If the purpose of their visit was to ascertain the identity of deceased, it was not clear how PW18 would SC No. 81/12 16 of 27 State Vs. Manas Kumar Pati ascertain the identity of deceased without showing the photographs of deceased to the staff of Farman hotel, thus, there is no hesitation to say that PW18 has made a false statement in the Court to the extent that they were not carrying photographs of deceased when they visited Farman Hotel on June 30, 2012.
31. PW1 further deposed that accused was working in his hotel in the name of Deepak Kumar and further deposed that his one friend also came to his hotel and his name was Pandey and he had also worked at his hotel for 4-5 days. He further deposed that both of them left from his hotel on June 29, 2012 stating that they were going to Delhi. Thus, PW1 claimed that not only accused but deceased was also working in his dhaba. He had also produced the attendance register of his employees which is Ex. PW1/A. In his cross-examination he admitted that name of Pandey is not mentioned in the said register, but swiftly added that his name is not mentioned because he was employed 4-5 days ago only. But simultaneously deposed that since he did not employ him at his dhaba, he did not ask for any proof of his residence. But he also deposed that Pandey was working in his dhaba on temporary basis. On the one hand, he did not have the proof of residence because he did not employ him but simultaneously deposed that he was working there on temporary basis. Assuming for the sake of arguments that he did not have his address proof as he was working on temporary basis but he could easily identify Pandey when his photograph was shown to him by the police on June 30, 2012 but he failed to identify him on a flimsy ground that the photograph was not clear as it is highly improbable that the police officials would not carry a clear photograph of deceased. PW16 in his deposition categorically admitted that the photographs were taken from the digital camera and it is common fact that the quality of the photograph taken from digital camera is SC No. 81/12 17 of 27 State Vs. Manas Kumar Pati comparatively better.
32. Even PW1 did not inform the police that two of his employees i.e accused and deceased had gone to Delhi. The reason furnished by him that he did not tell the same as accused Manas had left for Delhi after taking leave is also not convincing. Further , if deceased was a temporary employee, it is highly improbable that the employer would permit such a person to proceed on leave just after 4-5 days of his joining. Infact there is no cogent evidence on record to establish that deceased was working at the said dhaba. Prosecution has failed to examine any other employee of dhaba to show that deceased was working there. Thus, the testimony of PW1 is not sufficient to establish the fact that deceased was working at his dhaba at any point of time.
33. Assuming for the sake of arguments that deceased and accused left from his dhaba on June 29, 2012. Even then his testimony is not helpful to prosecution to prove the guilt of accused as there is a long gap between the period when both were seen together by PW1 and when the deceased was murdered. There was sufficient time to introduce any third person between the said period, thus, the testimony of PW1 is not helpful to prove the guilt of accused.
34. Another star witness of prosecution is PW12 Mahesh Choudhary. He in his examination-in-chief deposed that he was laying down in Sindhi Park on June 30, 2012 after consuming half bottle of liquor at about 11 AM and further deposed that between 11 AM to 11.30 AM deceased and accused came there and told him that they were going to Delhi Gate to consume liquor and asked him to accompany them but he refused. He further deposed that between 4 PM to 5 PM, he went to Delhi SC No. 81/12 18 of 27 State Vs. Manas Kumar Pati Gate in a park where statute is installed (Asaf Ali park) and saw that numerous persons were consuming liquor in the said park and further deposed that deceased and accused were also consuming liquor there. He further testified that though he joined them but he did not consume liquor and further deposed that since accused became annoyed and asked him to go, accordingly he left from there. Since, he did not depose on the line of prosecution, he was got declared hostile and was cross-examined. But he could not be derailed from the deposition made in his examination-in-chief. However, he admitted that when he reached Delhi Gate park, accused asked him to take liquor and thereafter they sat below the statute in the park located at Asaf Ali park, Delhi Gate and further admitted that accused had prepared three large pegs but he asked the accused to make a small peg for him. But in the mean time, deceased asked him sale tujhe haram ki sharab pine ki adaat par gai hai kabhi kharid kar pila diya kar. Upon this, hot words were exchanged between him and deceased and thereafter he left for Old Delhi after taking his half bottle. He also deposed that accused also asked him to go away and further testified that when he left, accused and deceased were consuming liquor. From his testimony, it becomes clear that numerous other persons were also consuming liquor in the park besides the deceased and accused. It is also clear that the hot words were exchanged between PW12 and deceased and not between accused and deceased. Since numerous persons were also consuming liquor in the park, there was every opportunity for any other person to join the deceased before the alleged incident.
35. In his examination-in-chief, PW12 deposed that Gopal told him at Chandni chowk that Manas had caused injury to Fauzi Pandey by giving blows of stone. In his cross-examination, he admitted that Gopal was not present in the park at that time. It means that someone had told to SC No. 81/12 19 of 27 State Vs. Manas Kumar Pati Gopal but no investigation was made to know who told Gopal about the said incident. Even police did not deem it appropriate to record the statement of Gopal. Nor Gopal was produced during the trial. He further deposed that Gopal told him that Fauzi Pandey had sustained injury on his legs and hands, which is contrary to the prosecution case because as per prosecution version, deceased had not sustained any such injury. Rather he had sustained injury on his head. He further deposed that after knowing this that Fauzi Pandey had sustained injury by the hands of accused, he did not go to see him; rather he deposed that on July 1, 2012 he left for Haridwar by train and returned to Delhi after 3-4 months and during the said period, he did not contact either with accused or deceased. He further deposed that since he came to know that police was searching him, he appeared of his own before the SHO, this shows that probably police was suspecting him.
36. From the testimony of PW12, it is clear that he had no personal knowledge about the fact that accused had caused any injury to the deceased. Gopal was not examined; nor he was present in the park. It is not clear who told Gopal about the fact that accused had caused injury to the deceased. It is further clear that numerous persons were consuming liquor in the park, thus there was sufficient opportunity for anyone to join the deceased before his death. Even police failed to examine any other persons who were consuming liquor in the park. On the contrary, initially PW16 had recorded the statement of one guard named Mohan Lal who told him that he had seen the deceased to consume liquor there with namkeen and he fell down several times and further deposed that said guard did not inform the police that he had seen any other person with the deceased at that time. It means that the deceased was alone when he was seen by the said guard. Even if we assume for the sake of arguments that accused and SC No. 81/12 20 of 27 State Vs. Manas Kumar Pati deceased were consuming liquor together between 4 PM to 5 PM as deposed by PW12, even then there was sufficient time and opportunity for any other person to join the deceased as the dead body was found at about 8.05 PM by HC Amar Pal. Period of three hours, in the facts and circumstances of the case, particularly when many other persons were also present in the park and consuming liquor, is quite sufficient for any person to join the deceased after leaving the accused.
37. Applying the law laid down in State of U. P. vs. Satish (supra), I am of the considered opinion that the testimony of PW1 and PW12 are not helpful to the prosecution to connect the accused with the alleged incident.
Contentions relating to the identity of the deceased:
38. Prosecution has set up a case that despite best efforts made by the police, identity of victim could not be ascertained prior August 09, 2012 when PW3 Anand Pandey identified his photograph in the police station. In this regard, the testimony of PW16 and PW18 are relevant. PW16, ASI Virender Kumar is the first investigating officer whereas PW18 Inspector Ravinder Kumar is the main investigating officer. PW16 deposed that after inspection of the dead body, two visiting cards of Farman Hotel were recovered from the pocket of his pant, one complaint regarding the missing of his mobile phone and service book was also found from his pocket and there was a seal of police station Raiwala Uttrakhand on the said complaint and the name of complainant was written as Jagdish Chand Pandey. 2-3 mobile phone numbers were also written on the back side of the said complaint. The complaint is Ex.PW9/D whereas visiting card is Ex.PW15/B. Since, it is admitted case of prosecution that 'Jagdish and SC No. 81/12 21 of 27 State Vs. Manas Kumar Pati Parvati' was engraved on his forearm, this shows prima-facie that the complaint recovered from the possession of deceased was belonged to him. PW18 took the plea that since the name of village on the said complaint was not legible, no staff was deputed to his village for the purpose of identification. He further deposed that when on August 09, 2012, PW3 Anand Pandey identified the deceased, staff was deputed to his village for the purpose of identification. Though his wife and son met at the village, but they stated that they had no concern with the deceased as during his life time, he never cared about them. I have perused the complaint Ex.PW9/D. Perusal of the same reveals that the seal of Police Station Raiwala, Janpath, Dehradun, Uttrakhand is quite legible. Village Dhaul Kanda is also legible. Thus, the plea of PW18 that the name of village was not legible is not correct. Assuming for the sake of arguments that police officials failed to read the name of village from the complaint; was not it is their duty to send staff to Police Station Raiwala to know about the person, who lodged the said complaint. Had the staff been deputed to Police Station Raiwala, it would have been known to them about the deceased/his village at the very first instance but no such effort was made.
39. Similarly, three mobile phone numbers were written on the back side of the said complaint, one number belonged to Jagga Singh, another number is belonged to Parveen and no name is mentioned in front of third mobile phone. Though PW16 and PW18 deposed that call was made to Parveen but Parveen disconnected the phone. PW16 deposed that since SHO had made a call on the mobile phone numbers which were written on the back side of the said complaint, he did not know who attended the phone and what they had said to SHO. PW18 also admitted in his cross-examination that he had made a call on the number mentioned on the back side of the complaint and the said phone was attended by one SC No. 81/12 22 of 27 State Vs. Manas Kumar Pati Parveen and Parveen told him that he would come Delhi to identify the dead body but he did not reach. He further deposed that when Praveen disconnected the phone and he did not send any police official to make inquiry of Parveen. Thus, it is admitted case of prosecution that Parveen had attended the call and he failed to appear before SHO for the purpose of identification. But no action was taken against said Parveen. No effort was made to trace out him and to seek clarification why he did not appear. This further shows that no sincere efforts were made to ascertain the identity of deceased.
40. From the testimony of PW16 and PW18, it becomes clear that police did not make sincere efforts to ascertain the identity of deceased and preferred to dispose of the dead body as unclaimed. Such type of lapses in such heinous crime are not appreciable in any manner.
Contentions relating to the collection of scientific evidence:
41. It is admitted case of prosecution that crime team was summoned at the spot and the crime team had taken the photographs of the spot and also filed the report Ex.PW4/A. As per report, no finger print expert/proficient accompanied the crime team. It is also admitted case of prosecution that when police reached there, liquor bottle and namkeen pouch were found there. PW4 in his cross-examination deposed that ASI Pawan, finger print expert accompanied him and he asked him to inspect the spot to pick up finger prints/foot chance print, if any. Since, no chance print was found, ASI Pawan did not file any report. However, he admitted that the name of ASI Pawan is not mentioned in his report. If efforts were made to pick up chance prints, it should have been mentioned in the crime inspection report but it is not so. It is highly improbable that finger print SC No. 81/12 23 of 27 State Vs. Manas Kumar Pati expression would not appear on the liquor bottle/glass/namkeen pouch in ordinary course. If no finger print was found thereupon, it means that someone had wiped out the finger prints from the said articles which prima- facie shows that some foul play had taken place with the deceased. In this regard, the testimony of PW18 is quite surprisingly. He deposed that though he asked the In-charge Crime Team to check finger prints from the half bottle and namkeen pouch but no finger print was found thereupon. Though he admitted that whenever an attempt is made by crime team to lift chance print from the spot, this fact is to be mentioned in the report irrespective of the fact that whether chance prints were found on the object or not. He admitted that this fact is not mentioned in the report of crime team. He further deposed that though he asked the in-charge to give report in this regard but he stated that no such report was required as no chance print was found. This explanation furnished PW4 and PW18 is not convincing. If they did so, it means that they did not know basic requirements of investigation. PW18 deposed that crime team was comprising of SI Dhan Singh, Const. Dinesh, and one more constable who was helper. He further deposed that crime team was not comprising of any finger print expert/proficient. Thus, there is inconsistency between the testimony of PW4 and PW18 as PW4 deposed that ASI Pawan, finger print expert was part of crime team whereas this fact was disputed by PW18. PW18 further deposed that SI Dhan Singh and Const. Dinesh made an attempt to lift finger prints. The testimony of PW4 to the extent that ASI Pawan Kumar, finger prints expert was also part of team does not inspire any confidence because his name is not mentioned in the column No. 17 (A) of Ex.PW4/A. This shows that no attempt was made to lift chance print from the said articles. This further shows that crime team In-charge SI Dhan Singh and investigating officer failed to lift important piece of evidence from the spot. Had they been able to find out finger print of culprit, it would have helped SC No. 81/12 24 of 27 State Vs. Manas Kumar Pati the prosecution to prove the guilt of offender but due to lapse on the part of PW4 and PW18, prosecution has been deprived from the said important piece of evidence.
Delay in lodging the FIR:
42. It is admitted case of prosecution that dead body was found on June 30, 2012 at 8.05 PM when HC Amar Pal was patrolling in the area. But the FIR was lodged on August 09, 2012 after receiving the post-mortem report. The reason furnished by prosecution to justify the delay in lodging the FIR is not convincing in any manner. It is projected by the investigating officer that since no foul play was found at the spot or in the MLC of the deceased, no FIR was lodged at that time.
43. As already discussed, it is admitted case of prosecution that no finger print was found on the liquor bottle and namkeen pouch. If there is any truth in the said version, it means that someone had cleaned the finger prints from the said object. This itself shows that there was some foul play on the part of offender otherwise there was no reason for non availability of finger prints on the liquor bottle and namkeen pouch.
44. PW16 in his cross-examination deposed that Mohan Lal, guard told them that deceased was consuming liquor with namkeen pouch and he fell down several times. Police had also recorded the statement of Mohan Lal under Section 161 Code of Criminal Procedure and same is Ex.PW15/DA wherein he stated that he was working as guard at DMRC. On June 30, 2012, his duty was from 8 AM to 8 PM. At about 8.15 PM, HC Amar Pal called him and made inquiry about the deceased lying at platform of Asaf Ali Statue and he told him that he had seen the said person SC No. 81/12 25 of 27 State Vs. Manas Kumar Pati consuming liquor from his half bottle and he was also having namkeen pouch. He had also seen that the said person took 2-4 sips of liquor and tried to move but used to fall down and sustained injury while trying to move in inebriated condition. After showing the photograph of the deceased, Court question was put to PW16 and after seeing the photograph, PW16 admitted that from the photographs of the dead body, it was clear that he had sustained injury on his forehead near eye brow and bleeding was going on from his ear and nose and it was also clear that face of deceased was towards sky. Thereafter, it was asked would he still say that he failed to assess that it was not a case of culpable homicide. Upon this, he told that SHO asked him to wait for the result of post-mortem. However, he admitted that there was no need to wait for the result to register an FIR for culpable homicide. Though PW18 in his cross- examination admitted that since no finger prints were found on the liquor bottle and namkeen pouch, he presumed that finger prints were removed by someone from the liquor bottle and namkeen pouch. When a court question was put to him; whether after knowing this fact did he not realise that it was a case of culpable homicide? PW18 said "No".
45. If deceased would have sustained injury by falling on the road as PW16 and PW18 believed, the face of deceased should be towards ground but it was not so. This prima-facie shows that someone had hit on his forehead. Further, in that eventuality there should be no distance between him and the stone, but there is some distance between the said stone and the deceased as reflected in the photographs. From the photographs, it is clear that there is blood stain marks on the said stone whereas huge blood was found near the dead body. It is just impossible that after sustaining injury at the stone, deceased of his own came on the plat form and laid facing towards sky. From the photographs, it is apparent SC No. 81/12 26 of 27 State Vs. Manas Kumar Pati that someone had hit on his forehead and fled away after throwing the stone nearby him. Despite all these facts available on record, investigating officer preferred not to register an FIR on flimsy ground that one guard told that he had seen accused in inebriated condition and he sustained injury by falling in inebriated condition. Such type of lapses in such a heinous crime are not appreciable in any manner. This shows insensitivity on the part of investigating officers.
Conclusion:
46. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused beyond the shadow of all reasonable doubts, thus I hereby acquit the accused Manas Kumar Pati from the charge of offence punishable under Section 302 IPC.
Announced in the open Court
on this 13th day of May, 2014 (PAWAN KUMAR JAIN)
Additional Sessions Judge-01
Central district, Tis Hazari, Delhi
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