Delhi District Court
The State vs 1. Ravi @ Bauna on 29 April, 2014
FIR no. 484/2008
D.O.D 29.4.2014 P.S Narela
u/s 302/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 118/14
UID NO . : 02404R0054692008
FIR no : 484/2008
P. S : Narela
u/s 302/34 IPC
The State versus 1. Ravi @ Bauna
S/O Bharat Singh
R/O Jhimmar Mohalla Village Tikri
Khurd, P.s Alipur , Delhi.
2. Deepak @ Ganja
S/o Sh Mahaveer Singh
R/O Jhimmar Mohalla Village Tikri Khurd,
P.S Alipur , Delhi.
Date of committal to session court : 20.04.2009
Date of argument : 29.04.2014
Date of order : 29.04.2014
SC No. 118/14 State vs Ravi @ Bauna etc (Page 1 of 26 )
FIR no. 484/2008
D.O.D 29.4.2014 P.S Narela
u/s 302/34 IPC
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that:
a) During the year 2008 , Pradeep (deceased) was working in a factory at A- 260, DSIDC Narela, as a chowkidar. On the intervening night of 29/30.10.2008, one Gajender (PW11) , who was also working as Chowkidar at plot no. 305, DSIDC Narela , saw that on 80 foota road , leading towards Raja Harishchandra hospital chowk to GTK Road(spot) said Pradeep was grappling with three boys and was calling for help. On hearing this Gajender Singh ( PW11) alongwith 2-3 boys namely Manoj (PW14) , Vijay and Bhojraj (PW20) reached there but by that time, said three boys who were grappling with Pradeep had already left from there. Pradeep (deceased) also chased those boys and caught one of them at a little distance .
Gajender(PW11) , Manoj(PW14) , Vijay and Bhojraj (PW20) also followed him.
b) The boy who was caught hold by Pradeep made a call to his other associates stating that he has been caught by Pradeep and he will be killed by Pradeep and made a request to save him. His two associates namely Ravi @ Bauna and Deepak @ Ganja( both the accused persons) reached there and killed Pradeep ( deceased ). Thereafter , one of the assailant( JCL Prem @ Parveen ) SC No. 118/14 State vs Ravi @ Bauna etc (Page 2 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC was caught hold by the public but two other assailants succeeded to flee. Information was given to the police. PCR Van alongwith S.I Dayanand (PW17) reached there and came to know that injured Pradeep has already been removed to the hospital by CATS Ambulance. It was also revealed that JCL Prem @ Praveen, who had been apprehended by the public , had been taken to the factory and there he was given beatings by the public.
c) S.I Dayanand removed the JCL Prem @
Praveen to the hospital. Dr. Majhar Hussain (PW2)
examined the Pradeep (deceased) brought by Jagdish
(PW1) of CATS Ambulance and on local examination he noticed one deep penitrating wound in left sixth intercoastal space around 2 cm X.5 cm in middle axiliary line directed upward and medially and the deceased Pradeep was declared brought dead.
d) On receipt of the message through wireless , Inspector Raj Singh (PW7) IO of the present case reached at the spot and there he met constable Aji V.K(PW23) . He came to know that injured has already been shifted to the Raja Harish Chander Hospital. Crime team was called . Constable Manish(PW16),who was working as Photographer with Crime Team, took photographs of the spot. IO Inspector Raj Singh (PW7) lifted exhibits from the spot i.e blood stained concrete soil from two places and earth control from two places . He sealed all the aforesaid exhibits through separate sealed pullandas with the seal of SC No. 118/14 State vs Ravi @ Bauna etc (Page 3 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC RS and one plastic chappal of black colour was also seized from the spot . Thereafter, PW7 alongwith his staff reached at the hospital and there found that injured Pradeep has been declared brought dead .
e) On 31.10.2008, Inspector Bakshi Ram (PW21) got conducted postmortem on the dead boy of deceased Pradeep at BJRM hospital and after postmortem, Dead body of deceased Pradeep was handed over to Shailash Kumar (PW9) brother of the deceased . During the investigation , statement of public witnesses Gajender (PW11) ,Manoj (PW14) and Bhojraj (PW20) were recorded, who claimed to have witnessed the incident.
f) On 5.11.2008 , on receipt of secret
information , accused Deepak @ Ganja and Ravi @
Baunawere arrested. Their personal search was conducted and disclosure statement were recorded.
g) As per the story of prosecution , pursuant to the disclosure statement of co-accused Ravi @ Bauna , he got recovered weapon of offence i.e Nihani from the bushes on 80 foot road, leading towards GT Road from DSIDC area . Said Nihani was having spots probably of blood which was used by accused persons for killing Pradeep ( deceased). The said Nihani was sealed and seized by the IO.
h) After completion of investigation , accused
SC No. 118/14 State vs Ravi @ Bauna etc (Page 4 of 26 )
FIR no. 484/2008
D.O.D 29.4.2014 P.S Narela
u/s 302/34 IPC
persons were chargesheeted for offence u/s 302/34 IPC.
2. Vide order dated 27.1.2009, Ld MM took the cognizance of the offence and subsequently, since the offence u/s 302 IPC was exclusively triable by the court of sessions, therefore vide order dated 06.04.2009, case was committed to the court of sessions.
3. Vide order dated 20.5.2009 , ld predecessor of this court decided the charge and accordingly, accused persons were charged for the offence u/s 302/34 IPC to which they pleaded not guilty and claimed to be tried.
4. Here it is pertinent to mention that vide order dated 3.10.2012, accused Prem @ Praveen was declared Juvenile and the trial against him was transferred to Juvenile Justice Board. At that time the case was at the stage of prosecution evidence.
5. In order to prove its case, prosecution has examined as many as twenty three witnesses.
6. Public witnesses examined by the prosecution SC No. 118/14 State vs Ravi @ Bauna etc (Page 5 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC are being detailed summarily as under:
i) PW8 Chander Bhushan: He is the father of deceased Pradeep. He identified the dead body of the deceased vide ExPW8/A.
ii) PW9 Shailaish Kumar : He is the brother of the deceased . He also identified the dead body of the deceased Pradeep and dead body of the deceased was handed over to him vide ExPW8/B.
iv) PW11 Gajender Singh :- As per the story of the prosecution he was eye witness but he has not supported the case of the prosecution and turned hostile. He could not identify the accused Ravi @ Bauna and Deepak @ Ganja before the court. He even denied of having been a witness to the recovery of weapon of offence at the instance of accused Ravi @ Bauna.
Since he was resiling from his previous statement he was cross examined at length by ld Adll.PP for the state.
v) PW14 Manoj Kumar : As per the story of prosecution he is also the eye witness but he has also not supported the case of the prosecution and turned hostile. He was also cross examined by the ld Adll PP for the state .
vi) PW20 Bhojraj : He is another alleged eye witness who has also not supported the case of the prosecution and completely turned hostile. He was also cross examined by the ld Adll.PP for the state .
7. Following police officials were examined as prosecution witnesses:-
i) PW 3 Constable Sant Ram :- On 5.11.2008 , he alongwith Constable Satbir(PW4) was with IO Inspector Raj Singh (PW7) during the investigation.
He is a witness to the arrest of the accused persons Ravi @ Bauna and Deepak @ Ganja and their disclosure statements. He is also witness to the recovery of weapon of offence at the instance of the accused Ravi @ Bauna from 80 foota road from the bushes opposite side of CNG filing station . He deposed that weapon of offence i.e Nihani was wrapped in cloth pullanda and was sealed with the seal of R.S. and was taken into possession vide memo SC No. 118/14 State vs Ravi @ Bauna etc (Page 6 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC Ex PW3/C.
ii) PW 4 HC Satvir Singh :- This witness has deposed on the lines of Constable Sant Ram (PW3) . He is also a witness to the arrest and disclosure statements of the accused persons. He deposed that accused Ravi @ Bauna led the police party to 80 foota road on the front side of CNG filling station and from the bushes he got recovered one sharp edged 'Rampi' which was having blood stains. The said Rampi was seized vide memo ExPW3/C. He identified the said 'Ranpi ' as ExP-1 during his examination.
iii) PW5 HC Satish Kumar : He was posted as Duty officer . He proved the registration of FIR vide memo ExPW5/A and he made endorsement ExPW5/B on the original rukka . He also proved the registration of DD no.43 A vide ExPW5/C .
iv) PW7 Inspector Raj Singh :- He is the IO . He deposed that on 29.10.2008 , on receipt of message through wireless reached at the spot i.e 80 foota road , leading towards Raja Harish Chand Hospital chowk to GTK Road and met constable Aji V.K(PW23) and came to know that injured has already been shifted to the Raja Harish Chander Hospital. He called the crime team on the spot. Photographs of the dead body and the spot were taken by Constable Manish(PW16) who was working as Photographer with Crime Team. He lifted exhibits from the spot i.e blood stains concrete soil from two places and earth control from two places exhibited as ExPW7/A , ExPW7/B, ExPW7/C and ExPW7/D respectively and sealed all the aforesaid exhibits through separate sealed pullandas with the seal of RS and one plastic chappal of black colour was also seized from the spot vide ExPW7/E. Thereafter, he alongwith his staff reached at the hospital and there found that injured Pradeep has been declared brought dead. Doctor handed over the blood stained shirt of the deceased to him (PW7) which was sealed with the seal of RS and seized vide memo ExPW7/F. He arrested the accused persons namely Ravi @ Bauna and Deepak @ Ganja vide memo's ExPW11/D and ExPW11/E respectively, recorded their disclosure statement ExPW3/B and ExPW3/A respectively. He deposed that accused Ravi @ Bauna got recovered the Nihani , weapon of offence. He prepared the sketch of that Nihani ExPW11/C and the said Nihani was seized vide memo ExPW3/C. He deposited the case property with the MHC(M) and carried out the further routine investigation qua the present case.
SC No. 118/14 State vs Ravi @ Bauna etc (Page 7 of 26 )
FIR no. 484/2008
D.O.D 29.4.2014 P.S Narela
u/s 302/34 IPC
v) PW10 HC Ashok Singh : He was the DD writer on 29.10.2008 at P.S Narela . He proved the DD no. 43 A ExPW10/A . This DD was regarding the message that a person has been stabbed and was lying on the spot.
vi) PW12 HC Virender Kumar : During the relevant time, he was working as MHC(M) at P.S Narela . He got deposited case properties and results on various dates.
vii) PW13 Mohd Yamin : He is another formal witness who deposited the exhibits to FSL Rohini vide RC no. 12/21/2009.
viii) PW 15 S.I Manohar Lal : He is a formal witness who prepared scaled site plan ExPW15/A of the spot.
ix) PW16 Ct. Manish : He was working as Photographer with Crime Team and took photographs ( numbering 11) which are ExPW16/A1 - ExPW16/A11 and corresponding photographs ( numbering 9) are from ExPW16/B 1 to ExPW16/B9.
x) PW17 S.I Dayanand :- He was posted at PCR Van no. Libra 71 as a Incharge and on receipt of information that one person was lying in injured condition at near GT road near Satyawadi Raja Harish Chand Hospital, reached there in PCR Van and came to know that injured has already been removed to the hospital.
xi) PW18 ASI Vijay Kumar : He is also another formal witness who was handed over a sealed parcel alongwith the sample seal of SRHC Hospital. He handed over the same to the IO which was seized vide ExPW11/C by the IO.
xii) PW19 Retd S.I Mahendra Singh : He is the witness who on receipt of aforesaid DD no.43 A ExPW10/A ( ExPW5/C) on 29.10.20908, alongwith constable Aji V.K (PW23) reached at the spot of incident i.e 80 foota road, near Satyawadi Raja Harishchander Hospital and found blood mark on two places on the road going towards GT Road to T Point. He also found one black colour slipper(Chappal) there and he came to know that injured has already been shifted to SRHC Hospital. He left Ct. Aji V.K at the spot and went to the hospital. He met one Gajender Singh (PW11) in the hospital and recorded his statement ExPW11/A and he made the endorsement on the said statement and prepared rukka ExPW19/A and it was handed over to constable Satbir (PW4) for registration of FIR.
xiii) PW 21 Inspector Bakshi Ram: On 31.10.2008 , he got conducted postmortem on the dead boy of deceased Pradeep at BJRM hospital and dead body of the deceased , after postmortem, was handed over to Shailesh Kumar SC No. 118/14 State vs Ravi @ Bauna etc (Page 8 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC vide ExPW8/B . After postmortem , the dead body of the deceased Pradeep, Doctor handed over the sealed parcel sealed with the seal of BRJM Hospital alongwith sample seal of BJRM hospital to him which was seized vide memo ExPW21/B.
xiv) PW22 Const Vikas Mann : He is formal witness who took sealed parcel containing weapon of offence to BJRM hospital vide RC no. 305/21/2008 and deposited the same to CMO Dr. R.P Singh for subsequent opinion.
xv) Const Aji V.K : He is the witness who was the IO S.I mahender Singh during initial investigation.
Medical and Scientific evidence.
1) PW1 Jagdish Chander : He was working with CATS Ambulance during the relevant time . On the intervening night of 29/30.10.2008, on receipt of the information from the PCR that one person in injured condition is lying at 80 foota road , DSIDC Narela, Corner of Satyawadi Raja Harishchander Hospital, he reached there and removed the deceased Pradeep to Raja Harish Chander Hospital .
ii)PW 2 Dr. Majhar Hussain .: He had examined deceased Pradeep who was brought dead by CATS Ambulance in the Raja Harish Chander Hospital . He opined that on local examination there was one deep penitrating wound in left sixth intercoastal space around 2 cm X.5 cm in middle axiliary line directed upward and medially. He prepared the MLC of deceased Pradeep ExPW2/A.
iii) PW7 Inspector Raj Singh : During the examination of this witness, the postmortem report of the deceased was not disputed by the accused persons and their counsel and the same was given Exhibit ExPW7/I. The weapon of offence was sent for subsequent opinion to Dr. R.P Singh, Autopsy Surgeon . That report was also not disputed by the accused person and the same was given ExPW7/L during the examination of this witness who is the IO of the present case.
iv) PW 6 Ms Shashi Bala: She is Senior Scientific Officer , FSL Rohini who carried out biological examination and gave her report ExPW6/A. She also carried out serological examination of exhibits and gave her report ExPW6/B. SC No. 118/14 State vs Ravi @ Bauna etc (Page 9 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC
8. Thereafter prosecution evidence was closed and statement of accused persons u/s 313 Cr. PC were recorded . During the statement recorded u/s 313 CrPC , accused persons have denied the allegations however, they did not opt to lead any evidence in their defence.
9. I have heard the ld Addll P.P for the state and Ld counsel for the accused persons. I have also perused the record very carefully.
10. Both the accused persons are facing trial on the allegations that on 29.10.2008 at about 09:15 pm at 80 foota road they both in furtherance of their common intention caused death of Pradeep by stabbing with sharp edged weapon i.e Nihani ExP-1. Initially , the case of the prosecution was based upon the eye witnesses i.e Gajender (PW11) , Manoj (PW14) and Bhojraj (PW20) . None of these witnesses have supported the case of the prosecution. They all turned hostile and they were cross examined at length by the ld Adll P.P for the state.
11. Public witness Gajender (PW11) has deposed that in the year 2008 he was working as a Chowkidar in a SC No. 118/14 State vs Ravi @ Bauna etc (Page 10 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC factory at A- 260 DSIDC Narela . On 30.10.2008( incident is of dated 29.10.2008) at about 9:15 pm he was standing outside the said factory and saw that one boy namely Pradeep , who was also doing chokidari at factory plot no. 315, Narela, Delhi, was grappling with three other boys and Pradeep was calling for help. On hearing this, he alongwith 2-3 boys namely Manoj (PW14) , Vijay and Bhojraj (PW20) reached there but by that time, said three boys, who were grappling with Pradeep had left from there. Pradeep (deceased) also chased those boys and caught one of them at a little distance and they also followed him. The boy who was caught hold by Pradeep made a call to his other associates stating that he has been caught by Pradeep and he will be killed by Pradeep and made a request to save him. His two associates reached there and killed Pradeep ( deceased ). Thereafter , one of the assailant( JCL Prem @ Parveen) was caught hold by the public but two other assailants succeeded to flee.
12. Although, PW11 Gajender admitted his signatures on his statement ExPW11/A but deposed that he can not identify the boy who was caught hold by public persons at the spot and he could not identify him as it was SC No. 118/14 State vs Ravi @ Bauna etc (Page 11 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC dark. He further deposed that he has not seen the three assailants and he could not identify the two other assailants who fled away as it was dark. He further deposed that he does not know as to when other assailants were apprehended by the police.
13. PW11 Gajender deposed that he has signed some papers in the presence of police officials but he does not know the contents of those papers. He admitted his signatures on various memo's prepared by the police officials but during his cross examination by ld Addl.PP for state he denied everything. He was confronted with the statement ExPW11/A but still he confined himself that he is not the eye witness. He denied of having joined the investigation on 5.11.2008 with the police or his statement was recorded on that day. The contents of the statement ExPW11/A were put to this witness in the form of suggestions which all were denied by him. 2-3 questions were asked from this witness by the Ld Addl. APP . For the sake of convenience same are being reproduced as follows:
Q. Can you identify the accused persons present in the court today?( attention of this witness has been drawn towards the accused persons) SC No. 118/14 State vs Ravi @ Bauna etc (Page 12 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC Ans: No . There was darkness at that time.
Q. Can you identify the accused who was apprehended by the public persons at the spot.
Ans: No. Q. I put it to you that the accused Ravi , Deepak and Prem @ Praveen are the accused persons who committed the murder of Pradeep/chowkidar (since deceased ) on 29.10.2008, it is accused Prem @ Praveen who was apprehended by the public persons at the spot and other two were apprehended by the police in my presence on 5.11.2008 ( the accused have been pointed out by their names while putting this question to the witness?
Ans. It is wrong.
14. PW11 Gajender even could not identify the T shirt and chappal of the deceased and the weapon of offence, which was allegedly taken into possession at the instance of accused Ravi @ Bauna. From the testimony of PW11 Gajender , it is crystal clear that he has not supported the case of the prosecution to the effect that he had witnessed the incident. Same is with the testimony of Manoj (PW14) and Bhojraj (PW20) . They have also not supported the case of the prosecution. They could not identify the accused persons and the weapon of offence i.e Nihani during their examination.
15. PW14 Manoj, denied of having signed any documents including recovery memo of weapon of offence SC No. 118/14 State vs Ravi @ Bauna etc (Page 13 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC ExPW3/C. Both these witnesses namely Manoj (PW14) and Bhojraj(PW20) deposed that they were not present at the spot and they have not witnessed the incident, therefore, as far as case of the prosecution based on eye witnesses are concerned , it remained unproved.
16. That being so, now the case of prosecution rests upon the circumstantial evidence. It is well settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
17. The legal position regarding the standard of proof and the test which the circumstantial evidence must satisfy is well-settled by a long line of decisions of Hon'ble Supreme Court. It is unnecessary to burden this judgment by making reference to all such decisions. I may content with reference SC No. 118/14 State vs Ravi @ Bauna etc (Page 14 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC to decisions in Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116, wherein Hon'ble Supreme Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
18. In the case in hand the prosecution in order to prove its case mainly relied on the following circumstances:
SC No. 118/14 State vs Ravi @ Bauna etc (Page 15 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC
i) The death of Pradeep was homicidal in nature;
ii) The weapon of offence was recovered at the instance of the accused Ravi @ Bauna and it same was used for committing the murder of Pradeep (deceased).
THE DEATH OF PRADEEP WAS HOMICIDAL IN NATURE
19. It is not in dispute that PW1 Jagdish Chander , who was working with CATS Ambulance had removed the Pradeep deceased to Satyawadi Raja harishchander Hospital , Narela. Dr. Majhar Hussain (PW2) who was posted at said hospital, examined Pradeep (deceased) and on local examination he noticed one deep penetrating wound in left sixth inter coastal space around 2 cm X.5 cm in middle axillary line directed upward and medially. He prepared the MLC of the deceased Pradeep ExPW2/A. PW2 Dr. Majhar Hussain deposed that Pradeep was declared brought dead on clinical findings and as per the report or ECG. PW2 Dr. Majhar Hussain has not been cross examined by the accused persons and in this regard SC No. 118/14 State vs Ravi @ Bauna etc (Page 16 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC his testimony has gone unrebutted and unchallenged.
20. Moreover , the postmortem on the body of the deceased Pradeep was conducted on 31.10.2008. As stated herein above accused persons have not disputed the postmortem report and same was given ExPW7/I. Doctor R.P Singh conducted the postmortem on the body of deceased Pradeep and opined the cause of death is Hemorrhage ,shock due to injury to beat produced by blunt penetrating object with cutting tip and injuries in nature were sufficient to cause death in ordinary cause of nature. This has also not been disputed by the accused persons.
21. As per the subsequent opinion( Ex.PW7/L) , the injuries mentioned in the Postmortem report (ExPW7/I ) on the body of deceased Pradeep were possible by the weapon i.e Nihani ExP-1 or by similar such type of weapon. Accused persons have not disputed the medical evidence. Accepting the medical evidence, it is clear that Pradeep suffered a homicidal death.
The weapon of offence was recovered at the instance of the accused Ravi @ Bauna and it same was used for SC No. 118/14 State vs Ravi @ Bauna etc (Page 17 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC committing the murder of Pradeep (deceased).
22. As per the story of prosecution there are five witnesses to the recovery of weapon of offence i.e Inspector Raj Singh (PW7), constable Sanjay (PW3) , HC Satbir (PW4), public witnesses Gajender (PW11) and Manoj (PW14 ).
23. Inspector Raj Singh (PW7) deposed that on 5.11.2008, on receipt of secret information about presence of accused Ravi @ Bauna and Deepak @ Ganja in the area of Narela , he summoned two constable namely Satbir (PW4) and Sant Ram from the beat to join him . He deposed that he also tried to join some of the public witnesses but none of them agreed and left the spot without disclosing their names , addresses etc. He summoned Gajender (PW11) and one Manoj (PW14) to join the investigation and thereafter they all reached near Mansa Devi Mandir and on the pointing out of secret informer , both the accused persons namely Ravi @ Bauna and Deepak @ Ganja were apprehended and arrested vide memo ExPw11/D and E. their personal search was conducted vide memo ExPW4/A and PW4/B respectively and they made disclosure SC No. 118/14 State vs Ravi @ Bauna etc (Page 18 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC statement Ex PW3/B and ExPW3/A.
24. PW7 further deposed that accused Ravi @ Bauna led the police party to CNG filling station on 80 foota road, leading towards GT Road from DSIDC area and there from the bushes accused Ravi @ Bauna took out the weapon of offence (nihani) which was having wooden/plastic handle and sharp blade.
25. PW7 further deposed that at that time Nihani was having spots probably of blood and accused Ravi @ Bauna stated that it was the same Nihani with which he hit deceased Pradeep and at that time his other associate caught hold the deceased. He prepared the sketch of that Nehani ExPW11/C and total length of the nihani was about 25 cm. Out of which length of the handle was 11.5 cm and the length of the blade was 13.5 cm. Said Nihani was converted into a parcel and was sealed with the seal of RS and seized vide seizure memo ExPW3/C.
26. PW3 Constable Santram and PW4 Constable(HC) Satbir have deposed on the lines of PW7 as far as recovery of Nihani is concerned.
SC No. 118/14 State vs Ravi @ Bauna etc (Page 19 of 26 )
FIR no. 484/2008
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u/s 302/34 IPC
27. During the argument ld counsel for the accused persons vehemently argued that the place from where the weapon of offence was allegedly recovered i.e 80 foota road is a open place and in these circumstances other public persons were having access to that place and the accused Ravi @ Bauna cannot be held in exclusive possession of the said place. By referring the testimonies of police witnesses, he submitted that even the public witnesses were not made to join the recovery of the said weapon of offence.
28. Ld counsel for the accused persons further argued that the Nihani was allegedly recovered on 5.11.2008 whereas incident took place on 29.10.2008 . In these circumstances possibility of interference with the place of recovery during that period cannot be ruled out.
29. As far as the argument of the ld counsel for the accused regarding non joining of public witnesses is concerned , I do not find any merits. In the present case , two public witnesses Gajender (PW11) and Manoj (PW14) were with the IO. It is a different matter that they have not supported the case of prosecution . In these circumstances, SC No. 118/14 State vs Ravi @ Bauna etc (Page 20 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC IO Inspector Raj Singh ( PW7) was not supposed to ask other public persons to join the recovery of weapon of offence.
30. Further in this regard I may take the help of decision of Hon'ble Supreme Court in a case State vs Sunil & Anrs , (2001) 1 SCC 652 wherein it was held " In this context , we may point out that there is no requirement either u/s 27 of the Evidence Act or u/s 161 of Code of Criminal procedure to obtain signatures of independent witness on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitant of the locality to attend and witness the excercise made by the police is cast on the police officer when searches are made under chapter VII of the Code. Section 100 (5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses.
But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endevour envisaged in chapter VII of the Code . Hence, it is fallacious impression that when recovery is effected pursuant to any statement made by the accused the documents prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads recovery of any article it is opened to the IO to take the signature of any person present at that time, on the document prepared by such recovery. But if no witness was present or if no person had agreed to SC No. 118/14 State vs Ravi @ Bauna etc (Page 21 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC affix his signature on the document, it is difficult to lay down as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable . The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."
31. It was further argued that both the public witnesses namely Gajender and Manoj have not supported the case of the prosecution qua the recovery of weapon of offence also. They have denied of having joined the investigation on 5.11.2008 when the alleged recovery of Nihani was made. In this regard , I find support in the argument of the ld defence counsel. It is not in dispute that as per the story of the prosecution three police officials alongwith two public witnesses namely Gajender (PW11) and Manoj (PW14) proceeded to arrest the accused persons and they arrested the accused persons from behind Mansa Devi Mandir, Narela , Delhi . There accused Ravi @ Bauna made disclosure statement and pursuant to that statement they proceeded to the place from where weapon of offence was allegedly recovered. Meaning thereby, if the story of the prosecution is to be believed , both the public witnesses Gajender (PW11) and Manoj (PW14) were with them but SC No. 118/14 State vs Ravi @ Bauna etc (Page 22 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC they have denied the same.
32. PW14 Manoj during his cross examination replied that he has not signed any memo including seizure memo ExPW3/C vide which weapon of offence was seized. Same is the case with the another public witness Gajender (PW11) who has also failed to identify the weapon of offence and categorically stated that on 5.11.2008, he had not joined the investigation qua the recovery of weapon of offence. In these circumstances, the recovery of weapon of offence itself become doubtful in the background of the fact that the place from where the weapon of offence was allegedly recovered was open place and it was recovered after 5-6 days from the date of occurrence.
33. Moreover, even if for the sake of argument it is presumed that recovery of Nihani i.e weapon of offence was made at the instance of the accused Ravi @ Bauna still it would not help the prosecution. The said weapon of offence was sent to CMO Dr. R.P Singh for subsequent opinion and he had given the said opinion and same is ExPW7/L ( not disputed by the accused persons). As per the said opinion SC No. 118/14 State vs Ravi @ Bauna etc (Page 23 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC ExPW7/L, the injuries as mentioned in the postmortem report ExPW7/I are possible by the weapon produced before him or by similar such type of weapon .
34. The weapon of offence was also sent to the CFSL for examination and it was given Exhibit-7 and was described as instrument of weapon of offence i.e Nihani. As per the CFSL result Ex PW6/A blood was detected on the said weapon of offence and as per the another biological result ExPW6/B, weapon of offence i.e Nihani was found having human blood of 'B' group. It is true that blood group of deceased Pradeep was also found to be of 'B' group but same is not a conclusive proof to prove that it was having the blood group of the deceased as number of human beings can have the same blood group.
35. Now, the question arises whether only on the basis of this sole circumstance i.e recovery of a possible weapon of offence at the instance of the accused Ravi @ Bauna , can accused persons be convicted for the offence of murder. The simple answer is' NO. In this regard , I may mention the authority as relied upon by the ld counsel SC No. 118/14 State vs Ravi @ Bauna etc (Page 24 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC for the accused person, Deepak Chaddha vs State of Delhi, 2012 (1) JCC 540 wherein Hon'ble High Court of Delhi held " We do not propose to deal with the purity of the evidence relating to the two recoveries i.e the recovery of the shirt and the knife at the instance of the appellant, for the reason, in the decisions reported as Kallo Passi Vs State, 2009(2) vs Chhatrasing & Ors., AIR 1977 SC 1753; Surjit Singh vs State of Punjab, AIR 1994 SC 110; Deva Singh Vs State of Rajasthan , 1999 CriLJ 265 , & Prabhoo vs State of UP, AIR 1963 SC 1113 the Supreme Court held that in the absence of other incriminating evidence, the circumstances of seizure of blood stained clothes at the instance of the accused as also the recovery of a possible weapon of offence at the intance of the accused are wholly in sufficient to sustain the charge of murder against the accused".
36. In the present case, I find that the prosecution has failed to prove the offence against the accused persons beyond shadow of doubt. Thus, I am left with no option but to acquit the accused persons . Accused Ravi @ Bauna and Deepak @ Ganja therefore stands acquitted from the charge u/s 302 /34 IPC .
37. Accused persons namely Ravi @ Bauna and Deepak @ Ganja be released immediately if not wanted in SC No. 118/14 State vs Ravi @ Bauna etc (Page 25 of 26 ) FIR no. 484/2008 D.O.D 29.4.2014 P.S Narela u/s 302/34 IPC any other case.
38. In terms of section 437(A) CrPC, accused Ravi @ Bauna and Deepak @ Ganja are directed to furnish bail bond in the sum of Rs 10,000/- each with one surety in the like amount.
39. File be consigned to record room.
Announced in the open (Rajesh Kumar Goel)
Court today i.e 29.4.2014 ASJ-5, North
Rohini Court
SC No. 118/14 State vs Ravi @ Bauna etc (Page 26 of 26 )