Delhi District Court
State vs . Birsan & Ors. on 27 January, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0019512009
SC NO: 102/09
FIR NO: 188/07
U/s: 302/34 IPC
P.S. : DABRI
STATE Vs. BIRSAN & ORS.
JUDGMENT
1 Sl. No. of the Case SC No.102/09
2 Date of Committal to Sessions 03/09/07
3 Name of the complainant State
4 Date of commission of offence 04/03/07
5 Name of accused, parentage and address 1.Krishan, S/o Shri Hardyal Singh, R/o RZB
1560, Gali No.6, Sagar Pur, Delhi, Age: 37 yrs.
2.Birsan,S/o Shri Hardyal Singh, R/o RZB 1560, Gali No.6, Sagar Pur, Delhi Age:30 yrs.
3.Amit, S/o Shri Harjeet Singh,R/o RZC15, Gandhi Market, West Sagar Pur,Delhi,Age: 24 yrs.
4.Sumit , S/o Shri Harjeet Singh , R/o RZC15, Gandhi Market, West Sagar Pur, Delhi, Age: 22 yrs.
5.Chanan Kaur,W/o Late Sh. Hardayal Singh , R/o RZB1560, Gali No.6, Sagar Pur, Delhi, Age:
70 yrs.
6.Shailender Kaur , W/o Shri Harjeet Singh, R/o C15, Gandhi Market, West Sagar Pur, Delhi, Age:
45 yrs.
6 Offence complained of 302/34 IPC 7 Offence charged of 302/34 IPC 8 Plea of guilty Pleaded not guilty 9 Final order Acquitted 10 Date on which order reserved 23.01.2012 11 Date on which order announced 27.01.2012 Page 1/45 of judgment State vs. Birsan & ors dt.27.1.2012 2 BRIEF REASONS FOR DECISION
1. Case of the prosecution is that on 04.03.07 DD No. 84 B Ex.PW25/A was received at PS Dabri at 9.02 PM from a PCR , vide Record Ex. PW 11/A, to the effect that 34 boys armed with knife have entered into a house at Gali No. 4, Near Sandhya Market, Sagar Pur. It was assigned to ASI Kailash Chand through Ct. Naresh. ASI reached the spot and he found blood lying in a plot. Although he did not find any eye witness but he was informed by people gathered there that one Sonu had come there to meet Swaran Kaur @ Chabbo at the spot where Chabbo's brothers Birsan, Kirshan , her mother Channan Kaur and sister Shailender Kaur quarreled with Sonu and assaulted him with knife and fled from there. Swaran Kaur @ Chabbo took Sonu to Kukerja Hospital in a TSR. ASI visited Kukreja Hospital where Sonu was found declared brought dead vide Medical Ex.PW23/A and PCR call qua it being Ex.PW12/A. As per MLC Sonu had 9 CLW's all over the body. ASI took the body to DDU Hospital Mortuary and came back to the spot and sent rukka Ex.PW25/B and got FIR as Ex. PW 7/A U/s 302/34 registered.
Further investigation was taken over by Inspector Vijay Singh Chandel.
Page 2/45 of judgment State vs. Birsan & ors dt.27.1.2012 3
2. Crime Team was summoned and their report is Ex.PW17/A . Spot was got photographed which are Ex.PW18/B1 to Ex.PW18/B5 and the negatives being Ex.PW18/A1 to Ex. PW 18/A5. Site plan Ex.PW 27/B was prepared by IO. Scaled site plan is Ex.PW20/A. He seized one racksin jacket left by accused Ex.P1 apart from seizing Chappels Ex.P2 vide memo Ex.PW16/A. The jacket was found containing Voter Icard of Krishan Singh Ex.P5 and same was seized vide memo Ex.PW16/B. Baseball handle pieces, bangle piece, blood and earth control were seized vide Memo Ex.PW16/C, D & E.
3. IO recorded statements of Injured eye witness Swaran Kaur @ Chabbo wife of deceased, eye witness Vinay Malik son of deceased and mother Smt. Shanti Devi U/s 161 Cr. P.C wherein they are shown to have told the IO that deceased Sonu was assaulted and killed by Birsan, Kirshan, Shailender, Chanan Kaur, Sumit & Amit, while Sonu had come to see Swaran Kaur.
4. Death report of deceased Ex.PW27/C and brief facts Ex.PW27/D were prepared. PM Report is Ex.PW9/A as per which Sonu suffered around 10 anti mortem incised injuries and he died of hemorrhagic shock caused by above injuries . Body was identified by statement Ex. PW 5/A & Ex. PW 6/A .
Page 3/45 of judgment State vs. Birsan & ors dt.27.1.2012 4 Handing over receipt is Ex.PW5/B. Articles on the body were seized vide Ex. PW 5/D. Blood Sample and clothes of deceased were seized vide Ex.PW 25/C.
5. Section 164 Cr. P.C. statements of eye witnesses Swaran Kaur @ Chabbo and Shanti Devi were got recorded on 08.03.07 & 20.03.07 and the same are Ex.PW1/A , Ex. PW 29/AC , Ex. PW 3/A , Ex. PW 29/EF respectively. On 05.03.07 accused Chanan Kaur was arrested vide arrest memo Ex.PW27/E, personal search is Ex.PW27/F. She gave disclosure statement Ex.PW25/D. Since Birsan and other accused were absconding and evading arrest, his NBW's followed by Section 82 Cr. P.C. were obtained . Thereafter on 09.05.07 accused Sumit Singh was arrested vide Memo Ex.PW16/F, personal search Ex. PW 16/G. He gave disclosure statement Ex.PW16/H.
6. Shailender Kaur was arrested on 09.05.07 vide memo Ex.PW26/A, personal search Ex. PW 26/B and she gave disclosure statement Ex.PW 16/J & EX. PW 8/A . The Santro Car DL 3CAB 4274 was seized from Sumit vide Memo Ex.PW16/K.
7. Meanwhile Birsan was arrested by Crime Branch , Chankya Puri. Then IO Page 4/45 of judgment State vs. Birsan & ors dt.27.1.2012 5 placed him under arrest in this case vide memo Ex. PW 21/A on 19.05.07 and his disclosure statement is Ex. PW 21/E . Blood sample was taken vide memo Ex. PW 21/C . Birsan got recovered knife Ex.P3 from his residential house at Sagar Pur vide memo Ex.PW6/C and sketch Ex.PW6/B. He also got recovered a sweater purportedly belonging to deceased Ex.P4 from his house vide memo Ex.PW 6/D. Accused Kirshan was arrested on 19.05.07 vide memo Ex.PW21/D. Accused Amit Singh was arrested on 20.05.07 vide memo Ex. PW 21/C , his personal search Ex.PW 21/D, his disclosure statement is Ex. PW 26/C. His blood sample was taken vide memo Ex. PW 21/F.
8. Exhibits were deposited in Malkhana and later sent to FSL as per malkhana reports and RC Ex.PW 13/A to F . FSL report is Ex. PX1, Ex. PX 2, Ex. PX 3, Ex. PX 4 , Ex. PX 5. Copy of FIR NO. 520/2000 is Ex.PW 28/A. Photographs of deceased are Ex. PX A to D.
9. At the onset it would be appropriate if the gist of deposition of PWs is glanced.
10.PW1 is Swaran Kaur @ Chabbo , widow of deceased Rajender @ Sonu.
Page 5/45 of judgment State vs. Birsan & ors dt.27.1.2012 6 As per her on 04.03.07 at around 8:00 PM when she was present at Gali No. 4, Sagar Pur House on the day when Holi was celebrated her husband Sonu was sitting on the wall in the house. She heard cries and found that 34 persons are running a way after injuring Sonu . When she tried to chase them one of them was gave her knife blow on her hips. She took Sonu to hospital. She neither named nor identified either of the accused as assailant .
11.PW2 is Sushma who was on PCR Duty .
12.PW3 is Shanti Devi , mother of deceased Sonu. As per her on 04.03.07 her son Sonu left the house while stating that he would go to meet lady Chabbu daughter of Chanan Kaur and play Holi even though they were not married but living together for 78 years . Chabbo was married to one Hem Raj @ Jugnu but when Chabbu started living with Sonu, relations of both family got strained. Sons of Chanan Kaur used to threaten Sonu and the entire family. When her son did not reach home till 6:00 PM she left for Chabbo's House at Sagar Pur where she saw accused Birsan, Kirshan, Shailender Kaur, Chanan Kaur, Sumit Singh and Amit Singh . Birsan, Krishan and Chanan gave knife Page 6/45 of judgment State vs. Birsan & ors dt.27.1.2012 7 blows on forehead, chest and back of deceased Sonu in her presence apart from stabbing her mother. Sumit and Amit , sons of Shailender had caught hold of Sonu from legs and they had dandas as well. Shailender had caught right hand of Sonu. Chanan exhorted others to kill Shanti Devi as well. She had too rush away from there. She correctly identified Birsan and other accused in the court.
13.PW4 is Vinay Malik, son of deceased Sonu, an eye witness who stated that on 04.03.07 at around 8:30 PM he saw 56 persons in the Gali / spot stabbing deceased Sonu. However, he neither named nor identified either of the accused as assailant.
14.PW5 is Manoj Kumar who identified dead body of Sonu.
15.PW6 is Raj Kumar , brother of deceased Sonu who joined the investigation and is witness of recovery of weapon on 20.05.07 on pointing out of Birsan.
16.PW7 is ASI Ram Karan, duty officer who recorded FIR.
17.PW8 is Ct. Raj Bala witness arrest of Shailender .
18.PW9 is Dr. Anil Shandiley who conducted post mortem of deceased Sonu.
19.PW10 is Lady Ct. Mukesh witness arrest of Swaran Kaur.
Page 7/45 of judgment State vs. Birsan & ors dt.27.1.2012 8
20.PW11 is Rishi Pal who was on PCR Duty reached the spot .
21.PW12 is HC Khursheed of PCR who received information of death of Sonu.
22.PW13 is HC Devender , MHCM who proved Malkhana Entries .
23.PW14 is ASI Sajjan Pal Singh who was D.O. at PS Dabri and recorded DD Entry.
24.PW15 is Ct. Parmod Kumar, who took copy of FIR to Ilaqa MM .
25.PW16 is HC Naresh , who accompanied ASI to the spot initially apart from arrest of Chanan Kaur, Sumit and Shailender.
26.PW17 is SI Sunder Pal of Crime Team.
27. PW18 is Ct. Braham Dutt, photographer.
28.PW19 is Ct. Subhash Kumar who deposited exhibits with FSL.
29.PW20 is Ct. Hardeep Singh who prepared scaled site plan .
30.PW21 is HC Mahavir who witnessed to the arrest of Birsan apart from recovery of knife.
31.PW 22 is HC Veer Pal of Crime Branch who arrested Birsan initially.
32.PW 23 is Munish Sehgal , PRO of Kukerja hosptial who proved Medical of deceased Sonu.
Page 8/45 of judgment State vs. Birsan & ors dt.27.1.2012 9
33.PW 24 is Dr. Aruna Singh, who proved medical of Swaran Kaur .
34.PW25 is ASI Kailash Singh who was assigned initial DD and who got FIR recorded apart from witnessed to arrest of Chanan Kaur.
35.PW 26 is Inspector Dharam Bir Singh part IO who arrested Sumit and Shailender and detailed steps taken by him during investigation.
36.PW27 is Inspector Vijay Singh, IO of this case . He details the steps taken by him during investigation and identified Birsan and other accused .
37.PW28 is ASI Vijay Singh duty officer at Mangol Puri.
38.PW 29 is Sh. J.P. Nahar, Ld. MM who recorded 164 Cr. P.C. statement of witnesses.
39.PW30 is Naresh Kumar of RR Sessions who placed on record judgment of acquittal in FIR 520/2000.
40.I have heard arguments of Ld. Addl. PP Sh. V.K. Negi for State and Ld. Counsel Sh. R.S. Malik for all the accused persons. I have perused the judicial record carefully.
41.Section 300 IPC Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is Page 9/45 of judgment State vs. Birsan & ors dt.27.1.2012 10 caused is done with the intention of causing death, or 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.
42.The three basic ingredients U/s 302 IPC runs as under:
The essential ingredients of the offence under sec. 302 are as follows:
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
43. Now I shall evaluate the prosecution evidence to ascertain whether the above individual necessary ingredient stand proved on record.
Page 10/45 of judgment State vs. Birsan & ors dt.27.1.2012 11
44.Ingredient No.1 :
Death of a human being was caused:
45.As far as this ingredient is concerned, prosecution has placed and proved on record MLC Ex.PW23/A whereby Kukerja Hospital declared Sonu dead on 04.03.07. Inquest proceedings Ex.PW 27/C & D , post mortem report Ex.PW 9/A and body identification statements Ex.PW 5/A & Ex. PW 6/A apart from body handing over receipt Ex.PW 5/B all goes on to show that deceased Sonu suffered unnatural death. Even otherwise this fact has not been disputed by the defence either during the course of trial or even during the course of final arguments. Even in their 313 Cr. P.C. statements accused persons admitted that deceased Rajender @ Sonu died a unnatural death. First ingredient is accordingly established by the prosecution. Second ingredient
46. Such death was caused by or in consequence of the act of the accused:
47.In order to connect the accused persons with the offence charged and to establish that deceased Sonu died as a consequence of the acts done by the accused persons prosecution has relied on under mentioned witnesses and circumstances.
Page 11/45 of judgment State vs. Birsan & ors dt.27.1.2012 12 A) Deposition of three eye witnesses namely:
48.
i) PW1 Swarn Kaur @ Chabbo,
ii) PW3 Shanti Devi &
iii) PW4 Vinay Mallik.
B) Recovery of Jacket, Chappal and Election Eye Card purportedly of accused Kishan at the spot.
C) Recovery of claimed weapon of offence, knife from house of Birsan. D) Recovery of jersey purportedly of deceased from house of Birsan. E) Conduct of accused persons post incident.
49.Now I shall discuss the above individual evidences in detail.
50.Deposition of three eye witnesses namely:
i) PW1 Swarn Kaur @ Chabbo,
ii) PW3 Shanti Devi &
iii) PW4 Vinay Mallik.
51.As far as the deposition of PW1 Swarn Kaur @ Chabbo is concerned, she has been cited by the prosecution as an injured eye witness. She is said to be wife of decease Rajender @ Sonu. She also happens to be sister of accused Birsan, Kishan and Shailender Kaur, daughter of accused Chanan Page 12/45 of judgment State vs. Birsan & ors dt.27.1.2012 13 Kaur and maternal aunt of accused Amit and Sumit. In his deposition as PW 1, she disclosed about the assault on her husband Sonu on 4.03.07 at around 8.008.15 PM in her house. She however neither named or identified either of the accused as the assailants. As per her she even chased the assailants and was assaulted by one of them on her right hip. She took her husband to the hospital. She was declared hostile by the State and was put leading questions but no avail to the prosecution, in so far as this witness has failed to connect either of the accused with the murder in question. She has not supported the prosecution case in this regard. Since she has deposed about the assault, she cannot be said to be a totally hostile witness.
52.Interestingly she has disclosed that the spot assault was actually center of her house, whereas according to the prosecution story as well as site plan Ex.PW27/B and 20/A, the incident did not take place inside the house of PW 1 and rather took place in the vacant plot adjacent to her house.
53.Second eye witness relied is PW3 Shanti Devi. She happens to be mother of deceased Rajender @ Sonu. As detailed supra she has claimed to have witnessed the murderous assault purportedly by all the six accused persons.
Page 13/45 of judgment State vs. Birsan & ors dt.27.1.2012 14 As far as this witness is concerned the defence has vehemently argued that she is a planted witness who has been introduced subsequently in order to give colour to the prosecution case. As per the charge sheet her statement U/s 161 Cr.P.C. is shown to have been recorded on the next day of the incident i.e. on 5.03.07 but close scrutiny of the police file and individual case diary revealed that there is no mention of her name in the entire police file from date 4.03.07 to 20.03.07. It is for the first time on 20.03.07 that her name is mentioned when her 164 Cr.P.C. statement was recorded. When the names and particulars of all the witnesses examined by the IO on 5.03.07 are duly mentioned in the CDs, non mention of Shanti Devi's name is indicative of antedating of her Section 161 Cr.P.C. statement.
54.The plea of defence of planting of this witness is further fortified by the fact that as per the deposition of her own son, PW6 Raj Kumar, when the telephonic information of admission of deceased Sonu at Kukreja Hospital was received at their house at around 8.30 - 8.45 PM he along with his mother (PW3 Shanti Devi) and sisters rushed to the hospital. The incident is said to be of Sagar Pur in SouthWest Delhi while residence of PW3 is at Page 14/45 of judgment State vs. Birsan & ors dt.27.1.2012 15 Mangol Puri in NorthWest Delhi. The distance between the the two places is of around 1516 kilometers. As such it is practically impossible for a person to witness an incident at Sagarpur at 8.15 8.30 PM and reach home at Mangole Puri, Delhi 15 Km away at 8.308.45 PM at peak traffic hour. Even otherwise it is not the case of PW3 Shanti Devi that she reach back home after witnessing the claimed murderous assault on her son Sonu.
55.Plea of PW3 of being an eyewitness is further belied by the fact that according to her deposition she telephoned her son PW6 Raj Kumar from the spot. But according to Raj Kumar he did not receive any call from his mother but rather information was received from Kukreja Hospital after which he reached there with his PW3 Mother and sisters.
56.Furthermore according to PW3 her PW6 son Raj Kumar and soninlaw came to the spot but according to her PW6 son he had not come to the spot but had straight away gone to Kukreja Hospital upon receipt of information. Version of PW3 is further belied by her statement that it was police who removed Sonu to hospital and PW1, Chabbo did not accompany him , but according to MLC agreement PW23/A Sonu was brought to the hospital by PW1 Chabbo, PW4 son Vinay in private auto. All this categorically show Page 15/45 of judgment State vs. Birsan & ors dt.27.1.2012 16 that PW3 Shanti Devi is not aware of the true facts and is using her imagination in order to show and justify her presence at the spot. As per PW1 Chabbo it was she who informed PW3 Raj Kumar about the incident by calling him telephonically from Kukreja Hospital. She categorically added that her mother in law PW3 Shanti Devi did not reach the spot at the time or before the occurrence.
57.The plea of defence of planting of PW3 Shanti Devi is further fortified by contents of Rooka Ex.PW25/B where it is specifically mentioned that when ASI Kailash Chand, examined as PW25 in the Court, reached the spot he did not find any eye witness there. As per Ruqqa when he reached Kukreja hospital he did not find any eye witness there either. And when he came back to the spot after depositing the dead body of Sonu with the DDU hospital at around 1111.30PM, he did not find any eye witness at the spot yet again. All this goes on to show that PW3 Shanti Devi was neither present at the spot when police reached there nor she accompanied Sonu to Kukreja Hospital. This clearly shows that at the time of the said assault she was present at her house with her PW6 son and for this reason alone she did not meet anybody including police either at the spot or at the hospital.
Page 16/45 of judgment State vs. Birsan & ors dt.27.1.2012 17
58.Also importantly the claim of PW3 Shanti Devi of witnessing the murderous assault on her son Sonu from a distance is highly improbable logistically. As per her deposition in the court, she left her house at Mangol Puri at 6 PM and hired an auto for going to the house of Chabbo at Sagar Pur . This distance of around 15 kms when covered in an auto would not take more than 4045 minutes. But she is shown to have reached house of Chabbo after covering the above distance in around two and a half hours even though as per her this distance is hardly a halfanhour drive by TSR. She claims to have reached when the assault began.
59.In her statement in the court, PW3 Shanti Devi too refer to the place of incident as house of PW1 Chabbo which is different from what the prosecution has mentioned in the charge sheet. Even both the site plans Ex.PW27/B & 20/A are totally silent qua any place from where PW3 Shanti Devi could have witnessed the incident. In her crossexamination PW3 has expressed unawareness about the address of PW1 Chabbo where the incident is said to have taken place and there is nothing on record to show that she was a frequent visitor of that house as according to her the relation between the two families were strained.
Page 17/45 of judgment State vs. Birsan & ors dt.27.1.2012 18
60.Another very important aspect of the mother is that as far as human conduct is concerned specially that of a mother, it is absolutely improbable that a mother would silently witness fivesix persons assaulting her son with knifes all over his body and would not intervene in order to save him. It is further impossible for a mother to leave her son bleeding and writhing in pain to die instead of trying to come to his rescue or at least arrange for his removal to a Hospital. It is impossible for a mother who is present at the spot of assault to not to accompany her injured son to the hospital. It is also impossible for a mother to witness such an incident and still silently reach back her home and not share this tragedy with any of her family members till a message of admission of her son in the hospital is received.
61.As far as this conduct of the witness concerned, in case titled Alil Mollah Vs. State of West Bengal, AIR 1996 SC 3471 Hon'ble Supreme Court observed that :
" On his own showing , PW3 was an employee of the deceased. He was present, according to his testimony, when deceased was assaulted by the appellants ......... the witness, however, did not raise any alarm when his master was being assaulted, he did not go near his employer even after the assailants had fled away to see Page 18/45 of judgment State vs. Birsan & ors dt.27.1.2012 19 the condition in which the employer was , after suffering the assault. According to him , he got frightened and fled away to his home. He also admitted in his cross examination that neither at his home nor in the village did he disclose what he had seen in the evening .... This conduct of witness that he did not tell anyone about the occurrence till the next day appears to be rather unnatural and creates an impression that he had not witnessed the occurrence.... There is no corroboration of his evidence from any other independent source either. "
62.It is also improbable for a mother to not to report the matter to the police either telephonically or personally even though as per her PS Dabri was hardly 1015 minutes walk, away from the spot.
63.In case titled Din Dayal Vs. Raj Kumar @ Raju , II (1998) CCR 69, Hon'ble Supreme Court while discussing the conduct of a relative cited as eye witness in a murder observed:
"The witness had not accompanied the deceased to the hospital nor had taken any trouble of going and informing the police about what had happened. After seeing the incident , they quietly went back to their home. It can not be said that view taken by the High Court that the conduct of the witnesses was not natural, is unreasonable. They were not mere the eyewitnesses. They were closely connected to the deceased. The High Court was, therefore, justified in not placing any reliance upon their evidence."
Page 19/45 of judgment State vs. Birsan & ors dt.27.1.2012 20
64.Had Shanti Devi been an eyewitness she would have joined the proceeding at the spot. She has not witnessed any proceeding or seizure during the initial investigation and her name was alien to the entire investigation file till 20.03.07, when she was introduced in this case as a witness for the first time. All this goes on to show that PW3, Shanti Devi is not any eye witness of the assault and she has been planted in this case solely because this case was earlier shouldered only by PW1 Chabbo and PW4 Vinay.
65.iii) PW4 Vinay Mallik Prosecution has cited Vinay as an eyewitness. He is shown to be son of deceased Sonu and PW1 Chabbo. In his deposition as PW4, he did talk of the assault on 4.3.07 at 8.30 PM but he too neither name nor identified either of the accused. Despite he being put leading questions no circumstance which could connect either of the accused with this case could come on record. Interestingly according to this witness the place of incident is neither his house nor the adjacent vacant plot but the Gali outside his house. As per him the knife used in the assault was left by the assailants at the spot. As such this witness too has failed to connect either of the accused with the offence charged.
Page 20/45 of judgment State vs. Birsan & ors dt.27.1.2012 21
66. B) Recovery of Jacket, Chappal and Election Eye Card purportedly of accused Kishan at the spot. Apart from citing the above three witnesses prosecution is shown to have recovered a jacket, a pair of chappals and an election eye card of accused, Kishan, from the spot. Relevant seizure memos are Ex. PW16/A & Ex. PW16/B. These recoveries are shown to have been effected on the next day of the incident i.e. on 5.03.07 from the plot, cited as spot of assault. This recovery of jacket and identity card of the accused appears to have been manipulated and planted simply because after the matter was reported to the police on 4.03.07 at around 9 PM not only official of local police but the crime team also descended there. The entire area was searched and photographed by the crime team. The ruqqa Ex.PW25/B was sent after around 3½ hrs of the incident but there is absolutely no mention of any jacket, chappal or Icard whatsoever. Had these articles been recovered or even sighted at the spot , IO would have definitely mentioned that in his ruqqa. Also they would have been photographed by the Crime Team as was done qua the blood and broken bangles found there. As per site plan Ex.PW27/B and PW20/A the place of claimed recovery of above three Page 21/45 of judgment State vs. Birsan & ors dt.27.1.2012 22 articles is right next to the place where blood was found. Even in their statements given to the police neither of the witnesses have stated that one of the assailants had left his jacket with an election Icard, in it at the spot.
67.The above recoveries were allegedly witnessed by PW1 Chabbo but in her deposition in the court she categorically denied witnessing any such recovery and rather stated that she was made to sign blank papers. It is improbable that an accused would carry his photo election Icard during any such assault and would leave it at the spot with his jacket for the police to recover the same and use it against him as evidence. In a starking contrast , PW1 Chabbo identified this raxine jacket & claimed it to be belonging to her deceased husband Rajender @Sonu. This deposition of the witness was not confronted by the prosecution as well. As such this piece of evidence is found to be manipulated and hence unbelieveowrthy. C) Recovery of knife from house of Birsan.
68. After the arrest of accused Birsan on 19.5.2007 he is shown to have given disclosure statement Ex.PW21/E followed by recovery of knife from the kitchen slab in his house at Sagarpur. Sketch of the knife is Ex.PW6/B. As Page 22/45 of judgment State vs. Birsan & ors dt.27.1.2012 23 per FSL report no particular group of human blood could be detected over this knife. No attempt was made to lift finger prints therefrom so as to connect it with either of the accused. It is interesting to observe that even subsequent opinion qua usage of this weapon in the murder in hand was not obtained from the concerned doctor who conducted the postmortem of deceased Sonu. A very peculiar reason for non obtaining of subsequent opinion was given by the IO when he stated that the concerned doctor refused to give opinion. It goes without saying that no doctor can refuse to give his subsequent opinion in such like heinous cases.
69.In case titled Ishwar Singh vs. State of UP, AIR 1976 SC 2423 Hon'ble Supreme Court while discussing the failure of the prosecution to obtain subsequent opinion from the PM Doctor qua usage of the recovered weapon held:
"It is duty of the prosecution, and no less of the Court, to seek that the alleged weapon of the offence , if available , is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometime, cause aberration in the course of justice."
70.Further more , as mentioned supra, this knife too appears to be planted in so Page 23/45 of judgment State vs. Birsan & ors dt.27.1.2012 24 far as in his deposition as PW4 Vinay Malik specifically stated that the assailants left the knife at the spot but neither the police nor the crime team showed the existence of any such knife in their crime team report or, photographs of the spot or the site plan. Even otherwise it is highly improbable that an accused would keep a weapon of offence used in a murder at his home for around a month only to get it recovered during the course of investigation .
71.In this regard in case titled Liddu @ Salook Singh Vs. State of Haryana, 1994 (1) RCR 129 while dealing with a murder case in similar circumstance held that :
"It looks highly improbable that accused would keep the spring knife concealed as a prize possession at the risk of his creating evidence against himself qua his involvement in the connected murder case. On the other hand he could destroy the same as it can not be said to be that costly a weapon."
72.Also the recovery of this knife is shown to have been witnessed by PW6 Raj Kumar. Despite this being a settled legal proposition , there is nothing on record to show that the disclosure Ex.PW21/E dated 19.5.2007 was made by accused Birson in the presence of PW6 Raj Kumar.
Page 24/45 of judgment State vs. Birsan & ors dt.27.1.2012 25
73.In this scenario the mere claimed recovery of knife can not be said to be completely & legally witnessed by the PW 6 Raj Kumar. In his cross examination PW6 could not give any specific reply to any question of the defence. All his answers to the material questions started with words " I CAN NOT TELL" .
74.As per him no attempt was made to join any independent public person as a witness on the way to the house of the accused . No witness from the locality was joined before the recovery was said to have been affected.
75.In case titled Pawan Kumar Vs. Delhi Admn. 1988 (2)RCR 421 while impressing the need of joining independent public witness during recovery of weapon of offence from a public place, in a murder case, it was held that :
" Here is a case where no effort was made to join a public witness even though number of them were present. No plausible explanation from the side of prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of general public to associate themselves with the police raids or recovery but that apart atleast the IO should have made an earnest effort to join the independent witness. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
Page 25/45 of judgment State vs. Birsan & ors dt.27.1.2012 26
76.No attempt was made to lift any finger print from the knife. As per him the knife was visible with bare eyes which shows that it was not concealed in any manner. This witness could not explain as to how the house of accused was accessed. There is nothing to show whether it was found it locked or its doors were lying open. Interestingly according to IO PW26 Inspector Dharamvir Singh, the house was found locked and the lock was opened with the help of a nail lying on the road. Neither the lock nor the nail was taken into possession as according to IO , it was appended back with the help of the nail which is highly improbable. All this goes on to show that in the absence of finger prints, subsequent opinion of doctor and lack of blood group matching, prosecution has failed to connect the knife with the offence in hand.
77.In case titled Sita Ram Vs. State (Delhi Admn.) 1997 JCC 637, Devision Bench of Hon'ble Delhi High Court held:
"The CFSL report ......... suggest that Ex.9 is the knife containing human blood. It is further suggested that the group of human blood on the said knife could not be ascertained .... it can not be said that this was the weapon which was used in the incident."
Page 26/45 of judgment State vs. Birsan & ors dt.27.1.2012 27 D) Recovery of jersey purportedly of deceased from house of Birsan.
78. Similarly prosecution is shown to have got recovered a jersy purportedly belonging to deceased Sonu on the pointing out ot accuse Birson from bathroom of the house vide memo Ex.PW6/B. As per FSL Ex.PX5, no specific blood group could be ascertained from the jersy. Record reveals that this jersy was not shown to PW1 Chabo, wife of deceased, PW3 Shanti Devi mother deceased or PW4 Vinay Malik son of deceased.
79.This is not only improbable but would be insane that an assaulter would on the one hand would leave his own jacket containing his photo identity card at the spot and on the other hand would remove the old tattered blood stained jersey of the deceased while fleeing from the spot and would preserve it in the bathroom of his house for weeks together so as to get it recovered after his arrest, for it to be used as evidence against him. As discussed in the previous head of recovery of knife , mandatory requirements of Section 100 Cr.P.C. were not complied with the by the IO.
80.Section 100 Cr. PC runs as under :
Section 100 Cr. PC: Persons in charge of closed place to allow search Page 27/45 of judgment State vs. Birsan & ors dt.27.1.2012 28 (1) ...............
(2) ...............
(3) ...............
(4) Before making a section under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend any witness the search and may issue an order in writing to them or any of them so to do.
(5) ...............
(6) ...............
(7) ...............
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code.
81. In AIR 1956 SC 411 Hon'ble Supreme Court impressed that:
"Section 100 Cr.P.C. does apply when a search is to be made of a place."
82.In case titled Ram Kishore Vs. State 1990 RLR 154 (DB) , Division Bench of Hon'ble Delhi High Court while discussing Section 100 Cr.P.C. observed:
"It is obligatory on the part of the Police Officer to call on and get two or more respectable inhabitants of the locality to be the witnesses of the search. These witnesses must be called before the search is started. In this case , this precaution has not been taken ...
Page 28/45 of judgment State vs. Birsan & ors dt.27.1.2012 29 even though the places were such where respectable persons of the locality were available. ......... this makes the recovery and its identification doubtful."
83.In case titled State of MP Vs. Ram Parkash , 1989 Cr.LJ 1585 Hon'ble High Court while discussing the mandatory provision of 100 Cr.P.C. held that :
"Seizures evidenced by ....... according to us , must be regarded doubtful for the singular reason that the seizures were not made in accordance with salutary provisions of 100 (4) Cr.P.C. There is a clear breach in the case of each of the seizures of the statutory safeguard which requires "
two or more independent and respectable inhabitants of the locality" should be called to witness the seizure made under the Code. The prosecution has not come forward with any explanation as to why provisions of Section 100 (4) Cr.P.C. could not be complied with."
84.The claimed recovery is also not believable as PW6 Raj Kumar has failed to disclose specific particulars of the time and the documentation qua the claimed recovery. There is no explanation as to why no raid was conducted for recovery of weapons of offence between 4.30 PM on 19.05.07 and 7 PM on 20.05.07 when the disclosure statement of the accused was already available with IO. Once a relevant fact comes to the notice of the police, the investigation demand that police should not lose any time least the evidence Page 29/45 of judgment State vs. Birsan & ors dt.27.1.2012 30 is destroyed or manipulated. The lethargy shown by the IO is rather indicative of the fact that everything was stage managed. Also this jersey was not shown to the doctor who conducted the postmortem so as to seek his opinion as to whether the cuts on the body of deceased corresponded with the cuts on the jersey. Also the opinion qua the recovered knife and the cuts found on the jersey was not obtained so as to show as to whether they were possible with the seized knife or not. As such the recovered jersey too is unable to connect the accused persons with the offence in hand. E) Conduct of accused persons post incident
85. Ld. Addl. PP as well as Ld. counsel for complainant have placed strong reliance in conduct of the accused in absconding from their houses post incident. Although no doubt Section 8 Evidence Act makes the conduct of a person after an incident of relevance, but this is even otherwise deemed to be a very weak piece of circumstantial evidence. Perusal of the record shows that the prosecution has not led any specific evidence to show that the accused persons were absconding after the offence, Accused Chanan Kaur was arrested by the police on the very next day . Accused Shalinder Kaur Page 30/45 of judgment State vs. Birsan & ors dt.27.1.2012 31 was arrested within 5 days of incident while remaining accused were arrested within two week thereof. It is natural for a person, who is suspected to be involved in heinous offence, to feel alarmed and panicky. In the absence of any secondary evidence, I do not see much strength in this plea of the prosecution .
86.In case titled Matru Vs. State of UP, (1971) 2 SCC 75 while discussing the evidentiary value of absconding of suspect held:
"Mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime, such is the instinct of self preservation ."
87.In case titled Datar Singh Vs. State of Punjab, AIR 1974 SC 1193 Hon'ble Supreme Court while discussing the evidentiary value of circumstance that accused did not surrender after the offence, or were not traceable held:
"We also do not think that prosecution can benefit from the merely suspicious circumstance that appellant did not surrender or was not traceable for nearly a year .............. in any case the superstructure of prosecution case, based on the testimonies of two alleged eye witnesses , having crumbled in the case before us we find it impossible not to give the appellant the benefit of doubt because of the circumstances which could only raise suspicious against them."
Page 31/45 of judgment State vs. Birsan & ors dt.27.1.2012 32
88.In another case titled Prakash Mahadev Godse Vs. State of Maharashtra (1969 ) 3 , SCC 741 Hon'ble Supreme Court held :
" The conduct of the accused such as hiding after the offence, by itself , does not conclude matter ."
89.In case titled Ram Mohan Vs. State of NCT, Delhi, 2011 (4) JCC 2858, DB of Hon'ble Delhi High Court held that :
"Even if it is established that appellants were absconding, that by itself, can not form the basis of a conviction. It is not even to be regarded as a determining link in completing the chain of circumstantial evidence."
90.Other than above circumstances discussed in detail, prosecution has not led any ocular , documentary or circumstantial evidence, against either of the accused . However, the case of the prosecution suffers with a lot of improbabilities and discrepancies which indicate every thing but the guilt of the accused persons.
91.From the very beginning in the ruqqa itself , IO mentioned names of 4 out of the 6 accused persons but he neither mentions the name or any particular of the source of his this information. He makes a general mention that he was so informed by the people who had collected there. There is no explanation Page 32/45 of judgment State vs. Birsan & ors dt.27.1.2012 33 as to why he did not record the statement of those persons. He also did not ascertain as to whether there were eye witness or at least what was their source of naming the accused. IO maintained that no eye witness was found at the spot either on the first visit or even in the second visit late in the night.
92.Further as per MLC Ex.PW23/A, apart from PW1 wife and PW4 son, deceased Sonu was accompanied by two neighbours and the auto driver having Auto no. DL1RE 0555. No attempt was made by the IO who ascertained the particulars of the two neighbours and the auto driver so as to record their deposition. Their statements would have definitely thrown no light on the true facts of this case.
93.Also there is no explanation as to, if the PW1 wife and PW4 son of the deceased were at Kukreja Hospital how they did not meet the ASI when he reached the hospital as according to PW25 ASI Kailash Singh he did not meet any eyewitness at the hospital as well.
94.Prosecution is totally confused even as to the place of occurrence. According to PW1and PW3 the incident took place at PW1 Chabbo's house. According to PW4 son of deceased the incident took place in the Gali in front of his house. But according to the story of the prosecution and the site plans Page 33/45 of judgment State vs. Birsan & ors dt.27.1.2012 34 including Ruqqa, the incident took place in a plot adjacent to the house of PW1. All this goes on to show that there was something seriously amiss in the entire investigation.
95.The unscaled and scaled site plans prepared by the police, Ex.PW27/B and Ex.PW20/A respectively, are of no aid at all to the prosecution case. Not only they fail to specify the correct spot of the incident but they also no where mention the place from where the 3 PW's allegedly witnessed the assault. Also there is no detail of existence of any public or private lighting at the spot in so far as this incident had taken place late in the night.
96.Even if the site plans are to be believed the spot of assault is inside the plot with a boundary wall. Neither of the two site plans gives the specific height of the wall. The site plans are silent as to which path or direction the assaulters took while fleeing from the spot. No attempt was made to lift any footmarks or seek help of dog squad. In the site plans there is a conspicuous silence qua the place from where the prosecution witnesses are claiming to have seen the assault.
97.In case titled Singhara Singh Vs. State of Haryana, AIR 2004 SC 124 while Page 34/45 of judgment State vs. Birsan & ors dt.27.1.2012 35 stressing the importance of the site plan in the criminal trial Hon'ble Supreme Court ruled that "Essential features of the spot of crime shall be shown in the site plan. The omission to show them in both the site plans can not be attributed to a mere lapse on the part of investigating agency. "
98. In case titled Dinesh Vs. State of Haryana, AIR 2002 SC 2374 Hon'ble Supreme Court while acquitting the accused in a murder case amongst other thing observed, " There is no site plan available on record from which the Court could have had an idea of distances between place of occurrence and the place where witnesses were standing."
99.In case titled Vijay Singh Vs. State of MP, 2005 Cr.L.J 299 DB of Hon'ble High Court ruled that "We can safely say that preparation of site plan is not a mere formality, but, it is an essential feature in order to reach the firm conclusion by the Court in order to ascertain whether the offence has been committed by accused or not."
100.Another important aspect is that even though this assault is said to have Page 35/45 of judgment State vs. Birsan & ors dt.27.1.2012 36 taken place at night at around 8.30pm , there is nothing on record to show that the spot of assault as per prosecution story i.e. the vacant plot was lit or not. Neither of the site plan show any light point etc. to show that the claimed eye witness i.e. old lady PW3 Shanti Devi could have seen the incident.
101.Also police is shown to have recovered only one knife and that too was not shown to the doctor who conducted the postmortem. On the hind side there is absolutely no explanation as to the number and kinds of weapon used in so far as according to PM report Ex.PW9/8. Different nature of injuries were received by deceased Sonu which included incised wound, oval shaped stab wound, spindal shaped wound and contused lacerated wound. All of them could not have been caused by a single weapon.The manner in which PW3 Shanti Devi was introduced as an eyewitness at a belated stage reflects very poorly on the police.
102.In view of the above discussion I have no hesitation in concluding that prosecution has failed to prove this case against the accused persons beyond shadow of doubt. As such all the accused persons are Page 36/45 of judgment State vs. Birsan & ors dt.27.1.2012 37 accordingly acquitted of the offences charged. They be released from J/c forth with if not wanted in any other case. They are directed to furnish bail bond of Rs.15,000 with one surety like amount U/s 437 A Cr.P.C. for six months. File be consigned to record room after due compliance.
HIGHLY
103. UNPROFESSIONAL WORK OF CRIME TEAM PHOTOGRAPHER Before parting with the judgment, an observation is required to be made on the working of "Crime Teams" of Delhi Police in such like heinous offences. Out of the five photographs available on record neither of them was of any aid to this court during the trial. Not a single photograph of the deceased containing the details of the injuries suffered by him was taken by the crime team. I see no reason as to why the crime team or at least the photographer amongst them cannot visit the hospital or the mortuary to take the photographs of the deceased so that court can have a clear view of the nature of the injuries. Such photographs come handy in understanding the gravity of the offence visavis the manner of execution and the seat of injury Page 37/45 of judgment State vs. Birsan & ors dt.27.1.2012 38 apart from the weapons used. Even in non homicidal cases such photographs can be of great help.
104.As far as the photographing of the spot of assault is concerned I see that Delhi Police photographers are so poorly trained that they absolutely do not know as to what to click and from which angle. Focused photographs of 1sq. ft. area containing blood drops are of no avail to the prosecution in so far as it does not throw any light on the surroundings. Like in the instant case site plan shows the place of assault as inside of a vacant plot containing a peripheral wall. There is no photograph which could show the actual site / location within the plot or even the height of the wall circumfencing the plot. Until and unless all these details are covered by the photographer it would not be feasible for the court to have the realistic view of the place simply by gauging it from the non descriptive site plans & poorly clicked photos. Even though the crime team in this case arrived at night, the photographer should have carried with him suitably powerful flashes or else should have come on the next day as well to cover the topography of the area. Until and unless immediate steps are taken in this regard, poor unprofessional quality work of the crime team can lead to serious miscarriage of justice in very many Page 38/45 of judgment State vs. Birsan & ors dt.27.1.2012 39 heinous cases. As such copy of the judgment be sent to CP, Delhi who shall formulate a specific training course for photographers and other crime team members which is in consonance with best practices adopted by pivotal investigating agencies of the world. Progress report may be sent to this Court.
105.Further more it is seen that during entire criminal investigation Crime Team visits spot only once and that too at a very initial stage. Many a times several important recoveries are effected during the course of investigation viz. the weapon of offence, looted articles, blood stained clothes etc on the pointing out of the accused and even otherwise. On those occasions the description and topography of the area and the manner in which the property was found lying before recovery, are of vital importance for just decision of the case. A section of the IOs do prepare site plans qua this recoveries but the actual manner in which the recovered articles were lying just before the recovery, is not described therein. This situation can be cured my making Digital Cameras part of IO's Investigation Kit. In case digital cameras are issued to IOs of each Police Station and same are used to photograph the Page 39/45 of judgment State vs. Birsan & ors dt.27.1.2012 40 recoveries as well as spot of recovery, it would go a long way in making the investigation more transparent and creditworthy. By issuance of a Standing Order, the Office of worthy Commissioner of Police, Delhi, can make the photographing of recovered articles at the spot and the spot of recovery during the investigation mandatory. Similarly IOs shall use their tool kit cameras to photograph the injureds as well. This will not only help Trial Courts in understanding the nature , gravity and seat of injury but will also help Courts in identifying the victims of crime during trial while ruling out possibility of impersonation. Progress report in this regard may be sent to this Court.
106.Another important administrative aspect of this case is that it took more than 4½ yrs for a Sessions Court to conclude a trial wherein only 38 witnesses were examined . During this entire period the above acquitted accused had to remain in Jail. The reasons of delay in trial can be varied but one important aspect which can be curtailed simply by implementing a very benevolent provision of procedural law is by invoking Section 294 and Section 296 Cr.P.C.
Page 40/45 of judgment State vs. Birsan & ors dt.27.1.2012 41
107.The Criminal Procedure Code provides for admission/denial of several investigative documents U/s 294 apart from filing of evidence of formal character by way of affidavit U/s 296 Cr. P.C. Section 294 Cr. P.C. runs as under:
No formal proof of certain documents -
(1)Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be of the plead for the prosecution or the accused. If any shall be called upon to admit or deny the genuineness of each such document. (2)The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person by whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.
108.This statutory provision can be comfortably used to cut short unnecessary delays in criminal trials. Formal documents like FIR , MLCs, Photographs and their negatives, Site Plans , Forensic Reports etc. can be offered for admission by the defence . Expediting a trial is in the interest of both the prosecution as well as defence and it also saves precious judicial time.
Page 41/45 of judgment State vs. Birsan & ors dt.27.1.2012 42
109.Similarly Section 296 Cr.P.C. provides runs as under:
110.Section 296 Cr. P.C. Evidence of formal character on affidavit (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may , subject to all just expectations, be read in evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in the affidavit.
111.This statutory provision reveals that evidence of formal witnesses like Duty Officers, DD Writers, Dispatch Riders, Photographers, Crime Team Members, PCR Staff , Draftsman, Sr. Police Officers viz. DCPs and above who accord sanction and other such witnesses, can be placed on record by way of affidavit.
112.It is found that neither of the above benevolent provisions are being used or insisted upon by the Prosecution Department and as a result formal witnesses like Duty Officer and MHCM etc. are constrained to appear in Court and depose about formal documents and all this not only results in wastage of unaccounted man hours but also results in wastage of judicial time. As such in order to increase the efficiency of criminal trial it is a need of Page 42/45 of judgment State vs. Birsan & ors dt.27.1.2012 43 the hour that Prosecution Department invokes the above provisions for achieving better disposal of criminal cases. And this would also help in decongesting the jail. As such let the copy of this judgment be sent to Office of Commissioner of Police, Delhi and Director of Prosecution, Delhi who shall work out and formulate ways and means to implement the above two statutory provisions, in criminal prosecutions and trials in Delhi. Action taken report may be sent to this Court. Once implemented , this would ensure speedy trial of criminal cases and would cut short the delays and save thousands of man hours daily.
113.Another important aspect which came to the notice of this Court during the trial of this case is that while proving the postmortem report of the deceased Sonu , PW9 Dr. Anil Shandilya simply gave four lines statement before Ld. Predecessor of this Court, merely exhibiting his totally illegible PM Report.
114.It is a settled legal preposition as per case titled , " Munshi Prasad Vs. State of Bihar" AIR 2001 SC 3031 wherein Hon'ble Supreme Court held, "The postmortem report is a document which by itself is not a substantive evidence. It is the doctor's statement in Court, which has the credibility of a substantive evidence and not the report, which in normal circumstances ought Page 43/45 of judgment State vs. Birsan & ors dt.27.1.2012 44 to be used only for refreshing the memory of the doctor witness or to contradict whatever he might say from the witness box and the significance of the evidence of the doctor lies visavis the injuries appearing on the body of the deceased person and likely use of the weapon therefore and it would then be prosecutor's duty and obligation to have the corroborative evidence available on the record from the other prosecution witnesses."
115. In case titled State of Punjab Vs. Mohinder Singh 2008 (3)RCR Crl. 226 P&H DB Hon'ble High Court came across in a murder case where medical term was not correctly recorded in the deposition of the Doctor. It was held that:
" In order to ensure that medical evidence is placed on record of Court in correct and clear terms, the Presiding Officers of Courts at the time of recording of evidence of Doctors, who are produced as Expert Witnesses , Court shall ask them (Medical Doctor etc) to submit medical reports and affidavit in clear terms with correct spellings. "
116.Practice of recording of cryptic four lines statements by Doctors who conducted post mortem is quite prevalent in Delhi and this can lead to serious miscarriage of justice. In the light of above Hon'ble Supreme Court judgment , this Court had to recall PW9 Doctor for recording his complete statement. Upon being asked, this Court was informed that there is no Page 44/45 of judgment State vs. Birsan & ors dt.27.1.2012 45 system in place where Doctors can get their affidavits prepared before arriving to the Court for deposing as a witness. As regards the illegible handwritings of the Doctors, directions of Ld. Sessions Court at Rohini to have clear and legible typed / printed MLCs,have reportedly been upheld by Hon'ble Delhi High Court in Crl.Misc.No 3701/2010.Things can be further improved by having an arrangement where the concern PM Doctors bring their detailed examination in chief by way of affidavit in terms of Section 296 Cr.P.C. The ministerial arrangement in this regard shall be worked out by Directorate of Prosecution and Department of Health and Family Welfare, in consultation with each other and with active participation of Medical Supdts. of Delhi Government Hospitals. As such copy of this order be sent to the above offices for doing the needful under intimation of this Court.
ANNOUNCED AND DICTATED (SURINDER S. RATHI)
IN OPEN COURT ON : 27.01.2012 Addl. Sessions Judge02
Central : Delhi
Page 45/45 of judgment State vs. Birsan & ors dt.27.1.2012