Delhi District Court
State vs . 1. Gopal Mistry on 16 April, 2014
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE:
SC No. 33/13
FIR No. 216/09
PS: Govindpuri
State Vs. 1. Gopal Mistry
S/o Sh. Kali Pado Mistry
R/o House No. 119, Gali No. 5,
Bengali Colony, Chhuriya
Mohalla, Tughlakabad Village,
New Delhi.
2. Anil Kumar
S/o Sh. Mohan Singh
R/o House No. K219, Northern
Basti, Lal Kuan, Sangam Vihar,
New Delhi.
__________________________________________________________
Date of Institution : 03.11.2009
Date of arguments : 02.04.2014
Date of judgment : 16.04.2014
JUDGMENT
On 03.06.2009 at 12.05 am, an information was received in police station Govindpuri about a quarrel at Okhla round about. It SC No. 33/13 1 of 18 was recorded as DD No. 27A. At 12.35 am on same day, another information was received that one person was lying unconscious at round about Okhla. It was also recorded in PS Govindpuri as DD No. 70B. Copies of both of these were sent to SI Hansraj through Ct. Anil Kumar. IO reached at spot and found one RTV No. DL1VA0832 at Anandmayee Marg opposite BBlock Transit Camp and one person was lying dead there. HC Mukesh Kumar as well as Ct. Yogender had overpowered two boys. HC Mukesh Kumar gave statement to IO, narrating the incident as under: "I am employed with the Delhi Police as head constable and am deputed in PS Govindpuri.
Tonight i.e. night intervening 2nd and 3rd June, 2009, I as well as Ct. Yogender remained present at police picket Okhla round about from 6.00 pm to 6.00 am. At about 11.55 pm, one passerby person told us about a vehicle RTV parked at Anandmayee Marg connecting Kalkaji Mandir, M.B. Road and that some persons were beating a man inside that vehicle. I alongwith Ct. Yogender went there. We found an RTV No. DL1VA0832 parked at a distance of about 7080 steps from traffic signal Okhla round about. Two persons who were known as Gopal Mistry and Anil Kumar (both accused) were beating a person inside that vehicle. They i.e. accused were threatening said person to kill, saying as why he dared to steal battery of their vehicle. Both of them picked that victim and threw him outside RTV. We succeeded in overpowering both of them, after a struggle. I apprehended Gopal Mistry, while Ct. Yogender overpowered Anil Kumar. On being checked, the victim was found to have died."
SC No. 33/13 2 of 18 IO made endorsement Ex. PW18/C on that statement, on the basis of which, FIR in this case was registered.
After registration of FIR, further investigation was handed over to Inspector Mahender Singh. On the pointing of HC Mukesh Kumar, IO prepared site plan. Crime team was called, which inspected the spot and took its photographs. IO seized blood sample from blood lying inside said RTV. IO also seized one belt, which was blood stained, a pair of slippers as well as a battery, all of which were lying in that vehicle. Crime branch reached at spot. SI Mahesh prepared site plan. Both of accused were arrested. The victim was known as Bharat Singh Rathore. IO got postmortem conducted on the dead of said deceased and collected report from the doctor concerned. After completion of investigation, both of accused were indicted for offence punishable U/s 302/ 34 IPC Both of accused were charged by this court on 07.05.2010 for the said offences. They pleaded not guilty and claimed trial, after charge was read over and explained to them.
In order to bring home its case, prosecution examined 20 witnesses in total. Sh. Neeraj was examined as PW1, Ct. Yogender as PW2, HC Umed Singh as PW3, Sh. Rahul as PW4, HC Ram Roop as PW5, SI Vijay Pal Singh as PW6, HC Kapil as PW7, Sh. Sunil Kumar as PW8, lady Ct. Reena as PW9, Sh. Anil Kumar Ashoka as SC No. 33/13 3 of 18 PW10, Dr. Sunay Mahesh as PW11, Sh. Dinesh as PW12, lady Ct. Saroj as PW13, SI Mahesh Kumar as PW14, ASI Girwar Singh as PW15, Ct. Manoj as PW16, HC Rajesh Kumar as PW17, SI Hansraj as PW18, HC Mukesh Kumar as PW19 and Inspector Mahender Singh as PW20.
The accused in their statements recorded U/s 313 Cr.P.C when incriminating evidence was put to them, denied the same as incorrect. As per accused Gopal Mistry, he was not present at spot at the time of incident. Police persons came to his house in the intervening night of 2nd and 3rd June, 2009 and implicated him in this case. He was not driver of any such RTV. He has no driving licence and hence could not be a driver. According to accused Anil Kumar, he was innocent and falsely implicated in this case. The accused examined Smt. Seema Burman as DW1, Sh. Rajesh Sarkar as DW2 and HC Samay Singh as DW3.
I heard Ld. Addl. PP for the state and Ld. Counsel appearing on behalf of the accused.
Complainant HC Mukesh Kumar was examined as PW19 and started telling about the incident. During his examination, this witness told to the court that he was suffering with brain hemorrhage and was getting treatment. Ld. Addl. PP requested the court to drop said witness, saying that he was not mentally sound. HC SC No. 33/13 4 of 18 Mukesh Kumar was thus discharged without his cross examination by the accused and hence no reliance can be placed on his deposition.
Ct. Yogender (PW2) who is stated to have reached at spot alongwith HC Mukesh Kumar, tautologized the story as disclosed by HC Mukesh Kumar to the IO of case. According to him, in the intervening night of 2nd and 3rd June, 2009, he was on picket duty alongwith HC Mukesh Kumar at Okhla Golchakkar from 6.00 pm to 6.00 am. At 11.55 pm, one person came to them and told that two persons were beating a man inside an RTV, which was parked across police picket at Anandmayee Marg. They immediately ran and reached inside the RTV bus. They saw two persons beating another badly inside the bus. When they shouted at those two persons, they threw the injured outside the bus and turned towards exit gate of bus. They immediately apprehended both of accused, who were known as Anil Kumar and Gopal Mistry. On being inquired, the accused persons told them that injured had stolen battery of their RTV bus, therefore they were beating him. On being checked the injured, who was lying on the road, was found dead. After some time, SI Hansraj reached there. They apprised him about the incident. PW2 also verified the IO, having picked a blood stained belt, blood sample, battery of RTV and a pair of slippers which were of light yellow colour and belonging to deceased, having been seized from that vehicle. All these were kept in different pulandas SC No. 33/13 5 of 18 and sealed by seal of MSG. The accused were arrested.
Sh. Neeraj (PW1) was a guard at Nasha Mukti Kendra (Drug Deaddiction Centre), Khanpur. He told to the court that one day, in year 2009 at about 10.30 pm, he alongwith his friends and neighbours Dinesh Kumar, Dharmender Singh and Rahul went for toilets in a vacant plot near Okhla Golchakkar. One unknown person came to them and told that some people were beating one man inside RTV bus, which was parked near corner of park of Okhla roundabout. They went near said RTV bus. Dinesh and Dharmender went inside it and told to him that one person was being beaten inside the bus. He informed police control room at number 100. Meanwhile, they saw two police personnels standing across the roundabout and informed them about the incident. Rahul (PW4) and Dinesh (PW12) supported the facts as disclosed by Neeraj (PW1).
Lady Ct. Reena (PW9) deposed in the court that in the night of 2nd and 3rd June, 2009, she was on duty in police control room at Channel No. 135. She received a call from Okhla Golchakkar at 11.44 pm on that day, which was recorded by her on PCR form, photocopy of which was mark A. Lady Ct. Saroj (PW13) was also posted in police control room in the night of 2nd and 3rd June, 2009. According to this witness, at about 12.34 am, a call was received from one Sunil Kumar that at Okhla Golchakkar, one person was lying unconscious. She SC No. 33/13 6 of 18 recorded information in PCR form and passed it on to communication net. Copy of same is Ex. PW13/A. HC Umed Singh (PW3) was duty officer in PS Govindpuri on 02.06.2009. As per this witness, he recorded DD No. 44B about departure of HC Mukesh Kumar and Ct. Yogender for Okhla picket on that day. Copy of said DD is Ex. PW3/A. HC Ram Roop was another duty officer in PS Govindpuri in the intervening night of 2nd and 3rd June, 2009. As per him, at 2.15 am in that night, Ct. Anil came to him and gave a rukka sent by Inspector Mahender Singh, on the basis of which he recorded FIR No. 216/ 09 (Ex. PW5/A). After recording it, copy of said FIR was handed over to Ct. Anil Kumar alongwith rukka, who left for spot immediately.
SI Hansraj (PW18) verified HC Mukesh Kumar having given statement to him. He (PW18) made endorsement on it and got FIR registered. After registration of case, further investigation was marked to Inspector Mahender Singh, who came at spot alongwith Ct. Anil. Crime team headed by SI Vijay Pal also reached there. Both of accused were handed over to Inspector Mahender Singh by him. IO prepared site plan at the instance of HC Mukesh Kumar. SI Mahesh Kumar (draftsman) took rough notes at the instance of HC Mukesh Kumar. Both of accused were arrested. Their personal search was conducted by the IO. Both of them gave disclosure statements. This SC No. 33/13 7 of 18 witness also stated about taking of blood sample by the IO from spot, in gauze. It was kept in a pulanda and sealed by seal of MSG. One bloodstained belt was lying inside the bus. One battery was found near gate of RTV bus. It was make 'Exide Max'. One pair of light yellow colour plastic slippers were also found there. All these were seized by the IO alongwith said RTV bus. On the right hand of deceased, Bharat Singh Rathore Biloti was engraved. Dead body was sent to mortuary of AIIMS. Postmortem was got conducted on 10.06.2009 and doctor handed over clothes of deceased, blood in gauze and sample seal, which were seized vide seizure memo Ex. PW17/A. Dead body of victim was brought to Sarai Kale Kha Electric Crematorium Ground. It was handed over to Sub Registrar (B & D). Receipt/ memo in this regard is Ex. PW18/H. This witness identified articles of case property i.e. slippers and belt as same, which were seized by the IO in his presence.
Inspector Mahender Singh (PW20) was IO of the case and told to have reached at spot on 03.06.2009 after registration of FIR, when further investigation was entrusted to him. This witness told about SI Hansraj, HC Mukesh Kumar and Ct. Yogender having met him at spot. They briefed him about the incident. A dead body was lying about 7080 away steps from RTV No. DL1VA0832. HC Mukesh Kumar and Ct. Yogesh handed over to him accused Gopal Mistry and Anil Kumar. He inspected the spot and found blood lying on the floor SC No. 33/13 8 of 18 of said vehicle. One belt, stained with blood, was also lying in it. He recorded statement of aforesaid witnesses and seized said articles as well as blood sample from spot.
ASI Girwar Singh (PW15) was MHC(M) in PS Govindpuri on 03.06.2009 and stated about IO Inspector Mahender Singh, having deposited three sealed parcels in malkhana alongwith one RTV No. DL1VA0832 and a battery. According to this witness, case property mentioned above remained intact, till same remained in malkhana. Ct. Manoj (PW16) told that on 14.07.2009, on the direction of IO, he received sealed pulandas from malkhana vide RC No. 80/21/09 and deposited the same in FSL Rohini. He handed over receipt to the MHC(M). During his possession, pulandas remained intact and none tried to tamper with the same.
Sh. Anil Kumar Ashoka (PW10) deposed in the court that he was owner of RTV No. DL1VA0832, having purchased by him in year 2002. In year 2003, he handed over said bus to one Sunil on a monthly contract. On 13.08.2009, he received a call from PS Govindpuri as well as from said Sunil. He went to PS Govindpuri and came to know about a murder, having taken place inside his bus mentioned above. The bus was seized by police. Sunil Kumar was examined as PW8. As per this witness, he was having business of transport. RTV bus No. DL1VA0832 was taken by him from Anil SC No. 33/13 9 of 18 Kumar on a monthly contract. He used to run said bus from Badarpur to Nehru Place, on route No. 403. He had employed Gopal Mistry (accused) as driver and Anil Kumar as conductor on that bus. According to this witness, on 02.06.2009, there arose some defect in that bus, which was parked near Okhla Golchakkar. Anil Kumar and Gopal Mistry were deputed to protect that bus. At 11.30 pm, he received a telephone call from the police. He went at spot. One man was lying on road near the bus. Gopal Mistry and Anil Kumar were sitting inside the bus. PCR officials reached there. Said victim had already died and hence PCR officials said that there was no need to take him to hospital.
SI Mahesh Kumar (PW14) was draftsman and told about going to spot on 03.06.2009. On the request of SI Mahender Singh, he inspected the spot, took rough notes at the instance of HC Mukesh Kumar and prepared site plan Ex. PW14/A. SI Vijay Pal was Incharge crime team. As per him, in the night of 2nd and 3rd June, 2009 at about 2.00 am, he received information from police control room and went to spot at Anandmayee Marg. One dead body was lying near RTV bus, which was parked there. He inspected the spot. Ct. Kapil took photographs of site. He prepared report Ex. PW6/A. All this is verified by HC Kapil (PW7), who was also a member of mobile crime team.
HC Rajesh Kumar (PW17) told about postmortem SC No. 33/13 10 of 18 having been conducted in AIIMS mortuary on 10.06.2009. After postmortem, doctor handed over a sealed parcel containing clothes of deceased and his blood sample alongwith a sample seal. He handed over all these to the IO, who seized the same vide seizure memo Ex. PW17/A. Dr. Sunay Mahesh (PW11) told about postmortem, having been conducted by him on the dead body of Bharat Singh Rathore on 10.06.2009. After examination, this witness found more than 20 injuries on the dead body well mentioned in postmortem report and in the statement given by the witness. According to said witness, the victim died due to shock having suffered multiple antemortem injuries, caused by blunt external force. Injuries mentioned at serial No. 120 including head injury were sufficient to cause death of a person in ordinary course of nature.
Smt. Seema Burman (DW1) told about accused Gopal Mistry being present at the house of one Manoj between 1011 pm on 02.06.2009. As per said witness, their neighbour Manoj died on 01.06.2009 and his cremation took place on 02.06.2009. Sh. Rajesh Sarkar (DW2) told that he knew accused Gopal Mistry, who was working with him as a painter. Gopal Mistry worked with him till 02.06.2009. On 04.06.2009 on being inquired by him, wife of accused informed that he i.e. Gopal Mistry was arrested by police. HC Samay SC No. 33/13 11 of 18 Singh (DW3) brought summoned record i.e. DDs recorded in PS Govindpuri on 02.06.2009 and 03.06.2009. As per this witness, Ex. PW20/C, Ex. DW3/A and Ex. DW3/B were true copies of DD No. 44B, 29A and 30A as per register brought by him in the court.
It is contended by ld. defence counsel that prosecution failed to prove its case beyond reasonable doubts. According to postmortem report, there were more than 20 injuries on the dead body, while as per eye witness Ct. Yogender, the accused persons were seen beating victim by fists and slaps. According to Ld. Counsel, such injuries could not have been caused simply by beating given by fists and slaps. Ld. Counsel pointed out that there was delay of two hours in recording FIR, which is not explained by the prosecution. All this was fatal to the case of prosecution. Even otherwise, as per Ld. Counsel, accused had no intention to kill a person like victim in this case simply on an attempt to steal a battery. It is not case of prosecution even that there was any previous enmity between accused and the victim. The latter was totally stranger to the accused and hence there was no reason for them (accused) to kill him. During the personal search of accused persons, nothing was found from their possession. As per Ld. Counsel, it was not possible that they were not carrying anything with them. According to PW8 when police officials of police control room reached there, the victim was already dead and hence they told that there was no SC No. 33/13 12 of 18 need to take victim to hospital. Ld. Counsel questioned that when police persons i.e. HC Mukesh Kumar and Ct. Yogender were already present at spot, what was need to call PCR. As per Ld. Counsel, HC Mukesh Kumar and Ct. Yogender were introduced later on, they were not eye witnesses of incident. Even otherwise, if said HC Mukesh Kumar and Ct. Yogender had seen the accused persons, beating the victim, why they did not try to save him. The battery is stated to have been seized from said RTV bus. In this way, it is not believable that how theft of same could have been committed. Contending all this as well as the fact that DW1 Ms. Seema Burman told about accused Gopal Mistry being present at the house of their neighbour Manoj, who died one day before the incident i.e. 01.06.2009, it is not established that accused Gopal Mistry was present at spot. According to Ld. Counsel, the witnesses examined by the accused are equally reliable as the witnesses examined by prosecution.
No gainsaying that all the witnesses, may be examined by the prosecution or the accused, are equally reliable. Smt. Seema Burman (DW1) stated in the court that from 1011 pm on 02.06.2009, accused Gopal Mistry remained at the house of their neighbour Manoj having died on 01.06.2009 and his cremation took place on 02.06.2009. This witness also brought death certificate (Ex. DW1/1) of one Manoj. I find weight in the contention of Ld. Addl. PP, stating that if accused SC No. 33/13 13 of 18 Gopal Mistry remained really at the house of his neighbour Manoj on 02.06.2009 during 8.00 pm to 11.00 pm, why said witness i.e. Smt. Seema Burman did not approach the IO and gave statement in that regard. It is not the plea of anyone that IO did not record statement of Seema Burman despite being offered by her. Moreover, said witness did not lodge any complaint if she was not examined by the IO or had witnessed Gopal Mistry being present at the house of Manoj on 02.06.2009 at the time mentioned above. Similarly, Rajesh Sarkar (DW2) also stated about accused Gopal Mistry being a painter and worked with him till 02.06.2009. There is no other evidence to prove said fact except a bald statement given by said witness. Death of victim Bharat Singh Rathore is well proved from the statement of Anil Kumar Ashoka (PW10), Inspector Mahender Singh (PW20), SI Hansraj (PW18) and SI Mahesh Kumar (PW14), who stated to have reached at spot on receipt of information and found said victim lying there, dead. HC Rajesh Kumar told about postmortem having been conducted on his dead body. Dr. Sunay Mahesh (PW11) performed postmortem on the dead body of victim on 10.06.2009 and noted at least 20 injuries on the dead body.
HC Mukesh Kumar and Ct. Yogender are stated to be eye witnesses of incident. As discussed above, HC Mukesh Kumar was dropped on request of Ld. Addl. PP. Ct. Yogender told about accused SC No. 33/13 14 of 18 persons having seen by them beating the victim and when they shouted at them, the accused threw injured outside the bus. There is nothing on record to conclude that said witness i.e. Ct. Yogender told a lie. I do not find much substance in plea of ld. defence counsel, alleging that being a police officer, said witness i.e. Ct. Yogender cannot be relied upon. Police witnesses are equally reliable witnesses. It was held by the Apex Court in a case titled as Hazari Lal Vs. State (Delhi Administration) AIR 1983 SC 873 that evidence of a police officer laying trap if found reliable, can be accepted without corroboration. In case Aher Raja Khima Vs. State of Saurashtra AIR 1956 SC 217, the Supreme Court held that the presumption that a person acts honestly applies as much in favour of police officer as of other persons, and it is not a judicial approach to distrust and suspect him, without good grounds therefore. Such an attitude could do neither credit to the Magistrates nor good to the public. It only runs down the prestige of the police administration.
As per Sh. Neeraj (PW1) when he alongwith his friends and neighbours Dinesh Kumar, Dharmender and Rahul was going for toilets, on being pointed by some unknown person, they went to an RTV bus parked near corner of park Okhla round about and saw that one person was being beaten inside the bus. Meanwhile, they saw two police persons standing across the road and informed them about the incident. Trite it to say that said Ct. Yogender and HC Mukesh Kumar SC No. 33/13 15 of 18 are stated to have reached at spot on being informed by said Neeraj etc. In this way, both of them i.e. Ct. Yogender and HC Mukesh Kumar were natural witnesses of incident. There is nothing to disbelieve testimony of Ct. Yogender in this regard. The fact that both of accused were deployed on said RTV bus and were present in that bus at the time of incident, is well established from the statement of Sh. Anil Kumar Ashoka (PW10), who was owner of said bus.
Even if the victim was beaten by accused by fists and slaps, I do not agree with ld. defence counsel, alleging that such injuries were not sufficient to cause death of a person. Dr. Sunay Mahesh (PW11) who conducted postmortem on the dead body of victim Bharat Singh Rathore, has opined that death in this case was caused due to multiple antemortem injuries caused by blunt external force and injuries mentioned at serial No. 1 to 20 including head injury were sufficient to cause death of a personal in ordinary course of nature. No reason to disbelieve Dr. Sunay Mahesh.
As per case of prosecution, the accused persons gave beatings to the victim, as he was found stealing battery of their vehicle. In this way, it cannot be concluded that accused persons had no intention to give beatings to the victim. However, there is no evidence on record to establish that accused really intended to kill said person i.e. victim. Moreover, it is well settled that if case is otherwise well proved SC No. 33/13 16 of 18 on record, it is immaterial that accused had no intention to kill the victim.
Even if nothing was recovered from the personal search of accused, there is no surprise in it. It is not necessary that a person always carries valuables with him and hence I do not find much substance in this contention of ld. counsel. So far as the query of ld. defence counsel as that when two police officers i.e. HC Mukesh Kumar and Ct. Yogender were already present at spot, what was need to call police control room to send police at spot, the reply lies in the deposition of Sh. Neeraj (PW1), who is stated to have called police control room. As per this witness, after seeing a person being beaten inside the bus, he informed police control room at No. 100. Meanwhile, they found two police personnels standing across the roundabout. From the testimony of this witness i.e. PW1, it is clear that the latter had already informed police control room, when he noticed two police officers i.e. HC Mukesh Kumar and Ct. Yogender near that roundabout.
The contention of ld. counsel that HC Mukesh Kumar and Ct. Yogender did not try to save the victim when they saw the accused persons beating him, is also not tenable. It is disclosed by Ct. Yogender (PW2) that when they saw two persons i.e. accused beating another inside the bus, they shouted at those persons i.e. accused, but they i.e. accused threw immediately the injured outside the bus. In this SC No. 33/13 17 of 18 way, it cannot be concluded that said police persons i.e. Ct. Yogender and HC Mukesh Kumar did not make any effort to save the victim, from being beaten by accused.
Even if there was delay of about two hours in registration of FIR as is contended by ld. defence counsel, same is not unreasonable and case of prosecution cannot be thrown away simply on this ground.
On the basis of above discussion, it is well proved that it were accused, who gave beatings to victim Bharat Singh Rathore and injuries caused in this way resulted in latter's death. As mentioned above, it is not established on record that accused had any intention to kill the victim or they knew that the injuries being inflicted on the person of victim were such that death was most improbable result. From the evidence on record, it is evident that both of accused acted in concert with each other, to beat the victim. Both of them are thus convicted for offence punishable U/s 304/ 34 IPC.
Announced in open court (RAJENDER KUMAR SHASTRI)
today i.e 16th April, 2014 Addl. Sessions Judge02:South East
Saket Court: New Delhi
SC No. 33/13 18 of 18