Delhi District Court
State vs . (1) Raghunath on 20 July, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE - II (NORTH-WEST): ROHINI COURTS: DELHI
Session Case No. 999/09
Unique Case ID No. 02404R0009052009
State Vs. (1) Raghunath
S/o Sh. Shiv Lal
R/o VPO Roni-Saidpur,
Distt. Sitamarhi,
Bihar.
(Acquitted)
(2) Deena Nath
S/o Balo Mehto
R/o VPO Kachra,
PS Sor Bazar,
Distt. Saharsa, Bihar
(Acquitted)
(3) Sikander Yadav
S/o Sharif Lal Yadav
R/o Mahesh ka Lakri Ka
Godown, Shani Bazar
Road, Shardhanand
Colony, Swaroop Nagar,
Delhi
(Acquitted)
(4) Naresh Chaudhary
S/o Sh. Ram Roop
R/o J-60, Gali no.1,
3 ½ Pusta Kartar Nagar,
Usmanpur, Delhi
(Acquitted)
(5) Mahesh Chaudhary
S/o Sh. Ram Roop
Jeet Ram Colony,
Behind School, Budhpur,
Delhi.
(Acquitted)
St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 1 of 30
FIR No. 168/08
Police Station: Swaroop Nagar
Under Section: 302/34 Indian Penal Code
Date of committal to sessions court: 12.1.2009
Arguments heard on: 9.6.2010
Last date for filing the written synopsis: 15.7.2010
Date of decision: 20.7.2010
JUDGMENT:
As per the allegations the accused Raghunath, Deena Nath Patel, Sikander Yadav, Naresh Chaudhary and Mahesh Chaudhary in furtherance of their common intention committed murder of one Munna Khan on 20/21.8.2008 by causing injuries with wooden danada and fatta, fist and kick blows and caused his death.
BIREF FACTS:
Case of the prosecution:
The case of the prosecution is that on 21.8.2008 pursuant to DD No. 51B, SI Rajender Singh of police station Swaroop Nagar reached at House No. 1618-E, Shardhanand Colony where he found the dead body of one Munna Khan. The wife of the deceased Munna Khan namely Smt. Maina was also present there who told the police that on 21.8.2008 at about 3 - 3:30 pm her husband came home and he was smeared with mud after which she helped him in bathing and thereafter, he laid down on the cot. Smt. Maina also told the police that on persistent asking Munna Khan told her that in the night when he was coming home from Shani Bazar Road, the people of Godown of Mahesh beaten him under the impression of thief and he received St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 2 of 30 injuries. Munna Khan expired soon thereafter.
On the basis of the said statement of Smt. Mainia, the present FIR has been registered and the accused persons were arrested and charge sheeted.
CHARGE:
Vide order dated 16.2.2009 the Ld. Predecessor of this court has settled the charges under Section 302/ 34 Indian Penal Code against the accused Raghunath, Deena Nath Patel, Sikander Yadav and Naresh Chaudhary to which they have pleaded not guilty and claimed trial. The accused Mahesh Chaudhary was arrested on 13.2.2009 and therefore, the charges under Section 302/34 have also been settled against him on 19.3.2009.
EVIDENCE:
In order to prove its case the prosecution has examined as many as 11 witnesses:
Public Witnesses/Eye Witnesses:
PW1 Smt. Maina is the complainant who has deposed that on the night of 20/21.8.2008 her husband Munna Khan went outside and did not turn up. She has deposed that occasionally he did not return during the night, when he was held up for work and when he consumed liquor he did not stay back on account of drunkenness. According to PW1, on 21.08.08 at about 3:00 pm her husband returned and was smeared in mud and were having torn clothes and she helped him in bathing and changing his clothes. She has deposed that since her husband was not feeling well he lay on the cot and on her asking he told her that on 20/21.08.08 when he was passing St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 3 of 30 through timber depot on Shani Bazar Road he was beaten by Mahesh, Owner of the depot and by his employees taking him to be a thief. According to her, she did not notice any bleeding but there were abrasions, sign of injuries and penetrating wound near his right eyebrow and she went to bring water for him but he had expired. She has proved her statement which is Ex. PW1/A and the site plan prepared at her instance which is Ex.PW1/B. She has also deposed that the mud smeared and semi torn clothes were thrown by her. The witness has further stated that her husband used to wear a Tabeez with word Allah inscribed on it in his neck. She has duly identified the said Tabeez which is Ex.P-1.
In her cross-examination she deposed that she has three sons, eight daughters, all of them living together and her Shehjad used to reside with them who also helped her in bathing her husband. She has deposed that after her gaining of unconsciousness at 11:00 pm neighbours had collected, even after enquiry from the police about the cause of death she did not make any statement as she was under shock. She has denied that her husband was a habitual drunkard or he often did not return home during the night under the influence of liquor. She has, however, denied that she had named the accused Mahesh and his employees to be the assailants on the asking of the police so that she can extract money from them.
PW2 Amzad Khan is the son of the deceased Munna Khan who has deposed that the postmortem on the body of his father was conducted at BJRM Hospital. He has corroborated the testimony of her mother to the extent that his father told his mother (PW1) in his presence that Mahesh and his five employees gave him beatings and he revealed the name of one of them to be Sikander and was not aware St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 4 of 30 of any other name. According to him, on 22.08.08 police recorded the statement of his mother at about 5:00 pm after the evening Namaaz after which he went with the police party to join investigation and when they reached near Gujjar Chowk an informer came and told the police officials that Sikander and other accused persons were planning to flee and were available at Durga Chowk near Milk Dairy. He has deposed that they went to that spot and apprehended three accused persons i.e. Sikandar, Dina Nath and another accused whose name he does not remember. The witness has further deposed that all the said three accused persons disclosed that they had given beatings to his father using three fattas. He has also deposed that a Tabeez of his father was found in the Godown/ Timber Depot which he identify to be that of his father and was kept in a cloth pullanda and sealed with the seal and seized vide memo Ex.PW2/A. PW2 has deposed that accused persons disclosed that on asking of their employer Mahesh they had thrown his father near Gas Agency, Shradhanand Colony pursuant to which they led the police party to the said spot. According to the witness, from the Godown/ Depot police had seized three wooden fattas, which were kept in sealed pullandas and seized vide memo Ex.PW2/B, PW2/C and Ex. PW2/D and a rickshaw was also seized vide memo Ex. PW2/D. He has proved that the disclosure statement of accused Sikandar, Dinanath and Raghunath were also recorded in his presence which are Ex.PW2/E, Ex.PW2/F and Ex.PW2/G. He has duly identified the case property Tabeez Ex.P1 and the Rickshaw which is Ex. PX.
The witness has been cross-examined by the Ld. Addl. PP for the State wherein he has examined that three accused person whose name were subsequently revealed to be Dina Nath, Raghunath and St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 5 of 30 Sikander were apprehended by the police at the instance of informer and the above said three accused persons had disclosed that all the three of them along with their employer Mahesh and Naresh had caused beatings of a person inside the godown of Mahesh on the night of 20.08.08. PW2 has also admitted that thereafter disclosure statements of the accused persons were recorded and that the accused persons than led the police party to the Gas Godown, Sharadhanand Colony where they pointed the spot where they had thrown his father in an unconscious condition. Witness has also admitted that thereafter the accused persons led the police party to the timber godown of Mahesh, where they individually got recovered three wooden planks(fattas) and one of the fattas was picked up by the investigating officer. The witness has proved the arrest memos of the accused Raghunath, Deenanath and Sikander Yadav which are Ex.PW2/G, PW2/H & PW2/J and their personal search memos which are Ex.PW2/K, Ex.PW2/L & PW2/M. He has also identified the wooden fattas/ dandas got recovered by the accused Sikander Yadav, Raghunath and Dina Nath.
In his cross-examination by the Ld. Defence Counsel he has deposed that only himself and his mother helped his father to bathe and Shahjad (his uncle) or Ashwani were not present. He has also deposed that his mother helped his father in wearing a Kurta Paijama. According to him, he had put his thumb impression on the papers, when the same were being prepared but he does not know the contents of the same.
PW4 Anil Kumar has deposed that the timber depot/shed at Shani Bazar Road was owned by his uncle Daljeet Singh and the same was given on monthly rental @ 12,000/- to accused Mahesh.
St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 6 of 30 According to him, he used to collect the rent every month and handed over the same to his uncle but he did not issue any rent receipt to accused Mahesh.
In his cross-examination the witness has admitted that there is no boundary wall on the aforesaid depot/shed and the same had an open access to any person. He has deposed that Rickshaw/Rehri were also parked by the accused and his employees in the shed and has admitted that accused persons had requested him several times to get the depot/shed boundary wall, to avoid thefts.
Medical Evidence:
PW10 Dr. Rishi Parkash Singh has proved having conducted the postmortem of the deceased Munna Khan S/o Shakur on 22.08.08 vide report 840/08 when he was posted in BJRM Hospital as Sr. Resident. He further deposed that there was alleged history of found lying near Kamla Karan Gas Agency on 21.08.08 and was taken to his home where he later expired at 03.00 PM on the same day. The witness has proved the following external antemortem injury:
1. Reddish grazed abrasion of size 4 CM x 4 CM present on left cheek 4 CM medial to tragus,
2. Reddish abrasion of size 3 CM x 3 CM present on lateral half of right eye brow,
3. Reddish abrasion of size 3 CM x 3 CM present on right cheek over maxillary prominence,
4. Reddish abrasion of size 4 CM x 1 CM present on tragus of right ear placed vertically,
5. Reddish blue contusion present all over left ear,
6. Fresh lacerated wound of size 2 cm x 0.2 cm present on medial surface of left ear, placed vertically, St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 7 of 30
7. Multiple reddish abrasion present in an area of size 10cm x 10 cm on right side of neck,
8. Reddish blue railway track bruise of size 20 cm x 4 cm present on left side chest, placed horizontally 8 cm from mid line and going upto axillary fold,
9. Multiple reddish abrasions in an area of size 8cm x 6cm present over left shoulder,
10. Multiple reddish abrasions present on lower half of chest scattered diffusely on anterior aspect,
11. Reddish grazed abrasions of size 10cm x 7 cm present on left side back of chest, 25cm below shoulder tip,
12. Reddish blue contusion present over whole of dorsum of left hand
13. reddish blue contusion present over whole of dorsum of right hand.
PW10 has also proved that on internal examination the brain and spleen was pale; Neck- extravasation of blood in soft tissues of right side thyroid and Hyoid Bone intact; Chest - fracture of sixth rib of right side at costal margin, hemorrhage present over chest wall at places; Lungs - contusions present on lateral aspect of upper and lower lobe of right lung at multiple sites, both lungs show emphysematous changes and adherent to chest wall, about 100 ml of blood present in pleural cavity; Liver pale gall bladder absent; kidney, contusion present on right kidney; Stomach- about 100 ml of yellowish colour liquid present in stomach.
The witness has deposed that as per his opinion the cause of death was combined effect of shock and respiratory distress as a result of multiple injuries to body and injuries to lung St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 8 of 30 respectively, produced by blunt force impact. According to him, all injuries are antemortem in nature consistent with severe beating and were sufficient to cause death in ordinary course of nature. He has proved that injury no. 8 is caused by hard blunt cylindrical object. He has proved his detailed report in this regard which is Ex.PW2/A. PW10 has also deposed that an application was moved before him by the IO on 8.10.2008 for seeking opinion regarding weapon of offence vis-a-vis the injuries on the body of the deceased along with three separate pullandas marked 1, 2 and 3 respectively with the seal of AK. The witness has proved having opened the said pullandas and having prepared the sketches of the wooden pieces which are Ex.PW2/B; Ex.PW2/C & Ex.PW2/D and has given his opinion to the effect that the injuries mentioned in the postmortem report were possible by the weapons produced before him or by similar such type offence. The witness has proved his opinion in this regard which is Ex.PW2/E. In his cross-examination the witness has deposed that the body was sent along with the inquest papers and this history as alleged in his report was mentioned in that inquest papers. According to him, the abrasions are produced as a result of friction, impact with blunt surface. He has further deposed that copy of FIR was not sent to him along with the dead body but statement of witness Shahzad S/o Abdul Shakur R/o 1618, E-Block, Shardhanand Colony was attached.
Police/ Officials witnesses:
PW3 HC Vijender Singh has deposed that he was posted at Police Station Swaroop Nagar as Duty Officer from 4 pm to 12 (night) on 22.08.08. According to him, on that day he had received St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 9 of 30 rukka sent by SHO Inspector Rajesh Kumar Nathane on the basis of which rukka FIR was recorded copy of which is Ex. PW3/A. He has proved his endorsement on the rukka which is Ex.PW3/B and has also recorded DD No. 23 and 24A in DD Register copies of which are Ex.PW3/C and Ex.PW3/D. PW5 SI Sanjay Kumar, has deposed stated that on 21.08.08 he was posted in Outer Distt. Operation Cell as Incharge Crime Team. According to him, on request of IO/ Inspt. Rajesh Kumar he went to H.No. 1618, Shardanand Colony, E block, Balasva Dairy, Delhi where a dead body of a male namely Malik Munna was lying on a bed. He has deposed that the photographs of the dead body was taken by him and which was inspected by him and the IO directed to send the dead body for postmortem examination and for obtaining the opinion qua the cause of death and time of death and to make further detail inquiry in the matter. He has proved his detailed crime team report which is Ex.PW5/A. PW6 SI Manohar has deposed that he was posted at North-West District as a draftsman on 07.09.08 and on that day he was called by the IO Inspector Rakesh Kumar at Police Station Saroop Nagar from there he along with IO Inspector Rakesh Kumar reached at the spot i.e. H. No. E-1618, Shardhanand Colony, Delhi. He has testified that on the pointing out of the IO Inspector Rakesh Kumar, he took rough notes of the place of occurrence after which he along with the IO reached at wood godown of Mahesh Chand at Shani Bazar Road, Shardhanand Colony and there on the pointing out of IO he took the rough notes and measurements. He has proved that on the basis of those rough notes he prepared two scaled site plans with its correct marginal notes on 08.09.08 and handed over the same to the IO which St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 10 of 30 site plans are Ex.PW6/A & PW6/B. PW7 HC Naresh Pal is the MHCM who has proved that on 22.8.2008 IO SI Rajinder Singh had deposited one box sealed with the seal of FMT BJRM Hospital alleged to be containing viscera of the deceased and sample seal of FMT BJRM. The entry in this regard is made at Sl. No. 253 of Register No. 19 copy of which is Ex. PW7/A. He has also deposed that on the same day IO Inspector Rajesh Kumar had deposited four pullandas sealed with the seal of AK alleged to be containing one danda, wooden fatti of length around 58 cm, one wooden fatti of length around 64.5 cm and one tabeez and one cycle rickshaw. The entry in this regard was made at S. No. 254 of register no. 19 copy of which is Ex.PW7/B. He has also proved that on 25.09.08 SI Rajinder Singh deposited one pullanda sealed with the seal of AK alleged to be containing one Janjir and an entry in this regard was made at S. No. 280 of register no. 19 copy of which is Ex.PW7/C. According to the witness on 3.11.08, the viscera box along with sample was sent to FSL through Ct. Surender Negi vide RC No. 34/21/08 and after depositing the same he had deposited the receipt with him and on 23.01.09 the pullanda along with FSL result was received in malkhana through Ct. Rajender Kumar and an entry in this regard was made in register no. 19 which is Ex.PW7/D. The witness has further testified that on 09.10.2008 the pullandas containing danda and phattis sealed with the seal of AK were handed over to SI Rajender and Ct. Rajinder on the instructions of SHO for taking the opinion of the doctor and after taking the opinion pullandas sealed with the seal of FMT BJRM was deposited in the Malkhana, the entry in this regard of register no. 19 is Ex.PW7/E. He has also proved that on 03.11.2008 the pullandas containing danda and wooden St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 11 of 30 planks along with FSL form were sent to FSL, Rohini through Ct.
Surender Negi vide RC No. 35/21/08 and after depositing the same he had deposited the receipt with him, entry in this regard of register No. 19 is Ex.PW7/F. According to the witness, the case property remained intact during his custody and the same was not interfered by anyone. PW7 has also placed on record the copy of Register containing RC No. 34/21/08 is Ex.PW7/G and the copy of the register containing RC No. 35/21/08 is Ex.PW7/H. PW8 Ct. Manish deposed that on 21.08.2008 he was posted as photographer in Mobile Crime Team, Outer District and after receiving the information, he along with Crime Team reached at the spot at Shardhanand Colony H. No. E- 1618 where at the instance of IO, he took 4 (Four) photographs of the dead body lying on a cot. The negatives are Ex.Pw8/A1 to 8/A4 and the photographs are Ex.PW8/B1 to 8/B4.
PW9 Inspector Rajesh Kumar has deposed that on 22.08.2008 he was posted as SHO PS Swaroop Nagar and on that day he along with his staff went at E-1618 Shardhanand Colony, Swaroop Nagar for making inquiry regarding DD No. 51 B dated 21.08.2008 which was earlier marked to SI Rajinder Singh and at the spot he met Smt. Mena W/o Muna Khan who made her statement which is Ex.PW1/A. According to him, SI Rajinder Singh reached the spot in the meanwhile and handed over to him a copy of DD No.12 A dated 22.08.08, according to which doctor after postmortem verbally told to SI Rajinder that the cause of death of Munna Khan was severe beating and homicidal. The witness has proved having prepared the Rukka which is Ex.PW9/A which he handed over to Ct. Dharmender who was with him, for getting the FIR registered. He has proved having St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 12 of 30 prepared the site plan at the instance of complainant which is Ex.PW9/B after which Ct. Dharmender came back at the spot and handed over to him a copy of FIR and original Rukka. The witness has further deposed that he along with Amzad, the son of deceased and members of his staff went in search of accused and when they reached near Gujar Chowk, he received a secret information that the servants of Mahesh who were also wanted in this case, were in hurry to run away. Thereafter, he alongwith SI Rajender, Ct. Vijender, Amzad, HC Ashok reached at Bhalswa Dairy Pul and made Nakabandi there and after some time three persons who were coming from the side of Gujjar Chowk and at the instance of secret informer they apprehended those three persons. After inquiry they came to know their names as Raghunath, Deena Nath and Sikandar who all were interrogated and arrested vide arrest memo Ex.PW2/H, Ex.PW2/I & Ex.PW2/J and their personal search was conducted vide memo Ex.PW2/K, Ex.PW2/L and Ex.PW2/M. The witness has deposed that the said accused made disclosure statement Ex.PW2/E, Ex.PW2/F & Ex.PW2/G. According to the witness, the accused disclosed that in the night of 20/21.08.08 they were sleeping in the godown of Mahesh where they used to work and owner Mahesh along with his brother Naresh were also doing the work of the godown at at around 11.00 PM they heard some noise and they saw that one person was taking their rickshaw and they apprehended and brought him near Mahesh and Naresh as some theft was going on in the godown for the past many days. The accused have also disclosed that Mahesh and Naresh instigated that he is a thief and asked them to gave beatings and gave one iron chain (Janjir) for tying the hands of that person after which they tied his hands and Mahesh and Naresh gave beatings to him along St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 13 of 30 with them and after some time that person became unconscious and Mahesh asked them to throw him out. The witness has deposed that accused took them at the fields near the gas godown where they had pointed out the place where they had thrown Munna in unconscious condition and thereafter all the three accused took them at the godown of Mahesh and pointed out the place where they gave beating to Munna. Accused Deena Nath produced a danda from the godown and stated that he gave beatings to Munna with the same which danda was sealed in pullanda and sealed with the seal of AK and given Sl. No. 1. The witness has further deposed that accused also produced one richshaw from the godown which Munna was taking away and the Richshaw and pullanda were seized vide memo Ex.PW2/B. According to PW9, accused Raghunath had produced one wooden plank (phatti) from the godown with which he had given beatings to Munna which was put up into a pullanda and sealed with the seal of AK and given Sl. No. 2 and seized vide memo Ex.PW2/C. The witness has further deposed that accused Sikandar had produced one Wooden plank (Phatti) from the godown with which he had given beating to Munna, which was put into a Pullanda and sealed with the seal of AK and was given Sl. No. 3 and seized vide memo Ex.PW2/B. The witness has proved that the place was searched and one tabeej of Silver was found from the godown and Amzad identified the same to be belonging to his father Munna, which Tabeez was put into a pullanda and sealed with the seal of AK and given Sl. No. 4 and seized vide memo Ex.PW2/A. The witness has also proved having prepared the site plan of the godown which is Ex.PW9/B and after completing the investigation accused were sent to police lock and case property was deposited in the Malkhana.
St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 14 of 30 The witness has further proved that on 09.9.2008, SI Manohar, draftsman was called and thereafter they reached at the spot at H. No. E-1618 where he took rough notes and measurements of the spot and thereafter they reached at wooden godown of Mahesh where SI Manohar Lal took rough notes and measurements for preparing the scales site plan and on 08.09.08 he prepared the scaled site plans and handed over to him. PW9 has also deposed that on 08.10.08 three pullandas containing wodden planks and danda were taken from the MHC(M) for taking the opinion from autopsy surgeon and moved the application, carbon copy of which is Ex.PW9/C to the autopsy surgeon for taking the opinion and produced the pullanda before him and doctor had opined that injuries mentioned in the PM report could be possible by the weapon produced and the doctor handed over to him, the subsequent opinion and sketches of the weapon of offence. The witness has also deposed that on 25.09.08 accused Naresh Choudhary was arrested by SI Rajender and got recovered one iron Janjir and the 5th accused Mahesh Choudhary was absconding. He has also deposed that on 03.11.08, the pullandas along with FSL form were sent to FSL through Ct. Surender vide RC No. 34/21/08 and 35/21/08 and thereafter he deposited the receipt with the MHC(M). The witness has proved having prepared the challan against the four accused Raghunath, Sikandar, Deena Nath and Naresh. The 5th accused was got declared PO and his supplementary charge sheet was filed.
According to the witness, 13.02.2009 information was received from SI Jogender Singh of PS Paschim Vihar that accused Mahesh Choudhary wanted in this case had been arrested u/s 41.1 Cr.P.C and he is to be produced on 14.02.2009 which information was St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 15 of 30 recorded vide DD No.46 B in PS Swaroop Nagar, copy of which is Ex.PW9/D. The witness has further deposed that on 16.02.2009 accused Mahesh Choudhary was produced who was interrogated and arrested in this case and his disclosure statement Ex.PW9/F was recorded. The witness has stated that SI Rajender and HC Ashok were also with him after which accused Mahesh Choudhary pointed out the field near gas godown where they had thrown Munna in unconscious condition and thereafter he pointed out his godown where they had given beatings to Munna. The witness has proved the pointing out memo which is Ex.PW9/G. According to PW9, later on FSL result Ex.PX1, PX2 and PX3 were obtained and he prepared the supplementary challan against accused Mahesh.
The witness has duly identified the all accused persons in the court as well as the case property i.e. the Tabeez which is Ex.P-1; cycle rickshaw which is Ex.PX; one danda recovered by accused Deena Nath which is Ex.P2; one wooden plank recovered by accused Ragunath which is Ex.P3 and the wooden plank recovered by accused Sikandar which is Ex.P4.
In his cross-examination the witness has deposed that he received the information about death of a person vide DD No. 51B on 21.08.2008 at about 04.14 PM. The witness has been shown true copy of DD No. 51 B and he admits the same to be the one which was received in the police station but deposed that it was marked for inquiry to SI Rajender Singh, the true copy of which is Ex.PW9/DA. According to him, SI Rajender Singh on that day did not tell him anything about the apparent cause of death as the same was not yet cleared but he told him that it was an un-natural death as he had found St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 16 of 30 some blunt injuries on the body of deceased. The witness has further deposed that he was not present at the spot when it was inspected by the crime team and he had not visited the spot on 21.08.08 at all. According to him, SI Rajender Singh had not shown him any inquest proceedings carried out by him till that time and had not made any inquiry prior to recording the statement of Naina and thereafter preparing the rukka and sending it to police station for registration of the case as to whether any other person as earlier made any statement to SI Rajender Singh or not. According to the witness, on 21.08.08 SI Rajender Singh had not met him at all after his return to the PS in the evening. The witness has been shown true copy of DD No. 75 B on the judicial file and he admits it to be that of the actual DD entry No. 75 B and as having been placed by him along with the charge sheet, true copy of DD entry No.75 B which is Ex.PW9/DB. PW9 has deposed that SI Rajender Singh though had informed him about the incident and the proceedings carried out by him on telephone on 21.08.08 but he did not tell him any specific observation having been made by the crime team. The witness has further deposed that only as per the administrative instructions the investigation of a murder case is to be carried out by an Inspector and not by an officer below the rank of Inspector but there is no bar under the law for carrying out of investigation of a murder case by any officer below the rank of Inspector. According to him, SI Rajender Singh was deputed in the present case in the normal course by the duty officer being the emergency officer and during the course of investigation he had gone through the various documents which were either collected or prepared by SI Rajender Singh. He has also deposed that later on, during the course of investigation it could not be confirmed with St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 17 of 30 sufficient evidence that the information received vide DD No.51B dated 21.08.08 regarding a person lying dead in Swami Shardanand Park, E-414. Gali Harpal Wali, Bhalasva Dairy, was correct or not. According to PW9 the secret informer left the spot after pointing out the three accused persons as prior to that accused Raghunath, Dinanath and Sikander were not known to him.
PW-11 SI Rajender Singh, has deposed that on 21.08.08 he was posted as SI in PS Swaroop Nagar and on that day after receiving DD No.51 B, he along with Ct. Sumer reached at H.No. 1618-E, Shardhanand Colony and inside the house they found the dead body of Munna Khan. He has proved having inspected the dead body and found some scratch marks on the whole body and there was hue and cry after which he made inquiries and recorded the statement of Shahzad for inquest proceedings, which is Ex.PW11/A. Thereafter, Crime team was called and they also inspected the dead body and the photographs of the dead body were taken and the dead body was sent to BJRM Hospital and was kept preserved there for 72 hours. The request in that regard is Ex.PW11/B and thereafter he informed the SHO about the facts of this case. On 22.08.08 he alongwith Ct. Lokender Singh went to BJRM Hospital and after getting identified the dead body, the postmortem examination on the dead body was got conducted. The request for conducting autopsy is Ex.PW11/C and Ex.PW11/D; Form 25:35 is Ex.PW11/E. The witness has deposed that after the postmortem examination, dead body was handed over to the LR's of the deceased and the doctor handed over the viscera of deceased in a box sealed with the seal of FMT BJRM Hospital alongwith sample seal which was seized vide memo Ex.PW11/F and the doctor had told him verbally that it is a case of swear beating. The St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 18 of 30 witness has stated that he thereafter reached at the spot and informed the SHO about the facts of this case. He has further deposed that IO prepared a rukka and handed over the same to Ct. Dharmender for getting the FIR registered.
This witness has corroborated the testimony of PW9 Inspector Rajesh Kumar in toto and has proved the various proceedings conducted by him in his presence.
According to the witness, on 25.09.08, he along with HC Ashok and Ct. Bijender on the direction of SHO went for investigation of this case and when they were present near country made Liquor Shop at Swaroop Nagar, he received a secret information that accused Naresh wanted in this case would come at Durga Chowk, Bhalswa and if raided could be apprehended and on the basis of said information they reached Durga Chowk and he asked 4-5 public persons to join the investigation but none agreed and went away without disclosing their names and addresses. He has deposed that they apprehended accused Naresh Choudhary at the instance of secret informer and the accused Naresh Choudhary was interrogated and arrested vide memo Ex.PW11/G; personal search of accused Naresh was conducted vide memo Ex.PW11/H and the disclosure statement of the accused Naresh Choudhary was recorded which is Ex.PW11/J. The witness has further deposed that thereafter, accused Naresh took them at godown Pehla Pusta, Usman Pur and he had produced one Janjir which was put up into a pullanda and sealed with the seal of RS and seized vide memo Ex.PW11/K which seal after use was handed over to HC Ashok and thereafter accused was sent to police lock up and case property was deposited in Malkhana. PW11 has proved that on 16.02.2009, he remained in the investigation along with HC Ashok St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 19 of 30 and SHO Inspector Rajesh Nathani and accused Mahesh Choudhary was in police custody and made disclosure statement Ex.PW9/F after which accused Mahesh took them at godown at Shardhanand Colony and pointing out Memo Ex.PW9/G was prepared.
The witness has duly identified the case property i.e. the Tabij which is Ex.P1; one cycle rickshaw which is Ex.PX; one danda produced by accused Deena Nath which is Ex.P2; one wooden fatti produced by accused Raghu Nath which is Ex.P3; one wooden plank produced by accused Sikender Yadav which is Ex.P4 and one Janjir produced by accused Naresh Choudhary which is Ex.P5.
In his cross-examination the witness has testified that he received DD No. 51 B at about 0404.15 PM and the place where they gone according to DD No.51 B was about 2 ½ Kilometers away. According to him, the address mentioned in DD No. 51 B was E-414 but when they made local inquiries they found that the correct address was E-1618 but they did not note down the names and addresses of the public person who told them the correct address. According to him, they reached H. No. E-1618 after 10-15 minutes of receiving the call and remained there about three hours. He has further deposed that he did not get the Test Identification of Tabeez conducted as it was already identified by the son of deceased. He has further deposed that he had not contacted the person who lodged DD No. 51 B. He has deposed that he made his arrival entry vide DD NO. 75B and he had mentioned the correct facts. According to him, Crime team reached at the spot at around 06.30 PM and they had given report to him and it had been mentioned in the crime team record that he recorded the statements of the relatives of the deceased. He has further deposed that he had orally informed the SHO regarding the facts of the case on St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 20 of 30 telephone. The witness has stated that the rickshaw was seized because it was produced by accused Deena Nath who had alleged that deceased was trying to steal this rickshaw. He has further deposed that statement Ex.PW11/A of Shehzad had been correctly recorded and that he had no knowledge about the fact that accused Mahesh was in hospital at the time of offence.
Statement of accused/ defence evidence:
After completion of the prosecution evidence statements of all the accused have been recorded under Section 313 Cr.P.C. wherein all incriminating evidence has been put to them which they have denied. Accused Deena Nath has stated that he is a poor person and has come to Delhi on 30.7.2008 for employment purpose and he has been falsely implicated in the present case. Accused Sikander has stated that he had come from Bihar just four days prior to the incident only to seek a job and he has been falsely implicated. Accused Raghunath has stated that he is a poor person and had come to Delhi for employment purposes and has been falsely implicated. Accused Naresh Chaudhary has stated that he is a resident of Usmanpur and was lifted from his residence. According to him, he has nothing to do with the present incident and has been falsely implicated. Accused Mahesh Chaudhary has stated that he was in village Balhari, Bihar on the date of incident when he received a call from his workers that some labourers had been arrested by the police. According to him, when he come back and went to the police station when he was falsely implicated in the present case.
FINDINGS:
I have heard the arguments advanced before me and also St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 21 of 30 considered the written synopsis of arguments placed on record. Ld. Counsel appearing on behalf of the accused has vehemently argued that the prosecution has failed to bring home the charges against the accused persons since there is no eye witness to the incident and the weapon of offence allegedly recovered at the instance of the accused persons are those which are freely available in the market. He has also pointed out that none of the weapon of offence (wooden planks, danda and janjir) are not connected to the incident since none of them are bearing any blood stains as evident from the FSL report. The Ld. Addl. Public Prosecutor on the other hand has vehemently argued that the dying declaration of the deceased Munna Khan made to his wife Smt. Maina on the basis of which the FIR has been registered succinctly clear wherein he has named the accused Mahesh Chand and his employees who had beaten him mistaking him for a thief.
I have gone through the testimonies of various witnesses. Firstly there has been a delay of 30-35 hours in registration of the First Information Report. It is a settled law that the promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was coked up. (Ref.:Bhag Singh Vs. State of Punjab reported in 1971 Crl. L.J. 903). In the present case, the incident is reported to be 20-21.8.2008 pursuant to which the deceased Munna Khan expired at 3:00 pm on 22.8.2008 whereas the statement of the wife of deceased Munna Khan, was recorded at 3:55 pm on 22.8.2008 on the basis of which the First Information Report was registered at 4:15 pm on 22.8.2008. The explanation forthcoming for the delay in registration of the First Information Report is not satisfactory and therefore, in view of the St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 22 of 30 aforesaid, it is necessary for this court to ensure upon due corroboration from independent sources.
Secondly it is evident from the record that the First Information Report was registered on 22.8.2008 after the postmortem of the deceased was conducted which reveal the cause of death is combined effect of shock and respiratory distress as a result of multiple injuries. The postmortem report report has been duly proved by PW10-Dr. Rishi Prakash which is Ex.PW10/A wherein he has the cause of death as Combined Effect of Shock and Respiratory Distress as a result of multiple injuries on the body and lungs by blunt force impact. The postmortem was conducted on 22.8.2008 between 11:50 am to 2:30 pm after which the statement of the wife of the deceased was recorded on the basis of which the First Information Report was registered. The postmortem report also reveals that as per the Brief History the deceased was found lying near Kamla Karan, Gas Agency on 21.8.2008 at about 11 am to 12 am and the deceased being taken to his house where he later expired at 3:00 pm on the same day. DD No. 51B which is Ex.PW9/DA has been admitted and it shows that a PCR all had been received regarding the death of the deceased at about 4:15 pm. Thirdly the statement of the brother of the deceased Shahzad which is Ex.PW11/A reveals that the deceased was a habitual alcoholic and frequently did not return home. He had told the investigating officer that at about 11/12 am Munna Khan was found lying in the dirty water (Kichar) near Kamla Karan Gas Agency and was brought home by him after which he was given a bath. He had told SI Rajinder Singh that there were injury marks on his face but the deceased did not say anything and after sometime his condition St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 23 of 30 deteriorated and he expired. The FSL report which is Ex.PX (admitted by the parties) shows that the blood sample of the deceased was found to contain ethyl alcohol 11mg/ 100ml of blood which proves that at the time of incident the deceased was under the influence of alcohol.
Fourthly there is no eye witness to the incident and there is a material contradiction in the version given by the wife of the deceased and the circumstances as reflected from the evidence on record. The brother of the deceased Shahzad who was one of the best witness of the prosecution who incidentally has not been examined for which an adverse inference is liable to be drawn. In his statement to the investigating officer Ex.PW11/A, Shahzad had stated that the deceased was a habitual drinker who frequently did not return in the influence of liquor and even on the date of incident he had not returned and the deceased was found lying in a pool of mud and dirt at about 11/12 am opposite Kamla Karan Gas Agency and was brought to home after which he was given a bath by his family. Shahzad is the best witness who could have given the most accurate account of the place when the deceased was found near Kamla Karan Gas Agency but it appears that he has deliberately not been citied as a witness by the prosecution for which an adverse inference is taken against the prosecution.
Fifthly this statement of Shahzad made to the investigating officer which is Ex.PW11/A is in contradiction to what has been deposed by PW1 Smt. Maina the wife of the deceased in the court. According to Smt. Maina the deceased had returned home of his own at 3:00 pm smeared with mud and torn clothes on 21.8.2008 when she alongwith Shahzad had bathe her husband whereas PW2 Amzad Khan St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 24 of 30 the son of the deceased has very categorical in his cross-examination and has deposed that his uncle Shahzad was not at home at the time when the deceased was given a bath. The entire prosecution case is based upon the alleged statement made by the deceased to his wife regarding the cause of death and the case of the prosecution is that after the deceased returned home his wife hold time to bathe and changed his clothes, he told his wife that while he was passing in front of Timber Depot on Shani Bazar Road on the night of 20-21.8.2008 he was beaten by Mahesh and his employees taking him to be a thief. Shahzad in his statement Ex.PW11/A made to he investigating officer does not say anything of this kind. Rather, according to him, after the deceased was given a bath, his condition deteriorated and he later expired. PW2 Amzad Khan has, however, corroborated the testimony of PW1 that his father was given a bath and was made to lie on a cot where he told his mother that on the previous night when he was under
the influence of liquor and while he was passing in front of the Timber Depot of Mahesh, he sat on a rickshaw which was parked nearby and Mahesh and his five employees who were also consuming liquor took him inside and gave beatings to him mistaking him to be a thief. PW2 has also named Sikander as one of the person who has been named by his father to his mother. PW1 Smt. Naina on the other hand does not name Sikander at all. The Viscera Report of the deceased confirm that at the relevant time he was under the influence of alcohol. It does not appear to be probable under the given circumstances that a person who is a habitual drinker and could hardly walk at the time, so much so that he had to sit on a rickshaw to support himself, could have identified any person or could have realized what had happened. Therefore, the story put forward by the prosecution to the extent that St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 25 of 30 the deceased before his death has named the accused Mahesh and his employees particularly Sikander whose name has been entrusted first time in the testimony of PW2 before the court, does not appear credible. How can a person who is under the influence of alcohol recall and narrate the apt details and also name of the persons who had beaten him to his wife when the record reveals that at the relevant time when he was found in front of Kamla Karan Gas Agency by his brother Shahzad he was unconscious and had to be brought home in a condition where he was smeared with mud and was not even able to take bath himself. This being so it is difficult to believe the testimony of PW1 without any independent corroboration in this regard.
Sixthly it is evident from the record that no photograph of the dead body had been taken and therefore, under these circumstances, this court is unable to appreciate the exact status/ position of the deceased at the time of his death. As per the postmortem report Ex.PW10/A all the injuries so inflicted upon the deceased were produced by the blunt force impact. The injuries no. 1 to 13 which are of contusion and abrasions except for injury no.6 i.e. lacerated wound of size 2 cm x 0.2 cm present of medical surface of left ear which injury could have been caused on account of the fall of the deceased on the left side of his body. All other injuries are internal and there had been no external bleeding and perhaps it is only for this reason that no blood was found on any of the alleged weapons of offence i.e. fatti, danda and janjir allegedly got recovered by the accused persons.
Seventhly the clothes of the deceased have neither been recovered nor seized. According to PW1, after bathing the deceased she had thrown the clothes as she was not aware whether the same St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 26 of 30 were required later.
Eighthly the alleged weapon of offence i.e. wooden plank, fatti, danda and janjir are all items which are easily available in the market and there is no evident on record except that they have been recovered by the accused persons, to connect the same with the offence nor the FSL report shows that blood stains were found on the said weapons of offence.
Lastly the prosecution has tried to connect the accused persons with the alleged offence by showing that the Tabiz with the name of Allah inscribed on it in Arbi had been found at the godown of the accused Mahesh Chaudhary. This in itself would not be sufficient to arrive at a conclusion with regard to the guilt of accused persons. Even otherwise it is a settled law that mere recovery of incriminating articles at the instance of an accused person, without there being any other evidence to connect the accused with the commission of the crime, is insufficient to bring home the guilt of the accused. (See the decisions of the Hon'ble Supreme Court in Narinbhai Haribhai Prajapati Vs. Chhatar Singh & Ors. Reported in AIR 1977 SC 1753; Surjit Singh Vs. State of Punjab reported in AIR 1994 SC 110 and Deva Singh Vs. State of Rajasthan reported in 1999 Crl. L.J.
265. The recovery of Tabij after the arrest of the accused from the godown/ Timber Depot of accused Mahesh Chaudhary is not sufficient in itself to connect the accused with the alleged offence. The landlord of the depot PW4 Anil Kumar has in his cross-examination admitted that the Timber Depot had small boundary walls and easy access to public. The presence of the deceased in the area already stands established as he was returning home in a drunken condition and was found in a slush of mud on the next date and therefore, the presence of St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 27 of 30 the Tabiz in the vicinity of the area cannot point towards the guilt of the accused persons beyond reasonable doubt and in the absence of any corroboration from independent sources it is difficult to arrive at the conclusion of the guilt of the accused before this court.
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' 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 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.
Applying the settled principles of law to the facts of the present case, it is evident that the circumstances are not conclusive and the facts so established are not consistent with the hypothesis of the guilt of the accused persons. The incident had reportedly occurred in the intervening night of 20-21.8.2008. All what happened through till St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 28 of 30 the next date i.e. 11-12 am when the deceased was discovered from the pool of mud is unexplained. The chain of evidence is not so complete and raises reasonable grounds for doubting the guilt of the accused. Therefore, under these circumstances, I hold that the prosecution has not been able to bring home the charges against the accused Raghunath, Deenanath, Sikander Yadav, Naresh Chanduahry and Mahesh Chaudhary beyond reasonable doubt. Benefit of doubt is being given to the accused persons who all are hereby acquitted of the offence under Section 302/34 Indian Penal Code. Their bail bonds stand cancelled and their sureties stand discharged. Original documents of the sureties be returned after cancellation of endorsement, if any, as per rules.
File be consigned to Record Room.
Announced in the open court (Dr. Kamini Lau)
Dated: 20.7.2010 ASJ-II(NW): ROHINI
St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 29 of 30
State Vs. Raghunath Etc.
FIR No. 168/08
PS Swaroop Nagar
20.7.2010
Present: Addl. PP for the State.
All accused are on bail.
Vide my separate detailed order dictated and announced in the open court, the accused Raghunath, Deenanath, Sikander Yadav, Naresh Chanduahry and Mahesh Chaudhary are acquitted of the offence under Section 302/34 Indian Penal Code. Their bail bonds stand cancelled and their sureties stand discharged. Original documents of the sureties be returned after cancellation of endorsement, if any, as per rules.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ-II(NW): 20.7.2010 St. Vs. Raghunath Etc, FIR No.168/08, PS Swaroop Nagar Page No. 30 of 30