Delhi District Court
State vs Pawan Kumar S/O Naresh Kumar on 25 July, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 77/10
State Vs Pawan Kumar s/o Naresh Kumar
R/o B485, Transit Camp, Govind Puri,
New Delhi
Shankar @ Madari s/o Sh Ashok Mandal
R/o B213, Transit Camp, Govind Puri,
New Delhi
FIR No: 157/10
P.S. Kalkaji
U/s. 307/397/411/34 IPC
DATE OF INSTITUTION : 30.09.2010 (Initial date
of Institution 24.06.2010)
JUDGMENT RESERVED ON : 25.07.2011
DATE OF DECISION : 25.07.2011
JUDGMENT:
1. Vide DD no. 24 A dated 01.04.2010 at about 9 pm, an information was received at PS that one person was stabbed under Modi Flyover in bus route no. 429. On receiving the DD, ASI Balbir Singh alongwith Ct. Anil Kumar reached the spot where they found that injured was State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 1) admitted in trauma center, AIIMS hospital. Thereafter ASI Balbir Singh went to trauma center where injured Mohd. Sohail found unfit for statement and no eye witness was found in hospital or at the spot. On consideration of MLC and inspection of spot, an offence u/s 307 IPC found to have been committed pursuant to which an FIR was registered.
2. During investigation statement of eye witness Pyara Singh was recorded who had seen the accused jumping down from the bus alongwith knife after the incident and had taken the injured Mohd. Sohail Ahmed to hospital. At his instance the site plan of place of incident was prepared. Statements of other witnesses were also recorded.
3. On secret information, accused Pawan Kumar was arrested and on his search a knife was recovered and further in his disclosure statement, stated that he alongwith his other associate Sapan Dass and Shankar @ Madari were involved in the incident and during incident Sapan Dass stolen the mobile phone of the injured and on suspicion when injured started arguing with accused Shankar @ Madari, then Shankar @ Madari stabbed injured Mohd. Sohail. Thereafter, both accused Shankar @ Madari and Sapan Dass were arrested and from Sapan Dass one mobile phone was recovered. During investigation, accused Sapan Dass was found juvenile and he was sent to children home. Accused Shankar @ Madari refused TIP and after completion of State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 2) investigation chargesheet was filed.
4. On committal, accused Shankar @ Madari was charged u/s 307/392/34 IPC r/w 397 IPC and accused Pawan Kumar was charged u/s 307/392/34 IPC.
5. The prosecution has examined 13 prosecution witnesses for substantiating charge. PW 2 Mohd. Sohail is the injured. PW 1 Pyara Singh, PW 3 Mukesh Kumar and PW 4 Harvinder Singh are other public witnesses. Remaining witnesses are police officials and doctor. Summary details of their deposition is as follows. Deposition of Injured and other Public witnesses:
6. PW 2 Mohd. Sohail (Injured) deposed that on 01.04.2010 he had taken bus no. 429 from Modi Mill bus stand and while he was taking ticket one person had stolen mobile from his pocket and when he caught hold of that boy he hit him with knife and immediately jumped out of moving bus . And after some time bus stopped and two sardarji's had taken him to trauma center, AIIMS in their car. He could not identify the person who had stabbed him inside the bus. On being declared hostile in cross examination, the witness was suggested that the accused Shankar @ Madari is the person who stabbed him but he refuses to identify him and denied the suggestion that he was won over State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 3) by accused person. In cross examination he deposed that his statement was recorded after 2021 days and same was not read over to him. This PW was recalled for further examination on 13.07.2011 and he had identified one mobile LG, reliance phone robbed during the incident and in cross examination denied suggestion that the same was not robbed during the incident.
7. PW 1 Sh Pyara Singh deposed that in the month of April when he was going to his home on the motorcycle of his brother and when they were crossing Modi flyover, a person suddenly jumped out of bus route no. 429 and that boy was having knife and knife fell down on the road and that boy also got fell down on the road but immediately got up and fled away from the spot. But he cannot identify that boy. He further deposed that after some time bus stopped and he had taken the injured to hospital by stopping an innova car. He further deposed that injured first taken to Max hospital thereafter, to trauma center, AIIMS. He further deposed that while going from Max to trauma center, he made call to brother of injured who reached trauma center, Police after some time also reached trauma center and they recorded his statement. This witness had not identified accused Shankar @ Madari. In cross examination, he deposed that IO prepared site plan in his presence. PW 4 Harjinder Singh the brother of PW 1 Pyara Singh also deposed on the same lines but deposed that he cannot identify the boy who fell down from the bus as he fell down by facing downwards and he could State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 4) not see his face. PW 3 Mukesh kumar deposed that he had taken the injured alongwith two Sardarji's to AIIMS trauma center and the name of the injured was revealed as Sohail Ahmed.
Deposition of police officials and other witnesses:
8. PW 5 Ct. Pradeep Dagar deposed that on 02.04.2010 he joined investigation alongwith ASI Balbir Singh and Ct. Bhim Singh and on the pointing out of secret informer accused Pawan Kumar was arrested from the bus stand of 429 and one buttondar actuated knife was recovered from his pant and said accused was arrested and his personal search was also conducted. In cross examination he deposed that it is correct that there are no blood stains on blade of knife at present but there were blood stains at the time of seizure and denied the suggestion that knife is planted by the police on the accused. PW 6 Ct. Mahipal accompanied IO ASI Balbir Singh to the spot on the day of incident and as nobody found at the incident, they went to AIIMS hospital where the injured was declared unfit and no eye witness was present in the hospital. IO ASI Balbir Singh prepared tehrir pursuant to which FIR was registered.
9. PW 7 Ct. Bhim Singh deposed that on 02.04.2010 on secret information accused Pawan Kumar was apprehended from bus stand of 429 and one knife was recovered from his pant pocket. And on State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 5) 03.04.2010 on the pointation of accused Pawan Kumar two boys Shankar @ Madari and Sapan Dass were arrested and one LG mobile phone was recovered from accused Sapan Dass. In cross examination he deposed that the IO prepared site plan himself and the knife was having blood stain when it was sealed though presently knife do not have any blood stain. And accused was arrested in the evening time though he do not remember the exact time but he do not remember whether IO had asked any public person to join the investigation. He further deposed that sketch of knife was prepared in his presence however blood stains were not shown on the sketch of the knife. He further denied the suggestion that no knife was recovered from accused Pawan Kumar and all the memos were prepared at PS.
10. PW 8 Ct. Ram Kishore deposed that on 03.04.2010 at the pointing of accused Pawan kumar two boys Shankar @ Madari and Sapan Dass were arrested from fish market Govind Puri and an LG mobile was recovered from the pocket of accused Sapan Dass and both the accused were arrested. PW 9 HC Mahavir Singh working as DO and registered FIR Ex. W9/A and handed over the rukka as Ex. PW9/B. PW 12 Ct. Vijay Kumar deposited one sealed parcel at FSL, Rohini. PW13 HC Ombir Singh deposed that on 02.04.2010 ASI Balbir Singh deposited 3 sealed parcels and on 05.04.2010 further deposited one sealed parcel.
State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 6)
11. PW 10 Dr. Prashant Sharma deposed on behalf of Dr. Harsh and stated that one patient Mohd. Sohail was examined on 01.04.2010 with alleged history of assault and visible injury of stab wound at left iliacfoss 2.5 cm deep was found and opined to be dangerous, the detailed report is Ex. PW10/A. In cross examination, he stated that it is correct that MLC was not prepared in his presence and further no treatment was given to the patient in his presence.
12. PW11 ASI Balbir, IO deposed that on receiving DD no. 24A on 01.04.2010 reached the spot and in the meanwhile got a call from Trauma Center that injured who was stabbed is admitted in Trauma Center AIIMS. Thereafter, he alongwith Ct. Mahipal reached Trauma Center and found injured Mohd. Sohail unfit for statement. He collected his MLC and prepared rukka pursuant to which FIR was registered. He further deposed that he made inquiry near the spot and also from driver and conductor of bus route no. 429 but could not get any clue of the accused persons. On 02.04.2010, when he went to Nehru Camp with Ct, Bhim and Ct. Sunil, a secret informer meet him and told that the person who is involved in the incident is present at the bus stand of 429. Thereafter, from there a boy was arrested who revealed his name as Pawan Kumar and on his search one buttondar knife was recovered. He was arrested and his disclosure statement was recorded. On next day i.e. on 03.04.201, he alongwith Ct. Bhim and Ct. Ram Kishore went to fish market alongwith accused Pawan Kumar.
State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 7) On pointing out of accused Pawan Kumar two boys viz. Sapan Dass and Shankar were apprehended. From the search of Sapan Dass one LG mobile phone was recovered and disclosure statements of both accused persons were recorded. In cross examination, he denied the suggestion that all the accused persons are falsely in this case and no recovery was affected from accused Pawan Kumar and further denied suggestion that there was no blood stains on the recovered knife and it was planted one . He further denied suggestion that accused Sapan Dass was shown to witnesses in police station before sending him in judicial custody.
13. In statement u/s. 313 Cr.P.C. both the accused denied incriminating circumstance put to them and stated that they are falsely implicated in this case but not opted to lead any defence evidence.
14. Ld. counsel for the accused submitted that none of the public witness including the injured had identified any of the accused. Ld. Counsel further submits that recovery of knife from accused Pawan Kumar is all planted. PW 5 Ct. Pradeep in his examination in chief had not stated anything about the blood stains on knife recovered. Further it is improbable that any person will remain in possession of blood stained knife after one day of incident. It is also unlikely that any person will found sitting at bus stop at the time of arrest. Ld. Counsel further submits that accused Shankar @ Madari and Sapan Dass were arrested on the next day of the arrest of accused Pawan Kumar from fish State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 8) market but no independent witness was joined. Further no efforts were made by the police officials to trace theses accused persons on the day when accused Pawan Kumar was apprehended. Ld. Counsel further submits that the entire investigation by the police is farce and all the recoveries are planted on the accused. Prosecution miserably failed to prove its case.
15. Ld. Addl .P.P. on the other hand stated that though the accused persons were not identified, there is other credible evidence on the record regarding recovery of knife and mobile phone and these circumstances are enough to convict the accused persons.
16. Arguments heard. Record perused.
17. According to prosecution accused Pawan Kumar, Shankar @ Madari and Sapan Dass (facing trial before Juvenile Justice Board) indulged in pickpocketing and on 01.04.2009, they boarded bus no. 429 and accused Sapan Dass had stolen mobile of the injured and when the injured got suspicious then Pawan had given his knife to accused Shankar @ Madari who inflicted stab injuries and jumped out of the bus. Later, when bus stopped they both got down of the bus.
18. Mohd. Sohail injured is examined as PW2 who deposed that while taking ticket one person had stolen his mobile and when he caught hold of that boy then he hit him with knife and jumped out of the State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 9) moving bus. There is one thing which had come from the deposition of this witness that the person who stolen his mobile is the same person who hit him with the knife. Therefore, from his deposition only one person appears to be involved in stealing of mobile and further causing stab injuries whereas as per prosecution story, all the three accused were involved, accused Sapan Dass had stolen the mobile and accused Pawan Kumar supplied the knife to the accused Shankar who inflicted stab injuries to the injured. This version of the prosecution do not find support from the statement of the injured PW2 Mohd. Sohail which created doubt over the prosecution story that three persons were involved in that incident. This fact also found corroboration from the statement of two other witnesses PW1 Pyara Singh and PW4 Harjinder who had seen only one person jumping out of a bus.
19. Neither PW2 injured nor PW1 Pyara Singh and PW4 Harjinder who had seen the assailant jumping out from the bus had identified accused Shankar @ Madari. Further no other accused was also identified by PW2.
20. The direct evidence had not supported the prosecution case. Only circumstantial evidence remained is the recovery of the knife and mobile phone. PW4 Harjinder Singh deposed that after jumping out of the bus that boy fell down on the road and knife also fell down from his hand but after picking up the knife, he ran towards Okhla Mandi. Police on secret information arrested Pawan Kumar from bus stand of State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 10) route no. 429. PW 11 SI Balbir Singh IO deposed in examination in chief that one secret informer on 02.04.10 told him that the boy who had hit the injured in bus route no. 429 was standing at the bus stop of
429. PW 7 Ct. Bhim Singh stated that when on 2.4.10 he alongwith ASI Balbir and Ct. Pradeep reached Navjeevan Camp, Govind Puri regarding the case, a secret informer informed that accused Pawan had gone towards bus stand of bus route no. 429. PW11 ASI Balbir deposed that he got the information that the accused was sitting at bus stand of 429 whereas other two police official PW 5 & 7 deposed that the secret informer told that he was going towards bus stand of bus route no. 429. There is some variation in their version of secret information. There is nothing brought on record by the police what investigation they are conducting at Nehru Camp when the secret information was received. No DD entry regarding the nature of conducting of investigation is placed by the prosecution.
21. All these 3 witnesses PW 11 ASI Balbir Singh, PW 7 Bhim Singh and PW 5 Ct. Pradeep had deposed that they had recovered a knife from the pocket of accused Pawan Kumar. PW 7 in his examination in chief had not stated that the knife was having blood stains on it when recovered though in cross examination he stated that fact. PW 5 Ct. Pradeep in his cross examination deposed that there were blood stains on knife at the time of seizure but presently there are no blood stain on the blade of the knife. No independent witnesses at the time of recovery of the knife were associated. Neither the sketch of knife State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 11) shows any mark of blood on it. Further it is unusual that a person after hitting remained in possession of a blood stained knife after one day of incident without cleaning it. Therefore, this recovery of knife from the person of the accused Pawan Kumar in the manner alleged do not appear to be reliable.
22. According to prosecution after arrest of accused Pawan on 2.4.10, he disclosed that accused Shankar @ Madari and Sapan Dass are also involved in this incident. This factum of their involvement was disclosed by the accused on 2.4.2010 but no effort was made by police to trace both accused Shankar @ Madari and Sapan on the same day but according to them on 3.4.2010 i.e, on the next day they went in the search of both other accused at the bus stop and lateron in the fish market where they found accused Shankar @ Madari and Sapan Dass and from Sapan Dass one LG mobile phone was recovered.
23. PW 7 Bhim Singh deposed that on 3.4.10 accused Pawan Kumar was taken out from lock up and he brought them at fish market and pointed towards the accused Shankar @ Madari and Sapan Dass. Thereafter, both were arrested. PW 8 Ram Kishore deposed that accused Pawan kumar first took them to DDA flat then to bus stand 429 and thereafter to fish market and PW11 ASI Balbir Singh deposed that on 03.04.10 accused were taken to fish market and on his pointing out two other accused were arrested. PW 7 and PW 11 had not stated that the accused were first taken to DDA flat then to bus stand 429. It appears State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 12) somewhat unnatural that accused Pawan kumar in custody shall directly take them to fish market as it is certain that accused were present and could be arrested. There is nothing in the prosecution story that accused Pawan Kumar do not know the addresses of both other accused therefore they could not search them at their addresses at the previous night. No independent witness was joined at the time of arrest of accused Shankar @ Madari and Sapan Dass. Nor any site plan of spot from where accused persons were arrested was prepared. Therefore, the circumstance of manner of arrest by the prosecution do not appear credible and reliable particularly when there was no independent witness joined even at fish market.
24. Ld. Addl. PP submitted that there is a recovery of LG mobile phone from accused Sapan Dass which is duly identified by PW 2 Mohd. Sohail injured. Once the manner of arrest of accused is not believed then the recovery pursuant to the arrest at the spot itself cannot be relied upon.
25. On overall appreciation, the deposition of police witnesses on the factum of arrest and recovery of knife and mobile phone do not appear to be creditworthy and trustworthy, therefore, cannot be relied upon.
26. To sum up the case as none of the prosecution witness had identified the accused persons further as per the deposition of Mohd. Sohail injured only one person was involved in stealing of mobile phone and State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 13) consequent stabbing therefore, this version of the prosecution that 3 persons were involved in the incident cannot be relied upon. Further the circumstance of arrest and consequent recoveries of knife and mobile phone do not appears to be trustworthy and reliable.
27. Prosecution unable to prove its case against accused Pawan Kumar and Shankar @ Madari beyond reasonable doubt. Therefore, accused Shankar @ Madari and Pawan Kumar are given benefit of doubt and acquitted of charges u/s 392/307/397/34 IPC. Be released forthwith if not required in any other case and further directed to furnish personal bond in sum of Rs. 20,000/ and one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 25th July, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Pawan kumar, SC No.77/10 (Contd. Pg No. - 14)