Delhi District Court
State vs . 1. Pradeep Kumar S/O Om Prakash on 7 October, 2009
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.27/09
FIR No.322/99
U/s 302/201/34 IPC
PS -SANGAM VIHAR
State Vs. 1. Pradeep Kumar s/o Om Prakash
2.Vijay Pal @Chhotu s/o Prahlad Singh
3. Suresh @ Gujjar s/o Raghubir Singh
Challan filed on : 04.10.99
Received by Fast Track Court on:13.04.09
Reserved for Order on : 17.09.09
Judgement delivered on : 07.10.09
JUDGMENT
The brief conspectus of facts are that on 03.07.99 on receipt of DD no. 14 Ex.PW13/1 SI Krishan Kumar reached at the spot i.e behind Kayamaya Mandir where Ct.Ram Niwas and Puran Singh met him who have stated that injured has been removed to AIIMS Hospital in PCR Van. Thereafter, leaving the constables at the spot, he reached AIIMS Hospital and found admitted the injured there who was unfit for statement. No eyewitness was found at the hospital. SI Krishan Kumar came back at the spot where he saw blood stained stone, scattered State Vs. Pradeep Etc. Page No.1 FIR NO.322/99 hawai chappal and blood was also lying on the ground. He recorded the statement of Ct.Ram Niwas in which he has stated that he is posted as Constable in PP H-Block, PS Sangam Vihar. He was on patrolling duty with Ct.Puran Singh from 8 a.m to 8 p.m. During patrolling, at about 6.45 p.m when they reached at Shooting Range, near DDA Nursery they saw scuffle between four boys behind Kayamaya Mandir. They saw that three boys were pelting stones. On suspicion, they went towards them. On seeing them two boys ran away towards forest and one boy ran and started his scooter no. DL 3SC 5163. They chased the scooterist but he went towards MB Road, Batra Hospital and went out of their sight due to traffic. They came back to the spot and saw that one unknown person aged about 30/35 years, having only underwear on his body was lying in pool of blood. There were injuries on his head & forehead and blood was oozing out from the wounds. He was unable to speak. They called the PCR van and injured was removed to AIIMS Hospital. All the three boys have beaten the injured who have succeeded to run away from the spot. He can identify them if produced before him. On this statement Investigating Officer made his endorsement Ex.PW17/2 on the basis of which the present case was registered vide FIR no.322/99. The State Vs. Pradeep Etc. Page No.2 FIR NO.322/99 investigation was done and accused persons were arrested. After completing the investigation the accused persons were challaned to the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 10.02.2000 and thereafter by Fast Track Court on 13.04.09.
3. The charge against the accused persons Pradeep Kumar and Vijay Pal @ Chhotu was framed u/s 302/201/34 IPC on 28.04.00 and accused Suresh @Sujjar was charged on 28.02.2001 u/s 302/201/34 IPC by the Sessions court to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 19 witnesses. PW1 Dr.Chaderkant, PW2 Ct.Ram Nivas, PW3 Umar Pal, PW4 HC Mustafa Khan, PW5 Yashpal Singh, PW6 Ct.Shri Pal Nagar, PW7 HC Om Prakash, PW8 Lady Ct.Kusum Lata, PW9 HC Suresh Kumar, PW10 Sh Rajnish Kumar Gupta, Ld.MM, PW11 Ct.Ganga Ram, PW12 Ct.Puran Singh, PW13 Ct.Anil Kr., PW14 Shankar Prashad, PW15 Umed Singh, Pw16 HC TC Domman, State Vs. Pradeep Etc. Page No.3 FIR NO.322/99 PW17 SI Krishan Kumar, PW18 SI Raj Kumar, PW19 Om Prakash.
5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. The accused persons have also examined one witness DW1 Shashi Kumar in their favour. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused persons as well as Ld.APP for the State and perused the testimonies of PWS, DW and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and ld.counsel on behalf of the accused I have perused the testimonies of witnesses.
8. PW1 Dr.Chanderkant is the witness from Forensic Medicines, Safdarjung Hospital and he has deposed that on 05.07.99 he conducted the post mortem examination on the body of Sh Rattan Singh aged about 30 years and he prepared PM Report no. 1376/99 and he described all the anti-mortem State Vs. Pradeep Etc. Page No.4 FIR NO.322/99 injuries which were 12 in number and findings of internal examination of the deceased. He opined the cause of death due to shock, head injury which were anti-mortem in nature caused by application of blunt force from blunt object from stone and all injuries were collectively sufficient to cause death in ordinary course of nature. He sealed sample of blood and sample of blood gauz. He received 10 sheets of inquest papers. He proved the post mortem report Ex.PW1/A. In cross examination he has stated that on the basis of inquest papers he came to know that deceased was examined in AIIMS but he does not remember when he was examined in AIIMS. The inquest papers were given to the doctor who has to conduct the post mortem thus it is not possible to tell when the inquest papers were prepared including death summary. In summary report death time is also written. Time since death opined by him in the post mortem report on the basis of his observation on external examination of the deceased which includes well developed rigor mortis in both upper and lower limb, well developed post mortem staining and non development of putrefacalon changes. Rigor mortis is well develops in the body after 24 hours and disappear within 36 hours. The changes of puprefiction and mummification shows a specific period in the State Vs. Pradeep Etc. Page No.5 FIR NO.322/99 body. He has not mentioned the duration of injuries but the same were anti-mortem in nature and they were not old. Old means more than 48 hours in duration. The lacerated wound are of irregular shape and they have not been given any particular shape in the post mortem report. His opinion regarding the cause of death is based on post mortem findings and findings noted during internal examination. He does not know who has prepared the death summary of the deceased in the hospital and who has treated and given his opinion regarding one deceased as a known of (words not clear) but his report is on the basis of injuries and not by any type of disease. He cannot offer any comment specifically why the hisotry of road traffic accident (RTA) was given in the death summary of the deceased. He denied the suggestion that he has given his opinion regarding the cause of death as per the inquest paper. He further denied the suggestion that he has given the opinion regarding the kind of weapon i.e. blunt and thereafter stone on the basis of inquest sheet in which the IO had written the kind of weapon is stone used for causing the injuries. He further denied the suggestion that the deceased had received the injuries in a road accident and that his report is not correct.
State Vs. Pradeep Etc. Page No.6 FIR NO.322/99
9. PW2 Ct.Ram Niwas is the complainant and eye witness in this case. He has deposed in his testimony that On 3.7.99 he alongwith Ct.Puran Singh were on patrolling on motorcycle no.DL 1SM 0546 SM 38 from 8 a.m to 8 p.m. At about 6.45 p.m they reached shooting range near Nursery and saw that behind Kayamaya Mandir, four boys were scuffling with each other in the Khandhar (deserted place). He also say that three boys were hitting fourth one with stones. When they reached near them two of the boys escaped towards the forest and one of the boy started the scooter number DL3 SC 5163 and ran towards MB Road, Batra Hospital. They chased the scooter but the scooter escaped taking advantage of the crowd and disappeared from the site. Thereafter they went to the spot and found one unknown person lying only in underwear and bleeding. He was not able to speak. They informed the PCR and the injured was sent to AIIMS Hospital. The injured was having injuries in his head and forehead caused by those four boys. He proved his statement Ex.PW2/A. He further deposed that in his presence the spot was photographed and site plan was prepared. The blood stained earth and two sleepers were seized, one sleeper was having State Vs. Pradeep Etc. Page No.7 FIR NO.322/99 blood spots. He proved the memo of blood stained stone Ex.PW2/B and he identified the stone Ex.P1. He further stated that sleeper and blood controls were seized vide memo Ex.PW2/C. He identified the sleeper Ex.P2. Blood exhibit was also seized vide memo Ex.PW2/D, blood soaked earth was seized vide memo Ex.PW2/E&F. Question was put to him as to whether he can identify those boys who he saw behind Kaya Maya Mandir and he replied Yes. They are present in the court and their names are Vijay Pal and correctly identified. He identified those boys at the spot first. Accused Pradeep Pointed out the place of incident in his present. He was declared hostile by the Ld.APP for the State and cross examined wherein he has stated that it is correct that the disclosure of accused Vijaypal was recorded in his presence vide memo Ex.PW2/G. At the pointing out of accused Vijay Pal scooter no.DL3SC 5163 was also recovered from behind the market of sector-5 Pushp Vihar vide memo Ex.PW2/H. From scooter a stone and cloths of the deceased were also recovered vide memo Ex.PW2/H. He identified the trouser Ex.P3 which was taken into possession vide memo Ex.PW2/H. He identified the shirt ExP4 which was seized vide memo Ex.PW2/H. He further stated that the Ex.P1 which he identified was recovered vide memo Ex.PW2/H from the scooter State Vs. Pradeep Etc. Page No.8 FIR NO.322/99 seized at the instance of accused Vijay Pal. He identified the scooter no. DLP SC 5163 as Ex.P5. He further deposed that three stones were recovered in his presence. The bigger one was recovered from the spot and smaller one was recovered from the scooter at the instance of accused Vijay Pal. The bigger stone was recovered from the spot which he identified as Ex.P1. Ex.P6 is the stone which is smaller in size and recovered vide memo Ex.PW2/H. In cross examination he has stated that when the accused were grappling with the deceased he did not give any wireless message to control room. First time message on wireless was given by him when the accused persons were escaping on two wheeler scooter alongwith the scooter number. They chased the accused persons for one km. He flashed the scooter number involved in this case through control room. The message given to the control room to the effect that a PCR van be sent for removing the injured to hospital it was not communicated that the scooter number so and so be also apprehended. PCR came within 5/7 minutes but IO came after about an hour. They remained at the spot till IO came there. The PS is about one Km from the spot and it could take 15 minutes to reach there on motorcycle. There was no light at the spot. Place of occurrence is about half a km. from State Vs. Pradeep Etc. Page No.9 FIR NO.322/99 the metal road from where they had first seen the accused grappling with the deceased. Between the road and place of occurrence there are bushes. He has seen the photograph Ex.PW2/DA in which the place of occurrence is adjacent to the abandoned old monument. They were on the shooting range road when they had seen the occurrence. The distance between the place on the shooting range road from where they had seen the occurrence and Kaya Maya Mandir is about ¾ km. No message was flashed on the set of the SHO or the control room at his instance to the effect that so and so scooter number is to be apprehended on which the accused have escaped. He told the IO and SHO that he did not receive the acknowledgment from the control room. He told the description of four boys seen by me in his statement Ex.PW2/A. When they reached at the spot on their motorcycle then one of the four persons started the scooter and ran away. He has stated to the IO that he had seen three persons beating one person. But it is not recorded in his statement Ex.PW2/A. He has stated in his statement that injured who was lying at the spot was given injuries on his forehead and head by the three boys. But it has also come under improvement. When they had first seen the four boys grappling with each other, they were State Vs. Pradeep Etc. Page No.10 FIR NO.322/99 wearing the clothes but subsequently the injured was found putting on only the underwear. He had not seen who had put off the clothes of injured. Ct.Puran Singh was driving the motorcycle and he was carrying the wireless. At the time of grappling none else was in the forest. He admitted that in his first message he had informed that one person is lying unconscious near Tuglakabad Fort. He did not record any arrival entry in the PS. On 7th July at the time of arrest of accused Pradeep he was not present though he was present in the PS on duty. Ct.Puran Singh was also on duty. He and Puran Singh accompanied the IO to the spot which was pointed out by accused Pradeep. Accused Pradeep was brought to PS at about 3 - 3.30 p.m. He had signed his statement Ex.PW2/A after reading the same. He admitted that in his statement no description of accused or their clothes is mentioned. He denied the suggestion that when he and Ct.Puran reached at the spot they only saw the injured lying and accordingly flashed the message. He denied the suggestion that he had made a false statement that he saw three boys grappling with the injured at the spot. He further denied that it was on 4.7.99 that IO wrote his statement Ex.PW2/A which he signed. He denied the suggestion that accused Pradeep Kumar was not present at the spot on State Vs. Pradeep Etc. Page No.11 FIR NO.322/99 3.7.99. He further denied the suggestion that accused Pradeep Kumar was apprehended from Safdarjung Hospital on 4.7.99 and kept confined in the PS and then arrested falsely on 7.7.99. The accused Vijaypal was seen by him for the first time on 5.8.99 when he surrendered and thereafter he saw him in the judicial custody. The disclosure of accused Vijay Pal was recorded in his presence. The scooter in question was recovered from the garrage. He does not know whether IO made enquiry about the owner of the garrage. He does not remember the time of recovery of the scooter and no public person was present at that time. The lock of the garrage was opened when the scooter was seen. It is took them 2/3 minutes in reaching near the spot from shooting range road after seeing the four boys grappling with each other.
10. This witness PW2 was again examined on 21.03.07 after filing of charge sheet against accused Suresh and he identified accused Suresh in the court He further deposed that scooter in this case bearing no. DL3SC 5163 was recovered on the pointing out of accused Vijaypal. Accused Suresh had run away on this scooter which was recovered from the possession of Vijay. He identified accused Suresh @ Gujjar in PS Delhi Cantt. State Vs. Pradeep Etc. Page No.12 FIR NO.322/99 Accused Suresh alongwith his co accused murdered that person who was found in jungle behind Kaya Maya Mandir in injured condition. He has lodged FIR in this case. He proved rough site plan Ex.PW12/DA. He further deposed about lifting of earth control and seizure of the same. Scene of crime was also photographed by the police officials. Superdar of scooter appeared in the court and produced the RC and reported that two wheeler had already been condemned and was not in working condition and therefore, it was lying abandon in his property but not it has been observed that somebody has stolen the said scooter. Since the scooter was not in working condition and was condemned, no FIR has been lodged by him for theft of the scooter. Copy of RC is Ex.PW2/G. Ld. defence counsel has not disputed the existence and seizure of two wheeler. In cross examination conducted on behalf of accused Suresh he has deposed that the departure entry was made at PP Sangam Vihar H Block and number of motorcycle was also mentioned in the said entry. The place of incident was at a distance of two and half km from the police post. He further stated that the place of incident was at a distance of two and half km. from the police station. It takes about half an hour to reach the spot of incident from the PS because the said area is State Vs. Pradeep Etc. Page No.13 FIR NO.322/99 a crowded place. He had seen the incident from a distance about 250-300 meters. It is correct that there were trees on the road in between the spot of incident and the place from where he had seen the boys quarreling. It is correct that there is no matelled road/pakka road to reach the spot from the place where he was standing, however, the place of incident was approachable by motorcycle. He denied the suggestion that the place of incident was not visible from point M shown in the site plan Ex.PW12/DA due to trees and plants. IO has not enquired from any person of the nursery regarding the quarrel. He has no knowledge that several persons are always present in the DDA Nursery. He had started for the place of incident immediately on witnessing the quarrel. He has further stated that the scooter no.DL 3SC 5163 was recovered from the garage in the market of Pushp Vihar, Sec.-5. He does not know who was the owner of the garage. He admitted that the garage is situated at thickly populated area. The scooter was not recovered in his presence. AGAIN SAID he does not remember whether he had witnessed the recovery of scooter or not.
11. PW3 Umar Pal has deposed that he identified the State Vs. Pradeep Etc. Page No.14 FIR NO.322/99 dead body of his brother Rattan Singh in the hospital and he received the dead body vide memo Ex.PW3/A. In cross examination he has stated that on receipt of dead body he also visited the police post. Accused Pradeep was there. The scooter of accused Pradeep was parked there. He was declared hostile by the Ld.APP for the State and cross examined wherein he has stated that accused Pradeep is from his native village and therefore he know him since childhood. He does not know about the registration number of the scooter of accused Pradeep. He was told by some other person that the said scooter belonged to accused Pradeep. He denied the suggestion that he stated about scooter of accused Pradeep in his deposition during the cross examination on behalf of accused in order to save accused Pradeep. He denied the suggestion that he stated about the scooter of accused as he has been won over by the accused. He further denied the suggestion that he has received directions from the accused to stated about the presence of accused and his scooter on the day when he received the dead body of his brother.
12. PW4 HC Mustafa Khan has deposed that on 03.07.99 State Vs. Pradeep Etc. Page No.15 FIR NO.322/99 Ct.Ganga Ram came alongwith rukka sent by SI Kishan Kumar on the basis of which he recorded FIR no.322/99. He proved the copy of the same as Ex.PW4/A. In cross examination he has stated that he has not brought the DD entry with him today because the same is lying at the Police Post. The first DD entry is necessary in all FIR. The DD no.19A dated 3.7.99 was recorded by him at 11.15 p.m. In the original FIR in column no.3 section 304 IPC was incorporated by him at the same time with 308/34 IPC and the photocopy of the original is now Ex.PW4/DA. FIR was registered under the same provision of IPC which were recommended in the rukka by SI Krishan Kumar. Section 304 IPC was added by him subsequently after the registration of the FIR. He might have incorporated the same on the directions of the senior officials or SHO but he does not remember anything. There was no written direction to this effect from senior officials. He did not give the copy of DD no.19A to any person. He also did not send the copy of FIR to senior officials or concerned MM. DD no.8A is not in his handwriting. DD no.14 is also not in his handwriting. He denied the suggestion that the entries in the DD register and FIR were stopped by him on the instructions of SHO on that day. He further denied that the FIR recorded by him is ante time, on the next day. The entries at point B in Ex.PW4/DA State Vs. Pradeep Etc. Page No.16 FIR NO.322/99 were made in red ink subsequently.
13. PW5 Yashpal Singh has also identified the dead body of his nephew Rattan Singh and he proved his statement Ex.PW5/A. In cross examination he has stated that He went to PP Sangam vihar on the day prior to which the dead body was identified. Accused Pradeep was sitting in the PS. The scooter of accused was also in the Police Post. He was also cross examined by the Ld.APP for the State after declaring him hostile and he has stated that he does not know the number of the scooter. He had seen accused Pradeep on 4.6.99 in the PP. He does not know how his nephew had died. He does not know whether accused Pradeep is facing trial in murder of Rattan Singh. He did not meet accused Pradeep at PP nor he had talk with him. Accused Pradeep is from his native village. He denied the suggestion put by the Ld.APP that he did not visit PS or met & saw accused Pradeep in the PS prior to the identification of the dead body.
14. PW6 Ct.Shri Pal has deposed that on 3.7.99 he alongwith SI Raj Kumar reached in gali no.7 DDA Flats, Madangir. The accused Pradeep was interrogated who made disclosure which was recorded vide memo Ex.PW6/A. State Vs. Pradeep Etc. Page No.17 FIR NO.322/99 Thereafter they took him to Police Post. He was declared hostile by the Ld.APP for the State and cross examined wherein he has stated that it is correct that accused was arrested in his presence and his arrest memo is Ex.PW6/B and personal search was conducted vide memo Ex.PW6/B. He further stated that it is correct that accused also pointed out his residential house and he himself got recovered one grey colour trouser having blood stains and the check shirt and a pointing out and recovery memo was prepared to this effect which is Ex.PW6/D. He identified the trouser and shirt Ex.P7 & P8. He further admitted that accused Pradeep was arrested on 7.7.99 and not on 3.7.99. He further admitted that accused Vijay Pal was arrested on 10.8.99 and he also made disclosure statement Ex.PW2/G . It is correct that at the instance of Vijay Pal scooter no.DL3SC 5163 was recovered. He further admitted that a stone, a shirt and a trouser with a belt were also recovered from the dikki of the scooter at the instance of accused Vijay Pal. He proved memo already Ex.PW2/H. Ex.P5 is the same scooter while Ex.P3, P4 and P6 are the same Pant, shirt and stone which were recovered vide memo Ex.PW2/H. In cross examination he has stated that they went to arrest accused Pradeep on 7.7.99 at about 7/8 a.m and came back in the PS after ¾ hours. The State Vs. Pradeep Etc. Page No.18 FIR NO.322/99 accused Pradeep was also taken to the spot where the pointing out memo was prepared which is now Ex.PW6/DA. The accused was arrested from his residence i.e. DDA Flats Madangir. The arrest of accused Pradeep was shown in the police post and only for this reason the signature of any person could not be obtained on Ex.PW6/B and C. He has signed all the documents in the Police Post. Ex.P6 & P7 were got recovered by the accused after his arrest in the Police Post and then he was taken to his residence. The recovery memo of pant and shirt were also got signed by the IO from the person who was found in the house of accused. Ex.PW6/D was also prepared by the IO in the Police Post. Thereafter accused was taken to Palam, Mehrauli, Manglapuri and Gurgaon in search of other co-accused and then they came back at about 10/11 p.m. Ct.Ram Nivas and Puran Singh had also accompanied them. He denied the suggestion that he did not accompany the IO to any place and IO has obtained his signatures on all the documents in the PS. He denied the suggestion that accused Pradeep was arrested on 4.7.99 from Safdarjung Hospital and since then he was confined in the Police Post. He further stated that scooter no.DL 3SC 5163 was recovered from the house of accused Pradeep on 3.7.99 which was parked State Vs. Pradeep Etc. Page No.19 FIR NO.322/99 outside his house. He denied the suggestion that accused Vijaypal & Pradeep did not make any disclosure and not recovered anything in his presence. All the papers which he had signed were signed by him in the Police Post. He further stated that Ex.PW2/G and Ex.PW2/H were signed by him in the Police post on 10.8.99.
15. PW7 HC Om Prakash is the draftsman and he has deposed that he inspected the place of occurrence and prepared the scaled site plan Ex.PW7/1. He was not cross examined by the Ld.defence counsels.
16. PW8 Lady Ct.Kusum Lata is the DD writer and she proved DD no.7 as Ex.PW8/1. She was also not cross examined by the Ld. defence counsels.
17. PW9 HC Suresh Kumar has deposed that on 25.7.99 he joined the investigation with SI Rajkumar and the had gone to airport. A taxi bearing registration no. DL 1P 1080 which was being driven by one Umed was taken into possession vide memo Ex.PW9/1. He was not cross examined by the Ld. defence counsels.
State Vs. Pradeep Etc. Page No.20 FIR NO.322/99
18. PW10 Sh Rajnish Kumar Gupta, Ld. MM has conducted the TIP and deposed that accused Pradeep refused to join the TIP. He proved the proceedings Ex.PW10/3. He further deposed that accused Vijay Pal also refused to join the TIP and he proved the proceedings Ex.PW10/5. He was not cross examined by the Ld. defence counsels.
19. PW11 Ct.Ganga Ram is the witness of who reached at the spot with SI Krishan Kumar where Ct.Puran Singh and Ct.Ram Nivas met them who informed that the injured has been removed to hospital. then they reached AIIMS Hospital and SI moved an application for taking opinion of the doctor who informed that the injured is unfit for statement. Then they came back to the spot and recorded the statement of Ct.Ram Nivas on which SI made his endorsement and PW11 got the case registered. In cross examination he has stated that they reached at the spot at 7.30 p.m and there was a little light. The place of incident was around 150 feet from the side of MB Road. Kaya Maya Mandir is situated on the road itself and this place was behind the mandir. One can reach the temple by vehicle. They have to walk for a distance of 150 yards after State Vs. Pradeep Etc. Page No.21 FIR NO.322/99 parking the two wheeler scooter which IO was having. The entire area at the place of incident was having big bushes, trees as it is a jungle. From the road the small hills are visible and one can also see during day time everything is visible including any person standing in the jungle. The entire writing work was done in the light which was coming from the temple. The slippers were found at a distance of 50 feet from the back side of temple. They reached PP after completion of investigation i.e. at 1.00 a.m (night). IO had received the information regarding abandoned scooter in the area. He is not aware whether IO proceeded to inquire about that information or what he did as his duty was off. When they reached first time at the spot both the constables informed them that 3-4 boys after causing injuries to the injured have run away from the spot. He further denied the suggestion put by the Ld. defence counsel regarding availability of light, visibility of place of incident from MB Road or shooting range etc. He admitted that he has not seen anybody lying in the spot or any scooter parked there or any taxi. The spot from where the blood stain stone was recovered is visible in the day time. IO recorded the statements and prepared rukka. IO also prepared site plan in his presence. No independent witness was present at that time. Some persons State Vs. Pradeep Etc. Page No.22 FIR NO.322/99 were present inside the temple but they were not made witness by the IO.
20. PW12 Ct.Puran Singh is the eye witness in this case and he has deposed that on 3.7.99 he alongwith Ct.Ram Nivas were on patrolling duty on motorcycle from 8 a.m to 8 p.m. At about 6.45 p.m they reached near Nursery of DDA, Shooting Range. They noticed that behind Kaya Maya Mandir four boys were grappling. On suspicion he and Ct.Ram Nivas went towards that side. On seeing them two boys had fled away towards Jungle and one boy started two wheeler and fled away towards Batra Hospital. He was having some clothes in his possession. The scooter was Chetak make and its number was DL 3SC 5163. They tried to chase the two wheeler but could not succeed. They came back at the place of occurrence. They found a young boy in a pool of blood wearing only underwear having injuries on his face and head. They flashed message to the control room, PCR officials reached there and injured was sent to hospital. Thereafter SI Krishan Kr and Ct.Ganga Ram reached there and they narrated the facts to them. He further stated that SI prepared the rough site plan. The place of occurrence was got photographed. One blood stained stone State Vs. Pradeep Etc. Page No.23 FIR NO.322/99 was seized and blood was also lifted with the help of cotton. Blood stained earth and earth control were also lifted. Chappals (one blood stained) were also taken into possession and he proved memos already Ex.2/A, Ex.PW2/B,C,D,E,F. He identified the accused persons. He further deposed that on 5.7.99 he again joined the investigation and stated that the dead body was handed over to the brother of deceased vide receipt Ex.PW3/A and pullanda and sample seal handed over by doctor to IO which was taken into possession vide memo Ex.PW12/1. He further deposed that on 2.11.2000 he again joined the investigation and went with SI Krishan Kr to PS Delhi Cantt. There accused Sruesh @ Gujar was found in the PS as he was on police remand in case of PS Delhi Cantt. On seeing him he stated to SI Krishan Kumar that he was that very boy who was involved in the occurrence dt 3.7.99 and fled away. He identified the pair chappal Ex.P2, stone Ex.P1. He has pointed out towards accused Suresh that he had fled away on two wheeler scooter and remaining two accused fled away towards jungle. In cross examination he has stated that Ct.Ram Nivas was having wireless set. He does not know whether Ct.Ram Niwas had flashed any message on the wireless that a culprit is feeling away on such and such two wheeler scooter. State Vs. Pradeep Etc. Page No.24 FIR NO.322/99 He is aware of only that message which had been flashed by him while they had come back to the place of occurrence, after they had made unsuccessful attempt to apprehend accused Suresh. He is unable to recollect as to how much time had been consumed in chasing accused Suresh and then coming back to the place of occurrence. The place from where they saw the grappling between persons was around 300 to 400 yards. He has shown point X in the site plan Ex.PW12/DA and stated that he and Ct.Ram Nivas were at point X and the boys were at point Y. It is correct that there were railing on the road described as shooting range in the site plan Ex.PW12/DA VOL. at some places there were no railings. There was one tree between the shotting range road and the khandhar. There were no bushes or number of trees. Ex.PW2/DA is the place of incident, however, it is not possible for him to pin point as to where he and Ct.Ram Nivas were as the photograph does not cover entire area. There was no pagdandi towards the jungle nor there was any road towards the jungle. He and Ct.Ram Nivas had seen the accused fleeing away when they were about 50 to 100 yards away from them while they were rushing towards the khandhar i.e. the place where they were grapling. The scooterist had run towards their State Vs. Pradeep Etc. Page No.25 FIR NO.322/99 left side. He and Ct.Ram Nivas had not started chasing the accused Suresh immediately but they went to the place of grapling. At that place they stayed for a few second and then started chasing and accused was going towards MB Road. He denied the suggestion that the distances between shooting range and khandhar is about one km. They chased him upto R.D.Marg, T Point. He denied the suggestion that he and Ct.Ram Nivas reached the place at 7.15 p.m. He denied the suggestion that they had not seen any person fleeing away on foot or on any vehicle as alleged. When they had come back to the place of occurrence at 7.15 p.m,, the message flashed by Ct.Ram Nivas was that three persons had assaulted one person with stones and are fleeing away. He does not remember as to which of the accused had been seen first after 3rd July 1999 and at which place. He does not remember as to whether he had seen accused Pradeep after 3rd July 1999 and before recording of his statement in the court. He does not remember whether he was on leave or on duty in the PS on 7th July 1999. He cannot admit or deny whether accused Pradeep had taken the police party to the place of occurrence or some other places or not. He denied the suggestion that Insp. Rajkumar also accompanied them while leaving the police State Vs. Pradeep Etc. Page No.26 FIR NO.322/99 post. Ct. Ram Nivas was having his service pistol with him. He was not having any weapon. The visibility was clear upto one kilometer. R.D. Chowk T Point was the point from where road lead to Govindpuri side from MB road. It is correct that distance between DDA Nursery and MB Road is about 200 yards. Airforce station falls first if one goes from MB Road to Shooting range. Kayamaya Mandir is on MB Road. The crow fly distance between kaya maya mandir and khandhar is about 100 yards. He does not remember whether the site plan was prepared at the pointing out of Ct.Ramnivas or his instance. It is correct that the vehicle whether it is two wheeler scooter or motor cycle cannot move at a speed more that 15/20 km/hr between point X & Y. After seeing the grappling he took the route shown as dots (....) and accused Suresh had taken the route shown with 'Arrow' In Ex.PW12/DA. It is correct that before chasing, they had seen the injured lying in an injured condition and was in a pool of blood. The injured was placed in the vehicle by them. His arrival entry is of 4th July 1999 at about 2 a.m. (night). Ct.Ganga Ram reached at the spot at about 1 a.m after getting the case registered. He did not joined any TIP nor he was asked to identify those boys in the PS or before the Ld.MM. He admitted that when one proceeds from the side of State Vs. Pradeep Etc. Page No.27 FIR NO.322/99 Badarpur towards Mehrauli on Badarpur Mehrauli Road, Kaya Maya Mandir falls on the left side.
21. PW13 Ct.Anil Kumar is the DD writer and he proved DD no.14 Ex.PW13/1. He was not cross examined by the Ld. defence counsels.
22. PW14 Shankar Prashad is the record clerk from AIIMS and he has proved the MLC no.55380/99 of unknown as Ex.PW14/1. This witness has been examined on behalf of Dr.Amit Gupta by the prosecution. He was also not cross examined by the Ld. defence counsels.
23. PW15 Umed Singh has deposed that he does not know accused Vijay Pal. Prahlad Singh had never given him taxi no. DL 1T 1080 for plying it on hire. This vehicle used to be plied by him in 1999 and he plied it only for 4/5 days and one Rajkumar handed over the same to him. The vehicle was taken into possession by police from Palam Airport vide memo Ex.PW9/1 vol. his signatures were obtained in the PS Sangam Vihar. He was declared hostile by the prosecution and cross examined by the Ld.APP for the State wherein he has stated that Raj Kumar was the registered owner of DL 1T 1080. He State Vs. Pradeep Etc. Page No.28 FIR NO.322/99 denied the suggestion that he had been given the above vehicle by Prahlad Singh father of accused Vijay. He denied the suggestion that he has been won over by accused Vijay He did not state before the police that Prahlad Singh father of Vijay Pal had given him taxi and he was confronted with his statement in this respect. He did not state before the police that this taxi was of Vijay Pal and earlier the taxi used to be plied by Vijay Pal. Police had not recorded his statement. Vol. only signatures were obtained. He was not cross examined by the Ld. defence counsels.
24. PW16 HC T.C.Domman has deposed that on 3.7.99 his duty was on PCR stationed near Kaya Maya Mandir. At about 7 or 7.15 a call was received that a person is lying injured in khandhars behind the temple. He reached there. Ct.Ram Nivas and Ct.Puran Singh were also present there. The injured was wearing underwear. He does not remember whether he was conscious or unconscious. However, he was not dead. He was removed to hospital. In cross examination he has stated that the call of sign of their van was Eagle 28. It is correct that a register is maintained in the PCR van. That register is used for mentioning the call received and calls sent by them. They had received the call from PCR and entered in the register. They State Vs. Pradeep Etc. Page No.29 FIR NO.322/99 told the doctor that they have brought the injured as they have received the call. The information was received at about 7 or 715 p.m. The PCR van had reached the place where the injured was lying though it was not a road from the main road to the point where the injured was lying. He cannot tell the distance between the main road the the place where the injured was lying. He did not enquire from the constable as to how it has happened. He does not remember as to what he had told to the doctor on duty regarding the injured. He is unable to recollect as to whether he had told the doctor on duty that the injured was found 'lawarish'(deserted).
25. PW17 SI Krishan Kumar is the first IO of this case and he has deposed that on 3.7.99 on receipt of DD no.14 Ex.PW13/1 he alongwith Ct.Ganga Ram went to the Khandhars behind Kaya Maya Mandir where Ct.Ramnivas and Puran Singh met them and told that unknown injured has been removed to AIIMS Hospital. Thereafter he reached in AIIMS Hospital where he moved an application Ex.PW17/1 to find out as to whether the injured was fit for statement or not but doctor declared him unfit for statement. He came back to the place of occurrence and recorded statement Ex.PW2/A of Ct.Ram Nivas, made his State Vs. Pradeep Etc. Page No.30 FIR NO.322/99 endorsement Ex.PW17/2 and got the case registered. He got the place photographs. Infact he had himself taken the photographs which are Ex.PW17/2 to Ex.Pw17/7 and negatives are colly Ex.Pw17/8. He prepared the rough site plan Ex.PW12/DA on the pointing out of Ct.Ram Nivas. He sealed blood stained stone, one pair of hawai chappal, blood stained earth and blood sample and sealed with the seal of KK and taken the same into possession vide memo Ex.PW2/B to Ex.Pw2/F. Ct.Ganga Ram handed over him copy of FIR. He found out the registered owner of the scooter which was already involved in the commission of crime. He collected the information of the ownership of this scooter on phone. He informed the owner of the scooter. He took him to AIIMS. He identified the injured as Rattan Singh. The name of the owner of scooter was Om Prakash. He deposited the sealed parcel in the malkhana. On 5.7.99 proceedings were conducted and proceedings u/s 174 Cr.P.C are Ex.PW17/3. He got the post mortem conducted vide application Ex.PW1/A and after post mortem he handed over the dead body to the family members of the deceased. He took into possession the sample blood and paper vide memo Ex.PW12/1. On 25.10.2000 accused Suresh was arrested as he was in custody in case at PS Dwarka and State Vs. Pradeep Etc. Page No.31 FIR NO.322/99 made a disclosure statement that he was involved in this case. On 1.11.2000 he moved an application for TIP. Accused Suresh had however refused to join the TIP. He recorded the statement of Ct.Ram Nivas and Ct.Puran on 2.11.2000 regarding identification of accused Suresh. In cross examination he has stated that the distances between different places is mentioned in Ex.PW17/DB. The distance between Police Post H Block and place of occurrence was about 2 and half kms and between PS Sangam Vihar and place of occurrence was about 4 Kms. He has not recorded the statements of PCR officials. The investigation remained with him upto 5.7.99. Investigation was again entrusted to him on 25.10.2000. The writing work was done by him in the light of search light. He remained at the place of occurrence for about 3 and half hours. He did not find any electricity at that place. The visibility was such that one could see the things. The visibility without search light was to the extent of 7 to 8 feet. He did not receive any copy of DDR till he remained at the place. He was not handed over the copy of DD no.40B by the duty officer when he reached the PS. He had also not received any information that a scooter was found lying parked near D Block Gali no.1 near Masjid or that blood stained clothes are lying in it. He is unable to recollect the make State Vs. Pradeep Etc. Page No.32 FIR NO.322/99 of camera. He denied the suggestion that all the proceedings were conducted after sitting in the PS. The copy of DD no.40B is Ex.Pw17/DC. He denied the suggestion that accused had already been shown to the witnesses and only for that reason they refused TIP.
26. PW18 SI Raj Kumar has deposed that on 07.07.99 he arrested accused Pradeep from Madangir and prepared arrest memo Ex.PW6/B and conducted his personal search Ex.Pw6/C. He recorded his disclosure statement Ex.PW6/A. The clothes of accused Pradeep were recovered vide memo Ex.PW6/D. He identified trouser Ex.P7 and shirt Ex.P8. He prepared pointing out memo Ex.PW6/DA. He also seized taxi no.DL1T 1080 vide memo Ex.PW9/1 on 25.7.99 from Palam Airport. Accused Vijay surrendered in the court on 5.8.99 with the permission of the court. He refused to participate in the TIP. He was interrogated and his disclosure statement was recorded which is Ex.PW2/B. The scooter used in the crime was recovered at his instance vide memo Ex.PW2/H. Clothes of the deceased were recovered from the dicky of the scooter alongwith stone. He identified the same. He prepared the pointing out memo and got scaled site plan prepared. Both the accused Pradeep and State Vs. Pradeep Etc. Page No.33 FIR NO.322/99 Vijay Pal are present in the court today. In cross examination he has stated that he has not recovered the glass pieces as case property and he does not know from where these glass pieces are there in the case property opened in the court (Glass pieces were found in the case property under sealed in part of the case property). The supplementary statement of Ct.Ramnivas and Ct.Puran Singh are Ex.Pw18/DA and DB. The scooter was recovered on the pointing out of accused Vijay from a garage in sec.5 Pushp Vihar. He has not recorded statement of anybody belonging to the garage. Nobody was available there, though it was a day time. He asked adjoining shopkeeper to join the investigation, however, he did not record their statement. It is correct that the cloths recovered from the dicky of the scooter were blood stained. The DDS recorded in the PS is absolutely in correct manner and DD Ex.17/DC is correct but he does not know who recorded the same. He denied the suggestion that no garage is situated in Sec.5 Pushp Vihar Market or that nothing was recovered at the instance of accused. He arrested accused Pradeep from the corner of gali no.37 Madangir. He was not knowing him before. Informer was with him who pointed out Pradeep. after arrest of Pradeep he was taken to his house where his brother Shashi me State Vs. Pradeep Etc. Page No.34 FIR NO.322/99 him and he was informed about arrest of Pradeep and his signatures were obtained on the arrest memo. He has joined any person from his house or from locality in search and seizure of clothes. They went to spot and car was parked on MB Road. From there they went to Palam in search of other accused persons. From Palam they came to Gawalpari and from there they went to PP. Ct.Ram Nivas was not with them. He cannot say whether Ct.Ram Nivas and Ct.Puran were on duty and present in PP when they came to PP. Ct.Ram Nivas and Puran were posted at PP and were on duty on 7.7.99. He denied the suggestion that accused was wrongfully detained on 4.7.99 till 7.7.99 and falsely arrested in this case. He denied the suggestion that accused was shown to the witnesses who were present with him in the PP through out before accused was produced in the court for TIP. He denied the suggestion that a two wheeler scooter having blood stained clothes was found parked abandoned and was seized on 3.7.99 itself and subsequently he created false evidence and showing the same to have been recovered at the instance of co-accused. 27 PW19 Sh Om Prakash has deposed that he is the registered owner of two wheeler scooter bearing registration State Vs. Pradeep Etc. Page No.35 FIR NO.322/99 no. DL 3SC 5163 which has already been condemned and not working and it was lying abandoned in his property but now it has been observed that somebody has stolen the same. Since it was not in working condition, no FIR has been lodged by him for theft. Copy of RC is Ex.PW2/G. Ld. defence counsels have not objected to the non production of two wheeler scooter. He has further stated that IO has seized the two wheeler scooter in this case and he took the same on superdari vide superdarinama Ex.PW19/A. In cross examination he has stated that he was working at the Devsena Petrol Pump as salesman. It is correct that on the date of incident deceased Pappu has borrowed his scooter from him for his personal work.
28. In defence the accused has examined DW1 Shashi Kumar and he has deposed that accused Pradeep is his younger brother. On 3.7.99 police officials came to their house and informed that some scooter driver of the scooter belonging to them has given beatings to some persons resident of some village and is admitted in the hospital. He alongwith his brother went to the hospital and found Rattan Singh admitted there. Next date police came there and took his brother with them. His brother was not released by them and therefore on 6.7.99 State Vs. Pradeep Etc. Page No.36 FIR NO.322/99 he made complaint to Prime Minister Office regarding aforesaid fact. Copy of the complaint is Ex.DW1/DA. On 7.7.99 he was called in the PS and made to sit whole day and in the evening he was asked to sign certain papers and then allowed to go. Next day he again went to the police post on 8.7.99 and was informed that his brother was placed under arrest. His brother was falsely implicated in this case. In cross examination he has admitted that there is overwriting on the document Ex.DW1/DA. He did not make any complaint to any senior officials because he thought that no one was senior to Prime Minister. He does not know the fate of complaint Ex.DW1/DA. He did not make effort to file complaint case against alleged wrongful detention of his brother. Chowki Incharge Raj Kumar and IO SI Kishan Kr with other police officials came to his house who had lifted his brother from Safdarjung Hospital on 4.7.99. It is correct that on 4.7.99 he did not make any complaint to this effect.
29. In view of the overall analysis of the testimonies of the witnesses it is revealed that PW2 Ct.Ram Nivas and PW12 Ct.Puran are the complainant and eye witnesses in this case. PW1 has conducted the post mortem on the dead body of deceased. PW3 Umar Pal & PW5 Yashpal are the relatives of State Vs. Pradeep Etc. Page No.37 FIR NO.322/99 deceased and they have identified the dead body after post mortem, PW4 HC Mustafa Khan is the FIR recorder, PW7 HC Om Prakash is the draughtsman, PW8 Lady Ct Kusum Lata recorded DD no.7, PW13 Ct.Anil Kumar recorded DD no.14, PW14 Shanker Prasad is the record clerk, PW15 Umed Singh driver of taxi, PW16 HC TC Doman is from PCR and they are formal witnesses but forms the part of investigation. PW11 Ct.Ganga Ram and PW17 SI Krishan Kumar reached at the spot after receiving information. PW6 Ct.Shripal reached with PW18 SI Rajkumar at the house of accused Pradeep and arrested him and later on PW9 HC Suresh joined them at the time of recovery of taxi.
PW10 Sh Rajnish Kumar Gupta Ld.MM has conducted the TIP and PW19 Sh Omprakash is the owner of the scooter.
30. In this case PW2 Ct.Ram Nivas is the complainant and PW12 Ct.Pooran is the eyewitness as they both were on patrolling duty at the time of incident. As per their version available on file it has been stated by them that they have seen the scuffle/grappling between four boys and three boys were hitting a fourth one with stones. On seeing PW2&12, two boys ran towards jungle and one escaped on scooter parked there. In cross examination he has stated that first time message State Vs. Pradeep Etc. Page No.38 FIR NO.322/99 on wireless was given when the accused persons were escaping. This message was noted down at PP H Block who inturn got recorded DD no.14 Ex.PW13/1. I have also perused the said DD. The contents of the said DD are reproduced hereunder:-
'Time 7.20 p.m S-50 informed through wireless that SM-38 informed that near Tuglakabad Quila one person is lying unconscious. It was recorded in the DD register and DD was handed over to SI Krishan Kumar who alongwith Ct.Ganga Ram went to the spot for further action."
31. As per the contents of this DD only information with regard to person lying unconscious near Tuglakabad Quila is given. This was the first DD after PW2&12 have witnessed the incident. But it has not been got recorded by PW2 that scuffle/grappling has taken place between some boys & out of them three have escaped and one is lying in injured condition. PW16 HC TC Doman who was on PCR van on that day has got admitted the injured in the hospital. He has stated in his cross examination that he does not recollect whether he told the doctor on duty that injured was found lawarish. I have also perused the MLC Ex.Pw14/1. It is a MLC of unknown person wherein it is mentioned 'Brought to the hospital by PCR with history of being found deserted'. If the injured would have been State Vs. Pradeep Etc. Page No.39 FIR NO.322/99 beaten, it should have been mentioned in the MLC because the PCR official must have enquired from Ct.Ram Nivas and Ct.Puran who were present at the spot and witnessed the incident about the injuries sustained by the deceased. I have also perused the death summary prepared at Safdarjung Hospital on with dated and time of death 4.7.99 at 9.45 a.m is mentioned. Further it is mentioned "Referred from AIIMS, the patient had alleged history of RTA, the history of IOC, Nasal bleed (Patient a known case of Palm k). As per these documents it is coming on record that it was a case of Road Traffic Accident.
32. Pw2 has stated in cross examination that when accused were grappling he did not give wireless message. So, he has seen those persons while grappling but he did not try to intervene or go to those persons immediately for stopping them or warned them. He did not give any wireless message at the time when he saw grappling. He has further stated that first message was given by him when accused were escaping with scooter. On perusal of the file it is revealed that no such message that the accused persons ran away from the spot on scooter after causing injuries is available on file and first State Vs. Pradeep Etc. Page No.40 FIR NO.322/99 message is about lying of unconscious person. PW12 is the eye witness and was with PW2 at the time of incident but he do not know whether PW2 flashed message that accused is fleeing away while he is a police official and is not from general public. PW12 has stated that the accused who ran away on scooter was having some clothes in his possession. But it has not been corroboration by PW2 Ct.Ram Nivas. PW2 has further stated that he has witnessed the incident from half a kilometer and there were bushes in between again said from ¾ km. PW12 has also stated that he saw grappling from 300 to 400 meters. So, both the witnesses PW2 & PW12 have admitted that there were bushes and trees in between the spot and the place from where they witnessed the incident. It has also been admitted by them that they witnessed the incident from 300 to 400 meters. It is a matter of general knowledge that if some persons are standing at the distance of 300 to 400 meters away and the area is having bushes and trees in between, one cannot identify the persons standing or grappling there and only some movements of those persons could be seen. The police officials in this case were on motorcycle but they could not chase the accused on scooter. PW12 has stated that they chased the accused on motorcycle and accused was going towards MB State Vs. Pradeep Etc. Page No.41 FIR NO.322/99 Road but PW2 has stated that the accused was going towards Batra Hospital. PW2 has also made improvement in his statement that he saw three boys beating one and injured was given injuries on head and forehead. It is further stated by PW2 that when they saw grappling all the four boys were wearing clothes. But subsequently injured was found wearing only underwear. The police officials reached there within 2/3 minutes from the place they witnessed the incident. Both the Pws have stated that they have seen the incident but they have not seen the accused persons taking off the clothes of injured and there is no evidence in this regard that they have also seen the accused persons taking off the clothes of injured. When they have not seen them taking off the clothes of injured then how the clothes of injured came in dicky as alleged. PW2 has stated that he saw accused Vijay Pal firstly on 5.8.99 when he surrendered and then in JC. The date of incident is 3.7.99 and when he saw accused Vijay Pal first on 5.8.99, it seem that he has not seen him on 3.7.99 on the day of incident. PW12 has stated that when they came back Ct.Ram Nivas flashed message that 3 persons had assaulted one with stones and feeling away. But perusal of the record indicate that no such information is recorded in any DD register and if such State Vs. Pradeep Etc. Page No.42 FIR NO.322/99 information was there as to why Section 304 was added in this case FIR. Perusal of the testimony of PW3 & 5 who are relatives of deceased and identified the dead body have not made any allegations against the accused persons. PW11 has stated that some persons were present in the temple but they were not made witness by the IO. At the time of incident also some persons might have been present over there. The place of incident was about 300 to 400 meters from the temple and those persons present in the temple must have heard the screaming of injured when stones were being pelted on his person by the accused persons. But none of such independent witness has been examined by the prosecution. Even police has also not tried to interrogate the pujari or any other devotee in the temple in this respect. The Police has made two police officials as complainant and eyewitness in this case. But no DD about their departure on patrolling on the alleged day of incident has been proved or exhibited by the prosecution. The testimony of PW2&12 is not reliable and they have given untrustworthy statements. So, I have also considered the other circumstances of the case.
33. The statement of PW2 Ct.Ram Nivas was recorded by State Vs. Pradeep Etc. Page No.43 FIR NO.322/99 PW17 SI Krishan Kumar on which he made endorsement and got the case registered. I have also perused the FIR. Initially the FIR of this case Ex.PW4/A was registered u/s 308/34 IPC on the basis of DD no.19A. But the prosecution has not proved the said DD on record while it was recorded by PW4. PW4 HC Mustafa Khan in cross examination has stated that in the original FIR in column no.3 section 304 IPC was incorporated by him at the same time with 308/34 IPC copy of original is Ex.PW4/DA. Section 304 IPC was added by him subsequently after the registration of the FIR and he might have incorporated the same on the directions of the senior officials or SHO. He further admitted that he did not send the copies of FIR to senior officials or concerned MM. On perusal of the FIR Ex.PW4/DA, it is revealed that initially the case was registered u/s 308 IPC and then Section 304 IPC was added. Thereafter it was changed to murder u/s 302/201/34 IPC. Reading Section 304 IPC is altogether different from section 308/302/201 IPC. Section 304 IPC relates to the accident while 308 IPC related to the culpable homicide and 302 IPC is related to the murder. There is no evidence available on file as to when the FIR was changed to u/s 302/201/34 IPC and on whose instance it was changed. By adding sec 304 IPC in the FIR Ex.PW4/DA, the State Vs. Pradeep Etc. Page No.44 FIR NO.322/99 prosecution has created doubt in the mind. On the other hand the present case was heinous crime for which the copy of FIR should have been sent to Ld. MM/Sr. Police Officials after its recording. But the prosecution has not examined any witness in this respect who delivered the copies of FIR to Ld. MM/Sr. Police officials. Also none of the witnesses examined by the prosecution have deposed about delivering the copies of FIR to Ld.MM/Sr. Police Officials. PW4 who is FIR recorder in this case has admitted that he did not send the copy of FIR to Sr.Police Officials and Ld. MM. So, it seems that the FIR itself is doubtful in this case.
34. In this case the MHCM has not been examined by the prosecution to prove the entries with regard to depositing of case property in the malkhana. No malkhana register has been produced or exhibited in this case. On the other hand at the time of examination of PW18 SI Raj Kumar some glass pieces were found in the case property and witness has stated that he has not sealed the same and he does not know from where these glass pieces came in the case property. There is no explanation as to from where the glass pieces came in the case property.
State Vs. Pradeep Etc. Page No.45 FIR NO.322/99
35. The prosecution has tried to connect the accused person with the case crime with the help of scooter no. DL3SC 5163. It is stated by PW17 that he collected the information regarding ownership of scooter on phone. He informed the owner and took him to AIIMS who identified the dead body of Rattan Singh. In this case scooter was recovered at the instance of accused Vijaypal on 10.08.99 vide memo Ex.Pw2/H as alleged by the prosecution. The date of present case incident is 3.7.99. PW5 & 7 have identified the dead boyd on 5.7.99. When the scooter was recovered on 10.8.99 , it is not tenable that the owner of scooter has identified the dead body on or after 10.8.99 because dead body was not preserved for such a long time. It seems that the scooter was already in possession of Police on 3.7.99. PW18 SI Raj Kumar has stated that disclosure statement of Vijay Pal was recorded on 10.8.99 and he got recovered scooter from a garage situated in sector 5 Pushp Vihar, Delhi. As per the eye witness scooter was taken by Suresh from the spot. It was belonging to Om Prakash who is father of accused Pradeep but recovered at the instance of Vijay Pal from garage as per PW2 and as per PW18 from the house of Pradeep on 3.7.99 which was parked outside the house. I have State Vs. Pradeep Etc. Page No.46 FIR NO.322/99 also perused DD no.40 B dated 3.7.99 Ex.PW17/DC. In this DD it is recorded at about 7.45 p.m that at D Block, Gali no.1 Near JD Khan Masjid, one scooter is parked in which there are blood stained clothes are lying and this DD was handed over to HC Ramesh. So, it was in the knowledge of Police even on 3.7.99 about the scooter and DD in this respect was handed over to HC Ramesh. Even PW11 Ct.Ganga Ram also stated that IO received the information at the spot regarding lying of abandoned scooter. So, this scooter might have been taken away by the police on the same day. But as per the prosecution story it was recovered at the instance of accused Vijay Pal on 10.8.99 from garage. So, the disclosure statement of accused Vijay Pal Ex.PW2/G as well as recovery of scooter are doubtful.
36. AS per FSL result Ex.PZ, Ex.4 i.e. light brown colour earth and Ex.5 i.e. also light brown coloured earth both were found to be similar. As per serology results Ex.1 (stain lifted from stone piece), Ex.2 (stain lifted from slippers), Ex.3 (stain cotton swab), Ex.4 (stained soil), Ex.6 (blood sample on cloth piece), Ex.7 (stained gauze) and Ex.10/4(stain lifted from stone) were found positive for blood but result of origin and group were State Vs. Pradeep Etc. Page No.47 FIR NO.322/99 found inconclusive and on Ex.9/A (pant cuttings), Ex.10/A(pant cuttings), Ex.10/b (Shirt cuttings) blood of human of A Group was found. As per seizure memos EX.PW2/H and Ex.Pw6/D clothes of deceased and accused Pradeep were seized. But there is no evidence on file to show as to which clothes were sent to FSL for comparison.
37. As per prosecution case, accused Pradeep was arrested in this case on 7.7.99. As per complaint available on file the brother of accused Pradeep informed the Prime Minister on 6.7.99 regarding forcibly picking up of Pradeep by the Police. There was no reason for the brother of accused Pradeep to make complaint on 6.7.99 before the arrest of accused. It seems that police might have picked him up before arrest because PW6 & 18 have given contradictory statements regarding arrest of accused Pradeep. Pw6 has stated that Pradeep was arrested from his house at Madangir and PW18 has stated that he was arrested from the corner of gali no.37 Madangir. So, one witness has stated that he was arrested from his house and one has stated that he was arrested from the corner of gali no.37. Perusal of further cross examination of PW6 revealed that he has stated that arrest of accused Pradeep State Vs. Pradeep Etc. Page No.48 FIR NO.322/99 was shown in the police station and only for this reason signature of any person could not be obtained on Ex.PW6/B&C which are arrest memo and personal search memo of accused. So, firstly PW6 has stated that accused was arrested from his house and then that his arrest was shown in the police station and PW18 has stated that he was arrested from the corner of Gali no.37. They have given contradictory statements regarding arrest of accused Pradeep. Further, on the basis of disclosure statement of Pradeep, his clothes were recovered from underneath of Sofa from his house vide memo Ex.Pw6/D on 7.7.99. The present case incident has happened on 3.7.99. As per the case the accused has got recovered his clothes from his house from underneath of sofa. In the house of accused Pradeep his parents including his brother are also residing. The said clothes kept on lying for about four days under the sofa. There was sufficient time with the accused or his family members to wash those clothes. On the other hand there since the MHCM has not been examined in this case there is no evidence on record to show as to which clothes were sent to FSL either of accused Pradeep or the deceased. There is no evidence on record to prove as to whether the blood stained clothes of deceased recovered from the scooter were also sent State Vs. Pradeep Etc. Page No.49 FIR NO.322/99 to FSL or not. So, the recovery of clothes of accused cannot relate the accused with this case when the recovery of scooter and blood stained clothes lying in dikky of the scooter are under dispute as per DD no.40B dated 03.07.99 and also as per testimony of PW11 Ct.Ganga Ram while as per the case of the prosecution the scooter was recovered at the instance of accused Vijay Pal on 10.8.99 from garage. IN view of this the disclosure statement of accused Pradeep Ex.PW6/A cannot be taken into consideration.
38. In this case the accused persons have refused to participate in the TIP. It is the case of the prosecution that both PW2 Ct.Ram Nivas & PW12 Ct.Pooran Singh have witnessed the incident. Considering their testimonies available on file, they have given unreliable and untrustworthy evidence. There are various contradictions in their testimonies. Being police officials they should have given the correct and proper information to the control room regarding the incident. But they did not do so. They were on motorcycle and both the accused ran away from the spot on scooter. Being police officials and being on motorcycle they could not chase the accused persons on scooter. It is admitted that at that time Ct.Ram Nivas PW2 was State Vs. Pradeep Etc. Page No.50 FIR NO.322/99 having service pistol with him as well as wireless set. When they had seen such an incident, he should have taken some precautionary steps just to stop the culprit or immediately should have sent the message as such so, that accused persons could not have ran away. It is stated by PW2 in cross examination that on 7th July 1999 at the time of apprehension of accused Pradeep he was not present though he was present in the PS. As per the testimony of PW3& PW5 both have deposed in their testimonies regarding presence of the accused Pradeep and scooter in the police post when they went to the police post. It is admitted by him that he is posted in PS Sangam Vihar. It is quite natural that after arrest of accused he might have been brought to PS where the witness might have seen him. PW12 has stated in his cross examination that he does not know as to whether he had seen accused Pradeep after 3rd July 1999 and before recording of his statement in the court. PW12 was also working in PS Sangam Vihar at the time of incident. When the accused was brought in the PS, he must have also seen him. Even both the witnesses must have seen accused in the court. Even in cross examination PW6 Ct.Shripal Nagar has stated that Ct.Ram Niwas and Puran Singh were also present in the police post on 7.7.99 at the time of arrest of accused State Vs. Pradeep Etc. Page No.51 FIR NO.322/99 Pradeep. Ct. Ram Niwas and Puran Singh had also accompanied them to various places in Delhi and Gurgaon in search of other co-accused. When the witnesses had seen the accused before TIP, his refusal to participate in TIP by the accused Pradeep cannot go against him. In this regard reliance can be placed on case law 1990 (2) CC Cases 402 (HC), 1990 CRI.L.J. 68, 1982 CRI L.J.1656.
39. PW12 has stated that on 02.11.2000 he went to PS Delhi Cantt with SI Krishan Kumar where accused Suresh was in the PS. On perusal of the testimony of PW17 SI Krishan Kumar he has stated that on 25.10.2000 accused Suresh was arrested as he made disclosure statement about involvement in this case. Both the witnesses have given different date of arrest of accused Suresh. It has come in evidence that accused Suresh was arrested in Arms Act case where he made disclosure statement about the present case incident. But in this case the police official who informed the IO of this case regarding disclosure statement of accused Suresh has not been examined by the prosecution. Even it has also not been stated by both the witnesses as to which police official from PS Delhi Cant gave information regarding disclosure of accused Suresh about the State Vs. Pradeep Etc. Page No.52 FIR NO.322/99 present case crime. On the basis of disclosure statement of accused Suresh, no recovery has been effected. So, his disclosure statement cannot be taken into consideration.
40. In this case the incident had happened near Kaya Maya Temple. It has been admitted by the police witnesses that there was devotees at the place of incident and even Pujari of the temple was also there. But perusal of the record shows that no Public person was joined in this case at the time of recovery.
In case law 1997 CRI.L.J 2978 it is stated in head note that :-
'Arms Act (54 of 1959), S.25 - Terrorist and Disruptive Activities (Prevention) Act (28 of 1987), S.5 - Seizure of revolver from accused - No attempt by concerned police officer to join with him some independent witnesses from locality to witness recovery - Arms and ammunitions seized from accused not packeted and sealed - No evidence to indicate as to with whom revolver was, after seizure till it was sent to Arms Expert for testing - Accused was entitled to benefit of doubt and therefore acquitted'.
41. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling State Vs. Pradeep Etc. Page No.53 FIR NO.322/99 force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In the present case in hand no evidence to prove motive has been adduced by the prosecution. Only in the disclosure statement of accused Pradeep it has come that deceased was keeping his eyes on the sister of accused Pradeep. But the disclosure statement of accused is not substantive piece of evidence without leading any recovery. The witnesses adduced by the prosecution have also not deposed anything about the motive of accused persons. So, in this case no motive has been proved by the prosecution in accordance with law.
42. I have also perused the case laws relied upon by the State Vs. Pradeep Etc. Page No.54 FIR NO.322/99 Ld. defence counsel in this case. In case Law 2006 (3) JCC 1382 it is stated in head note 4 that :-
'Criminal Trial- Motive- Motive of murder alleged to have been, being illicit relations of deceased with sister of accused - Failure of prosecution to prove whether accused had any sister at all of alleged name and to examine such sister - Motive not established'.
It is further stated in head note 1 that :-
'Criminal Trial - Arrest of accused - Nature and manner of - Credibility of - Accused admittedly not known to witnesses prior to incident - None of witnesses nowhere having passed description of any of persons including accused who had boarded the witness wherein murder was alleged to have been committed. Arrest effected on secret information that the accused was present in park, on being identified by bus conductor - not inspiring confidence.'
43. In the present case in hand there is no reliable evidence available on file that the deceased was lastly seen with the accused persons. The recovery of the clothes of deceased was made by the police from the scooter but that recovery of scooter at the instance of accused Vijaypal is doubtful.
It is stated in case law 1999 CRI. L.J. 135 in head note that :-
'S.300 - Murder - Circumstantial evidence - Evidence of witnesses regarding circumstances of deceased last seen with accused persons not State Vs. Pradeep Etc. Page No.55 FIR NO.322/99 inspiring confidence - Alleged recovery of clothes of deceased at instance of both accused jointly - not admissible in evidence u/s 27 of Evidence Act.
- Also recovery of ring and writ watch belonging to deceased not preceded by disclosure statement of accused - Non-joining of public witnesses though available to said recovery rendering prosecution case doubtful - Motive that deceased advanced money to accused and was also having illicit relationship with wife of accused
- Not proved - Chain of circumstances not complete'.
44. The witnesses PW2 and PW12 adduced by the prosecution being eye witnesses in this case have given contradictory statements. Even the prosecution has not taken any step to prove DD entry regarding their being on patrolling duty on the alleged day of incident. IO has also not made any effort to take the blood samples of the accused persons to know their blood groups so that the same could have been corroborated with the report of FSL.
It is stated in case Law 148(2008) D.L.T 106 (DB) in head note that :-
'IPC 1860 -Sec. 302, 392, 394, 34, 411 - Murder, Robbery, Common intention, Dishonestly receiving stolen property - Circumstantial Evidence - Benefit of doubt - Nagging doubt in regard to chance finger prints, which were sent for comparison with specimen finger prints of appellants actually lifted from scene of crime - Mutually contradictory statements of Pws - Police State Vs. Pradeep Etc. Page No.56 FIR NO.322/99 constables - Presence of blood on T-Shirt matching blood group of deceased does not provide basis to connect appellant S with robbery and murder - Doubt regarding actual presence of police official in area in question with night patrolling in absence of relevant daily diary entries being proved on record grows stronger in view of inconsistencies in statements of PWs in regard to apprehension and recovery of gold ornaments and cash - Non - joining of any witness from public to witness recovery cannot be taken as innocent omission on part of Investigation Officer- It is highly unsafe to hold recoveries actually effected pursuant to disclosure by appellants S and S @ P respectively - Such recoveries cannot constitute incriminating circumstances to find their complicity.
In case Law 1990 (1) CC Cass 250 (HC) it is stated in head note that:-
'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.
'Sec.302 - Murder - Circumstantial Evidence - Its appreciation - No evidence on record to show that any one had seen the deceased in the company of the appellants at any time before the recovery of dead body - House of the appellant situates at some distances from the place of recovery of dead body - No ground to hold the accused guilty for the commission of the crime'.
IN case Law 1979 CRI. L.J. 1159 it is stated in headnote (B) that:
'Criminal P.C. (2 of 1974), Ss.154 and 157 - F.I.R. - Cognizable offence - Sending report to the Magistrate - Non-compliance - Bound to cast State Vs. Pradeep Etc. Page No.57 FIR NO.322/99 shadow on the prosecution case'.
45. In view of the above discussions of the testimonies of witnesses and even facts and circumstances of the case, the prosecution has miserably failed to bring home the guilty of the accused persons.
46. It is peculiar type of case when the responsible police official have seen the incident with their own eyes but they have given their unreliable, untrustworthy statements regarding the incident as well as the circumstances of the case shows that both PW2& PW12, either were not present at the site or they did not see the incident with their eyes. If they have seen the incident with their own eyes as to why they have flashed the message that 'one person is lying unconscious' and PCR officials gave different version in the hospital i.e. 'being found deserted'. Other documents shows that it was a case of Road Traffic Accident. As per the case of the prosecution, the place of incident was a jungle and it has come in the evidence that there were big bushes. So, how a person can see the culprit at the distance of 300 to 400 meters away and in these circumstances no one can identify the face of a particular State Vs. Pradeep Etc. Page No.58 FIR NO.322/99 person and at such a distance only some moments can be noticed of human idol and not a particular person.
47. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs. Karnail Singh that :-
"Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent"
48. In view of my above discussions, I am of the view that the prosecution has failed to prove its case against all the accused persons beyond reasonable doubt. Therefore, all the accused persons are entitled to be given the benefit of doubt. I therefore, give the benefit of doubt to all the three accused persons Pradeep Kumar, Vijay Pal @ Chhotu and Suresh @ Gujjar and all the three accused persons are acquitted from the charges levelled against them u/s 302/201/34 IPC. All the three accused are on bail. So,their bail bonds are hereby cancelled and sureties are discharged. File be consigned to State Vs. Pradeep Etc. Page No.59 FIR NO.322/99 Record room.
Announced in the open Court on 07.10.09.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court) (New Delhi and South East District) NEW DELHI State Vs. Pradeep Etc. Page No.60 FIR NO.322/99