Delhi District Court
State vs Nilambar Jha 6. Anil Kumar on 27 February, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL SESSIONS JUDGE : FAST TRACK COURTS
ROHINI : DELHI
SC No. 134/06 dated 15/02/2006
Date of Decision: 27-02-2007
STATE
Versus
1. NILAMBAR JHA 6. Anil Kumar
S/o Sh. Bindeshar Jha, S/o Sh. Lakhpat Singh R/o
S-46, Gali No.8, R/o A1, S-Block,
Vikas Nagar, Uttam Nagar, Vikas Nagar, Uttam Nagar,
Delhi. Delhi.
2. PREM PAL
S/o Het Singh,
R/o S-33, Vikas Nagar,
Delhi
3. RAM KISHAN VERMA
S/o Sh. Jawala Pd.
R/o H.No. 64, S-Block,
Gali No.8, Vikas Nagar,
Delhi
4. RAM KUMAR PATHAK
S/o Sh. Kailash Babu Pathak,
R/o S-33, Vikas Nagar,
Delhi
5. RAJESH KUMAR
S/o Sh. Kailash Babu
R/o H.No. S-33,
Vikas Nagar, Delhi.
FIR No. 573/03
PS Uttam Nagar
U/s. 308 r.w. section 34 IPC
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JUDGMENT
All the accused persons, named above, have been facing trial for an offence u/s 308 IPC read with section 34 IPC on the allegations that on 10/07/2003 at about 07:30 a.m. at S.Block, Street no. 12, Uttam Nagar, all of them in furtherance of their common intention caused injuries on the person of Ajay Pal Singh, Jai Pal Singh and Mohd. Alam with such intention or knowledge and under such circumstances that, if by that act all the accused had caused death of these three persons they would have been guilty of culpable homicide not amounting to murder.
2. Ajay Pal Singh complainant was Contractor for supply of electricity. On 10.07.03, he was going for his duty. When he reached street no.12, S Block, Uttam Nagar, Ram Kumar Pathak, Ram Kishan and Prem Pal accused stopped, abused and attacked him with fists and kick blows. In the meanwhile Nilambar Jha, Rajesh and Anil Kumar accused also reached there. Nilambar Jha and others kept on inflicting fists and kick blows on his person. Anil Kumar was holding an iron pipe. He hit iron pipe on the head of Ajay Pal Singh. As a result Ajay Pal Singh fell down.
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3. Jaipal Singh PW2 was going for his duty. He witnessed the occurrence. Jaipal Singh and Mohd. Alam tried to save Ajay Pal Singh and then cried for help. Then Anil Kumar inflicted injury on the head of Jaipal Singh and Mohd. Alam with same iron pipe . On hearing their cries, Vikas son of complainant, and Sanjay Khurana reached there and saved Ajay Pal Singh, Jai Pal Singh and Mohd. Alam. Vikas Singh Yadav brought his Maruti car 800 to the spot and removed his father and Jai Pal Singh to DDU hospital and got them admitted there.
4. Dr. Pooja Bhasin of DDU hospital medico legally examined Ajay Pal Singh. Dr. Amrish Singh medico legally examined Jai Pal Singh. Md. Alam was also medico legally examined at DDU hospital by Dr. Praveen Kumar.
5. On 10.7.03 at 07:43 a.m. ASI Ramesh Chander, Duty Officer, received a call from PCR and reduced the same into writing as DD entry no.46A. The ASI then accompanied by Ct. Surat reached street no.12, S Block Vikas Nagar, where he learnt that injured persons had already been removed to DDU hospital. The SI then accompanied by Ct. Surat Singh reached the hospital and found Ajay Pal Singh, Jai Pal Singh and Md. 4 Alam present there. Ajay Pal Singh was declared unfit to make statement. SI Ramesh Chander then recorded statement of Jai Pal Singh, appended rukka thereto and send the rukka to the police station through Ct. Surat Singh, where FIR was recorded.
6. SI Ramesh Chander then reached the spot and prepared rough site plan at the pointing of Vikas Singh. Ram Pathak and Prem Pal accused were arrested. Nilambar Jha accused was found present outside the police station. He was arrested as pointed out by Vikas Singh, PW. Blood stained clothes of all the three injured were seized by the police.
7. On 15.7.03, SI Ramesh Chander constituted a raiding parties consisting of two Constables and Vikas Singh and reached S Block Vikas Nagar and apprehended Ram Kishan Verma accused. On 27.7.03, Ajay Pal Singh complainant, while present at the PS, pointed towards accused Anil kumar as one of the assailants. Accordingly, he too was arrested. Iron rod was seized from the house of accused Anil Kumar. It was turned into parcel and then taken into possession. On 05.09.03, SI Ramesh Chander formally arrested accused Rajesh Kumar as he was on bail under orders of anticipatory bail. 5
8. After completion of investigation, challan was put in court. Copies of documents replied upon by the prosecution were supplied to the accused persons free of cost. Then case came to be committed to Hon'ble Court of Session.
9. Charge for offence U/s. 308 read with Section 34 IPC was framed against all the six accused vide order dated 08.10.04. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
10. In order to prove its case, prosecution examined following 12 witnesses:
PW1 Ajay Pal Singh and PW2 Jaipal Singh have deposed about the manner in which the occurrence took place on 10.07.03 at about 7.30 a.m., in street No.12 of S-Block of Vikas Nagar, Delhi.
PW7 Vikas Singh Yadav is son of Ajay Pal Singh (PW1). He has also deposed about the manner in which the occurrence took place.
PW8 Sanjay Khuman is another witness who found Anil accused holding an iron rod, while present in street No.12. According to him, some other persons were also present there but he could not tell as to who they were, as they had run away 6 from the spot. Further, according to him, Ajay Pal Singh, father of Vikas, Alam and another were also lying in the street in injured condition and that he removed Ajay Pal Singh and Alam to DDU hospital in his car, with the help of Vikas PW.
Medical evidence is available in the statement of PW3 Dr. Pooja Bhasin. The doctor deposed about medico legal examination on the person of Ajay Pal Singh vide MLC Ex.PW3/A and medico legal examination of Jaipal Singh vide MLC Ex.PW3/B prepared by Dr. Amrish Singh.
PW4 Dr. Praveen Kumar deposed about medico legal examination of Mohd. Alam vide MLC Ex.PW4/A. PW10 Sh. Rajiv Sharma, X-ray technician has deposed about examination of X-ray plates Ex.PW10/1 to 6 and report Ex.Pw10/A. PW6 HC Sohan Dev has proved recording of FIR Ex.pW6/A on the basis of rukka received from Ct. Suraj Singh at 12.10 p.m. at PS Uttam Nagar.
PW5 ASI Ramesh Chander has proved recording of DD No.6A Ex.PW5/A at PS Uttam Nagar on 10.07.03 at 7.40 a.m., on receipt of call from PCR.
PW9 Ct. Balbir Singh, PW11 SI Ramesh Chand and 7 PW12 Ct. Suraj Singh have deposed about investigation part of prosecution story.
11. When examined U/s. 313 CrPC, all the accused persons have denied incriminating circumstances appearing in evidence against them and claimed false implication.
Plea put forth by accused Nilambar Jha is as under:
On 10.07.03 I was present at my shop which forms part of my residential building. At about 7 am, Ajay Pal Singh, his son Vikas, Phool Dev and 50 others armed with lathies/dandas came in front of my shop and ultimately entered my shop while abusing me. Ajay Pal Singh and Vikas dragged me out of my shop. Both of them abused me and gave me beatings. Ajaypal Singh caused me injuries with a lathi whereas Vikas inflicted injuries with a hockey. I fell down. Prem pal PW was present at my shop as he had come to buy sugar and tea. He advised the accused not to give injuries as I had fallen down. Thereupon, 8 Ajay Pal Singh and Vikas inflicted injuries even on the person of Prem Pal. Persons from the locality pelted stones at Ajay Pal Singh, his son and his other companions whereupon all of them fled away from the spot. From there, I accompanied by Prem Pal reached DDU hospital. Both of us were medico legally examined there. From the hospital, both of us returned to our house. My brother Bishambar Jha telephonically told me that I have been called by the police at PS Uttam Naggar. Ram Kumar Pathak had telephonically informed my brother Bishambar Jha that we had been called at PS I accompanied by Prem Pal went to Uttam Nagar. I, Prem Pal and Ram Kumar Pathak were then arrested by the police.
Plea put forth by accused Prem Pal is as under:
On 10.7.03 at about 7 AM I reached the shop of Nilamber Jha to buy tea and sugar at that time I found Ajay Pal Singh and Vikas 9 dragging Nilamber from the shop. Phool Dev Jha was present outside the shop. Suraj Jha was also present there. Ajay Pal Singh and Vikas started inflicting injuries on the person of Nilamber Jha with a lathi and hockey respectively, as a result where of he fell down. I tried to save Nilamber Jha. At that time Ajay Pal Singh raised alarm that since I was showing sympathy, I should be dealt with . Thereupon Vikas inflicted hockey on my head and I suffered injury. I fell down at the spot having become unconscious. When I regained consciousness, I accompanied by Nilamber Jha reached DDU Hospital.
Plea put forth by accused Ram Kishan Verma is as under:
I have been falsely implicated. On 10.7.03 at about 8 AM I was present at my shop situated in front of street no.8 Vikas Nagar, At that time Ajay Pal Singh, Phool Dev Jha, Mohd. 10
Alam, Vikas s/o Ajay Pal Singh came to my shop . They were accompanied by 7/8 persons all of them armed with lathi and dandas. I ran away from my shop. My wife put the shutter of my shop down.
Plea of accused Anil Kumar is as under:
I have been falsely implicated. I was elected as President of residents welfare association on 27.04.03, S-Block, Vikas Nagar. A meeting of the association was convened after my election, in which residents of S-Block complained against Ajay Pal Singh Complainant that he was charging excess money towards electricity and that matter be taken up with him.
On 10.05.03 a letter was sent to Ajay Pal Singh by the association but he refused to have any dialogue with the members of the association. We reported the matter to the police of PS Uttam Nagar. Our association sent complaints to various authorities of electricity supply company i.e. BSES. The said company 11 called upon the association and Ajay Pal Singh for discussion in their office on 15.07.03. Thereafter Ajay Pal Singh lodged a false complaint with the police that Ram Pathak , Vice President of our association was indulging in theft of electricity. Thereupon, we went to the PS and apprised them that no theft was being committed by Ram Pathak. Accordingly, no action was taken by the police against Ram Pathak.
On 07.07.03 it was decided by the association that a procession be taken out against Ajay Pal Singh. On 08.07.03 we informed police of PS Uttam Nagar in this respect. On 09.07.03 we took out the procession against Ajay Pal Singh at about 10 am. I have been falsely implicated in this case. Plea of accused Ram Kumar Pathak I have been falsely implicated as I am brother of Ram Pathak, Vice president of 12 RWA of S-Block.
Plea of accused Rajesh Kumar I have been falsely implicated. I was Vice President of RWA of S Block, Vikas Nagar. On 09.07.03 we took out a procession against Ajay Pal Singh because Ajay Pal Singh was collecting amount in excess to the actual consumption of electricity and whenever any consumer went to him to complaint he used to abuse. About 5/6 months prior thereto I had also submitted a complaint to the police that my electricity meter was running fast. I also complained to Ajay Pal Singh in this respect but he threatened me. That is why I have been falsely implicated."
In defence, accused persons have examined DW1 Trilok Chand, DW2 Beena Rani and DW3 Anil Kumar.
12. Occurrence is alleged to have taken place on 10.7.2003 at about 7.30 a.m, in street No.12 of S Block, Vikas 13 Nagar, Uttam Nagar, Delhi. Present case was registered on the statement of Jaipal Singh, one of the three injured persons, recorded at DDU Hospital, Delhi and concluded by SI Ramesh Chander at about 11.40 a.m. The SI happened to reach the hospital in the company of constable Surat Singh after receipt of DD No.46 A. DD No.46 A was recorded at P.S.Uttam Nagar at 7.43 a.m. As per information contained in this entry in DD No.46 A Ex.PW5/A there was some dispute at the back of B.R.Public School in F Block.
13. In the Ruqqa Ex.PW11/A it stands recorded that Constable Surat Singh accompanied by SI Ramesh Chander firstly reached street No.12 but no injured was available there and as such both of them reached the hospital and collected these MLCs of the three injured. At that time, Ajay Pal Singh was declared unfit to make statement. As noticed above, case was registered on the statement of Jai Pal Singh. In the Ruqqa Ex.PW11/A it does not stand recorded that Jai Pal Singh and Mohd. Alam, other two injured also met the SI and the Constable at DDU Hospital. Had SI Ramesh Chander recorded Ex.PW2/A statement of Jai Pal Singh at DDU Hospital, he must have mentioned about the same in the Ruqqa. It is surprising 14 that in the Ruqqa appended to statement Ex.PW2/A there is no mention at all about recording of statement of Jai Pal Singh. Furthermore, PW2 Jai Pal Singh categorically denied to have made any statement before the police. Ordinarily, it is mentioned in the Ruqqa as to from where same was being sent to the police station i.e. if the same was being sent from the spot or from the hospital or from some other place. But in this case, Ruqqa Ex.PW11/A does not depict as to from where Ruqqa was sent by the Sub Inspector through constable Surat Singh. When there is no mention in the Ruqqa that Jai Pal Singh and Mohd. Alam, the other two injured were found admitted in the hospital or that they were fit to make statement and that statement of Jai Pal Singh was recorded in the hospital, it remains unexplained as to where statement of Jai Pal Singh was recorded and consequently it becomes doubtful if statement Ex.PW2/A of Jai Pal Singh leading to registration for this case was actually recorded at about 11.40 a.m. It also remains unexplained as to where were Jai Pal Singh and Mohd. Alam injured when Ajay Pal Singh injured was lying unconscious at DDU Hospital.
14. PW7 Vikas Singh son of Ajay Pal Singh and PW8 15 Sanjay Khurana have different version to state about removal of injured to hospital. According to PW7 he brought his Maruti 800 car and removed his father and other two injured to DDU Hospital and got them admitted there. But PW8 deposed about removal of only Ajay Pal Singh and Mohd Alam to hospital. He did not depose about removal of Jai Pal Singh to hospital. The witness was put leading questions by Addl.Public Prosecutor but he denied to have stated that third person (Jai Pal Singh) was also removed to hospital in the same car in which Ajay Pal Singh and Mohd. Alam were removed by them. So, according to him, they had removed Ajay Pal Singh and Mohd.Alam to DDU Hospital in car. Had Vikas and Sanjay Khurana actually removed all these injured to hospital, name of either of them must have been mentioned by the doctor in the relevant column meant for relative or friend accompanying injured person and then PW8 would not have denied that Jai Pal Singh was also removed to hospital in the same car. MLCs Ex.PW3/A, Ex.PW3/B and Ex.PW4/A in respect of injuries on the person of Mohd. Alam; Ajay Pal Singh; and Jai Pal Singh, were prepared on 10.7.2003 between 9.45 a.m. to 10 a.m at DDU Hospital. Name of Constable Surat Singh No.1153/W finds mentioned in 16 the column meant for relative or friend of the injured. This goes to show that all these injured were brought to hospital by Constable Surat Singh. As mentioned in the Ruqqa, none of the injured was available at the spot when the SI and the constable reached there. Had the injured of their own reached the hospital or had they been brought there by anyone else, name of Constable Surat Singh would not have found mentioned in the MLCs. So it appears that actually all these injured were brought to the hospital by Constable Surat Singh either from their house or from the police station. From the statements of PW7, PW8 and contents of the Ruqqa it appears that statement of Jai Pal Singh was not recorded in the hospital at the given time, but the same was recorded by the police at convenience after securing his presence and that too after scribing Ruqqa Ex.PW11/A. All this puts the Court on guard to scrutinize the statements made by the prosecution witnesses regarding the manner in which the occurrence took place.
15. According to PW2 Jai Pal Singh on 10.7.2003 at about 7.30 a.m while going for his duty when he reached at the corner of street No.12, quarrel was going on between Ajay Pal Singh and Anil; that they were abusing each other; that other 17 accused persons were also present there and they all started beating Ajay Pal Singh; that Anil came there with an iron pipe and started beating Ajay Pal Singh and that he gave an iron pipe blow on the head of Ajay Pal Singh; that when he tried to save Ajay Pal Singh and cried for help, accused persons also caused injuries to him and that he suffered injury on his head; and that on hearing their cries Vikas and Sanjay Khurana also came there and they saved them from the accused persons.
16. As per the above version narrated by PW2 in Court, Anil accused, who was initially abusing Ajay Pal Singh in presence of other accused, left the spot and returned with an iron pipe. When we advert to the statement Ex.PW2/A attributed to PW2 Jai Pal Singh, it would transpire that therein he stated that Nilambar Jha, Ram Kishan Verma, Ram Kumar Pathak and Prem Pal Singh were abusing Ajay Pal Singh after stopping him in the street; that they started giving him kick and fist blows; and that when he tried to intervene to save Ajay Pal Singh, Ram Kumar Pathak started giving slaps and fist blows to Ajay Pal Singh; that in the meanwhile Anil Kumar came there with an iron pipe and inflicted injury on the head of Ajay Pal Singh resulting in his fall; that even thereafter Anil Kumar 18 continued causing injury on the head of Ajay Pal Singh with the iron pipe. So this version of PW2 as available in Ex.PW2/A is different from the one narrated by him in Court in as much as in Ex.PW2/A he did not state that Anil Kumar was also present there or quarrelling with Ajay Pal Singh. Therein, it stands recorded that Anil Kumar came afterwards and inflicted injuries on the head of Ajay Pal Singh with an iron pipe. There is another significant contradiction in the two versions of Jai Pal Singh. In Ex.PW2/A he also deposed about infliction of injury by Anil Kumar on his person and on the person of Mohd. Alam when they tried to save, but in Court, PW2 nowhere deposed about presence of Mohd. Alam at the spot or that Anil Kumar inflicted injury on the person of Mohd. Alam as well when he tried to save. Surprisingly, in his cross-examination PW2 deposed that all the accused persons were empty handed. This demolishes the case of prosecution about arrival of Anil Kumar with iron pipe or infliction of injuries with that iron pipe on his person, on the person of Ajay Pal Singh and Mohd. Alam. In the next sentence, he displayed ignorance as to at what time Mohd. Alam came there. In his case, Mohd. Alam has not been examined in Court to support the prosecution version. 19 According to PW2, he sustained injuries and became unconscious. Jai Pal Singh nowhere deposed about arrival of Vikas Singh son of Ajay Pal Singh or about arrival of Sanjay Khurana PWs. All this makes presence of Jai Pal Singh on the given date, time and place highly doubtful.
17. Then there is statement of PW1 Ajay Pal Singh. According to him, on 10.7.2003 at about 7.30 a.m, while going for his duty when he reached street No.12, Ram Kumar Pathak, Ram Kishan and Prem Pal accused stopped him, started abusing him and attacked with first and leg blows. This goes to show that according to PW1, neither Nilamber Jha nor Anil or Rajesh was present there at that time. According to PW1, Nilambar Jha, Rajesh and Anil Kumar came there running; that Anil Kumar was armed with an iron pipe and gave blow on his head; that other accused kept on giving him leg and fist blows; that he fell down and was removed to DDU Hospital.
18. The above statement of PW1 would reveal that according to him Nilambar Jha, Anil and Rajesh came there afterwards, and as such this version is against the version available in the statement of PW2 Jai Pal Singh made in Court and the one made before the police. According to PW2 Jai Pal 20 Singh only Anil Kumar had left the spot and brought iron pipe, but according to PW1, Anil Kumar came there afterwards in the company of Nilambar Jha and Rajesh, and at that time, he was armed with an iron pipe. PW1 nowhere deposed to have seen Jai Pal Singh or Mohd. Alam being inflicted injuries by the accused persons. Admittedly, Mohd.Alam was his tenant. PW1 denied in his cross-examination that he had become unconscious when Ram Kumar Pathak, Ram Kishan and Prem Pal Singh attacked him with fist and leg blows.
19. Statement of Ajay Pal Singh was recorded 2/3 days after the occurrence. According to PW1, his statement was recorded on 12.7.2003. A perusal of MLC Ex.PW3/A would reveal that at the time Ajay Pal Singh was got admitted in the hospital by constable Surat Singh, he was conscious. There is nothing in the medical record to suggest that he was declared unfit to make statement. So it remains unexplained as to why the Investigating Officer opted to get this case registered on the statement of Jai Pal Singh and as to why he did not record statement of Ajay Pal Singh who was also conscious and as to why his statement was recorded afterwards i.e. on 12.7.2003. All this goes to show that police recorded statement of Ajay Pal 21 Singh as per their convenience for the reasons best known to them as rightly contended by learned defence counsel.
20. Then there is statement of PW7 Vikas Singh son of Ajai Pal Singh. According to him, on 10.7.2003 at about 7.30 a.m. he was present in front of his house after his father had left for his duty. At that time, he heard noise emanating from the side of street No.12, whereupon he reached there and found that his father was lying on the ground with blood oozing out of his head and shirt stained with blood, besides two others namely Mohd. Alam and Jai Pal Singh who too were lying on the ground. He further deposed that all the six accused present in court were present there and abusing his father and that Anil Kumar accused was holding an iron rod. He further deposed that Sanjay Khurana, his neighbour had also accompanied him to the spot on hearing noise. However, lateron PW7 deposed that when they reached there, all the six accused ran away from the spot; that thereafter he removed all the three injured to the hospital.
21. From the above statement of PW7 it transpires that he did not witness any of the accused inflicting injuries on the person of his father or Mohd. Alam or Jai Pal Singh or giving 22 beatings to anyone of them. In his cross-examination, he admitted that none told him at the spot as to how his father and other two had sustained injuries. As noticed above, had he removed his father, Mohd. Alam or Jai Pal Singh, his name or name of Sanjay Khurana must have been mentioned by the doctor in the MLCs, but in the MLCs name of Constable Surat Singh stands recorded in the column meant for name of relative or friend accompanying the injured. Had he been present in the hospital, he must have made statement before the police. But in is cross-examination, he deposed that on the day of occurrence, he visited the police station in the evening and informed Duty Officer but no report was reduced into writing. This goes to show that he did not know that statement of Jai Pal Singh was recorded at the hospital at about 11.45 a.m. and that formed basis of the FIR. Had he reached the spot or had he been present in the hospital, he must have been within the know that case was registered at about 12.10 p.m. Then there was no need for him to visit the police station in the evening. He has not supported the case of prosecution about preparation of rough site plan of the place of occurrence at his instance or about arrest of Ram Kumar Pathak or Prem Pal Singh in his 23 presence from the spot.
22. Case of prosecution is that blood stained clothes of all the three injured were seized by the police on 10.7.2003. According to PW11, he seized blood stained clothes on 10.7.2003, but he did not state as to from whom and where did he seize these clothes. On the other hand, PW7 Vikas Singh wants the Court to believe that he had produced clothes of his father, those of Jai Pal Singh and Mohd. Alam on his return to the police station from the hospital. Generally, blood stained clothes are turned into parcel by the doctors and then handed over to the police. But in this case it is not case of prosecution that these clothes were removed by the doctor from the person of the three injured. It remains unexplained as to how Vikas Singh came to gather the clothes of the three injured for being produced before the police. There is nothing on record to suggest that the Investigating Officer took any step to send these clothes to FSL for analysis so as to have opinion about existence or origin of blood thereon with a view to connect the same with this case.
23. PW8 Sanjay Khurana deposed on 22.8.2006 that three years prior thereto at about 7/7.15 a.m, he was present in 24 street No.15, when he heard noise emanating from street No.12 and thereupon he accompanied by Vikas reached street No.12 and found that Ajay Pal father of Vikas PW was lying in a pool of blood; that Anil was holding an iron rod; that some other persons, who ran away from the spot, were also present; that blood was oozing from the head of Mohd. Alam; that another was also lying in the street; that they removed Ajay Pal and Mohd. Alam to DDU Hospital in a private car and got them admitted there, but the third person did not accompany them. The witness could not tell as to who were the persons present at the spot, who ran away from there. In this respect, when leading questions were put to the witness by Addl.Public Prosecutor, he denied to have falsely deposed regarding presence of other accused. He denied to have made any such statement about presence of other accused or that third person was also removed by them to hospital in the same car.
24. From the above statement of PW8, it transpires that he has not supported the case of prosecution regarding presence of accused other than Anil. He also nowhere deposed to have seen Anil or anyone else inflicting injuries on the person of Ajay Pal Singh; Jai Pal Singh or Mohd. Alam. Thus, 25 statement of PW8 also does not help the prosecution so as to connect the accused persons with the present crime.
25. As regards place of occurrence, as per prosecution version the occurrence took place in street No.12. PW11 SI Ramesh Chander deposed that he prepared rough site plan Ex.PW11/B as pointed out by Vikas Singh who was present there. But PW12 Constable Surat Singh nowhere deposed about preparation of rough site plan. PW11 wants the Court to believe that when he reached the spot, Ram Pathak and Prem Pal Singh accused were present at the spot and they were arrested in presence of Vikas Singh and Sanjay Khurana. Sanjay Khurana PW8 nowhere deposed about his visit to the spot from the hospital in the company of the police or about arrest of Ram Pathak and Prem Pal Singh in his presence by SI Ramesh Chander from the spot. It is not believable that even after the occurrence culprit would opt to remain present at the place of occurrence. PW7 Vikas Singh has not supported the case of prosecution regarding preparation of rough site plan or arrest of these two accused in his presence from the spot. According to PW7 Vikas Singh, on 10.7.2003 he saw Nilambar Jha, Ram Kumar Pathak and Prem Pal Singh with police of 26 P.S.Uttam Nagar in that police station. He did not state that these accused were seen by him at the spot and then apprehended. He categorically stated that these accused were not bought to the police station in his presence. He further stated to have put his signatures on the memos Ex.PW7/A, B and C at the police station at the time the police conducted proceedings regarding their arrest. This version narrated by Vikas Singh PW7 is in contradiction with the statement made by PW11 SI Ramesh Chander and belies the prosecution version regarding arrest of Ram Kumar Pathak and Prem Pal Singh from the spot. This also belies his version (of PW11) regarding preparation of rough site plan at the pointing out of Vikas Singh highly doubtful.
26. Case of prosecution is that Anil Kumar accused got recovered an iron rod i.e. the weapon used in commission of the crime. Anil Kumar accused was arrested on 27.7.2003. According to PW11, he made effort and as such recovered iron pipe from the residence of Anil Kumar in pursuance of disclosure statement made by him. Surprisingly, the disclosure statement Ex.PW11/K does not bear attestation of any witness from the public. Similarly, the recovery memo Ex.PW11/J does 27 not bear attestation of any witness from the public. There is nothing on record to suggest that the Investigating Officer associated or tried to associate anyone from the public before alleged recovery of iron pipe from the residential building. Thus, non compliance with provisions of Section 100(4)Cr.PC adversely affects the search and recovery of iron pipe. Consequently, prosecution cannot take any advantage from the recovery of iron pipe so as to connect Anil Kumar accused with the crime.
27. In view of the above discussion, this court comes to the conclusion that prosecution has miserably failed to substantiate the accusation leveled against the accused persons. Consequently, all the accused are acquitted of the charge framed against them. Case property be destroyed in accordance with rules on expiry of period for appeal or revision, if none is preferred, or subject to decision thereof. File be consigned to the record room.
Announced in Open Court Dated February 27, 2007 [ NARINDER KUMAR ] Additional Sessions Judge: Fast Track Court Rohini: Delhi 27-02-07 28