Delhi District Court
S.C. No. 63/10 Fir No. 94/10 State vs . Chandeshwar Thakur 1/38 on 7 September, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.63/10
(Unique I.D. No..02403R0164612010)
FIR No.94/10
PS: Malviya Nagar
U/S: 302 IPC
State
Vs
Chandeshwar Thakur
S/o Sh. Singheshwar Thakur
R/o Village and P.S
and Post Office, Jhanjar Pur, Purani Bazar,
District Madhubani, Bihar
Presently residing at : 221, Chirag Dilli,
New Delhi.
Date of Initial Institution :13.05.2010
Date of Institution in this Court :28.09.2010
Date of Pronouncement Order :07.09.2013
JUDGMENT
1. FIR No.94/10 was registered under Section 307 IPC on the statement of Akash wherein he stated that on 01.03.2010 at about 3:00 p.m., his Chacha Yashwant @ Tantia was playing Holi near his S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 1/38 shop. Pankaj invited all inside for offering them liquor. Akash was standing outside the gate and could see his Chacha inside who had already consumed liquor. He saw that the accused threw dirty water on Yashwant and there was an altercation. Yashwant told him not to quarrel but accused still quarreled with him and exhorted Yashwant to see him outside. Yashwant rebuked and chastised accused. Accused picked up a bottle, broke it and told Yashwant that he will not let him live alive. Accused then poked the bottle in the chest of Yashwant below shoulder. Yashwant started to bleed. Akash took him to shop and accused fled from the spot after causing injury to Yashwant with the bottle. Yashwant was then shifted to hospital by Akash, Sachin and Praveen. On 20.3.2010 at around 11.45 pm, the injured Yashwant died. Postmortem was carried out in which cause of death was opined to be 'septicemia consequent upon ante mortem injury as mentioned'. Although, earlier the case was registered under Section 307 IPC but since the victim died, it was changed to 302 IPC and the Final Report has been filed u/s 302 IPC.
2. Since the charge-sheet was filed under Section 302 IPC and the S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 2/38 said offence is triable by the court of Sessions, the matter was committed to this court.
3. Vide order dated 24.11.2011, a prima facie case under Section 304 Part II IPC was found against the accused and accordingly charge was framed against the accused under Section 304 Part II IPC, to which he pleaded not guilty and claimed trial.
4. Prosecution has examined 24 witnesses in support of its case. 4.1 PW-1 Sachin Rana deposed that he is a Jeweller and his shop is situated outside the place where the incident took place. He stated that on 01.03.2010, it was festival of Holi. At around 2:00 p.m, Akash came to him and told him that Brahma Yashwant Maney has received injuries. He alongwith Akash reached there and saw blood oozing from the injuries of Brahma Yashwant Maney and they took him to Akash Nursing Home and after first aid, they took him to Max Hospital and got the injured admitted there. Akash also told him that injured sustained injuries due to quarrel with Chandresh. He identified Chandresh in court. Police recorded his statement. In his cross-examination, he stated that he reached the spot at about 2:00 S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 3/38 p.m and his shop is situated at the distance of 10 paces from the spot. A lot of people were present there outside as well as inside the room of occurrence. He further stated that he was present there at the spot since 12:00 to 12:30 p.m as due to Holi festival, people were playing Holi. He also stated that people were playing Holi inside as well as outside the room of occurrence. When he reached the spot, he saw injured Brahma lying outside the house and Akash was standing nearby. He stated that Akash told him about the quarrel with Chandresh when they were going with the injured to Akash Hospital. He remained in Max Hospital for about 1:00-1:30 hours. Vilas, Praveen, Pankaj, Akash and Raju Maney also reached Max Hospital during that 1-1½ hours. Police did not record statement of any of these persons in Hospital in his presence. He stated that he knew Raju Maney for the last about 13-14 years and had good relations with him and he used to meet him daily.
4.2 PW-2 Dr. Shakti Mahapatra proved MLC No. 1327 of injured as Ex. PW2/A. He stated that on 10.03.2010 at 10:00 p.m, patient was unconscious and was intubated and put on ventilator. He S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 4/38 was not fit to give statement.
4.3 PW-3 Dr. Jitin Bhugra deposed on behalf of Dr. Sasha Javid, who had examined the patient in emergency of Max Hospital with alleged history of being found in an unconscious state in a pool of blood at about 2:15 p.m. Initially, the injured was taken to Akash Hospital and then he was brought to Max Hospital. There was cut lacerated wound on left maxilla with active bleeding from left axilla. He identified the signatures of Dr. Sasha Javid. In his cross- examination, he stated that he himself had not examined the wound and hence he could not tell as to how deep was the injury. He could not tell if the injury of axilla and maxilla were caused by fall on a sharp object or caused by stabbing from front side or back side. 4.4 PW-4 Ct. Ritesh Kumar deposed that on 03.03.2010, accused was taken to AIIMS Hospital for his medical examination. His blood sample was also taken in AIIMS Hospital. The seizure memo of blood sample was proved as Ex. PW4/A. S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 5/38 4.5 PW-5 Akash is the person on whose statement, the FIR was registered. He stated that on 01.03.2010 at about 3:00 p.m, a quarrel took place between Chandeshwar and his Chacha Brahma. He was with his Chacha. Chandeshwar had put dirty water on his Chacha. His Chacha told Chandeshwar that 'Ab Kha Pi Liya Hai, Jaao'. Thereafter, Pankaj called all in his house to serve them liquor. Chandeshwar, his Chacha Brahma, he himself and Sachin went inside the house of Pankaj. Chandeshwar started abusing his Chacha whereupon a quarrel took place between Chandeshwar and his Chacha. There was also a bottle of liquor in the room. Chandeshwar threatened his Chacha of being killed. Thereafter, Chandeshwar broke the liquor bottle and stabbed the same in left axilla of his Chacha. Thereafter, Chandeshwar ran away from the spot. His Chacha started bleeding. He, Sachin and another person took his Chacha to Akash Hospital. Thereafter, after admitting his Chacha in the hospital, he left to call Praveen. He and Praveen came back to Akash Hospital and on the advice of Akash Hospital, injured was shifted to Max Hospital. Police met him at Akash Hospital where his statement was recorded which he proved as Ex. PW5/A. On next day S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 6/38 i.e 02.03.2010, he alongwith Praveen and Inspector and 2-3 Police officials reached Ganda Naala, Chirag Dilli, between 4:00-5:00 p.m and police apprehended accused Chandeshwar, when he was coming from the side of Chirag Dilli. The arrest memo was proved as Ex. PW5/B. Personal search memo as Ex.PW5/C and the disclosure statement was proved as Ex. PW5/D. Accused led them to his house at Chirag Dilli from where he got recovered blood stained clothes i.e light yellow colour shirt, white pant and dark blue black pant and the same were converted into pullanda and seized vide seizure memo Ex. PW5/E. Leading questions were asked by the Ld. Addl. PP from the witness whereupon he stated that on the day of incident, he had also shown the place of occurrence to the police from where IO had seized broken glass pieces, earth control, earth blood stains, two plastic glasses, two liquor bottles - one empty and other had some liquor and the same were seized vide seizure memo Ex.PW5/F. Police also seized blood stained clothes of injured and his blood sample from the hospital on 01.03.2010 vide seizure memo Ex. PW5/G. On 02.03.2010, at the instance of the accused, IO prepared the pointing out-cum-occurrence memo as Ex.PW5/H. Injured died S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 7/38 after 19 days of the incident. He identified the case property in the court. However, it was observed by the court that the glass pieces which were produced were not pieces of glass bottles but looked to like pieces of some window pane as the pieces were of big size measuring 9 inches X 7.5 inches x 8.5 inches being triangular in shape. Other glass pieces were of smaller size but of same kind and glass pieces also of some brown colour stains on them. He identified one pant and an underwear (Ex. P-6 and P-7 respectively) to be belonging to his Chacha Brahma. He also identified one pant, vest and one shirt ( Ex. P-8, P-9 and P-10) to be belonging to accused Chandeshwar. In his cross-examination, he was confronted with his statement under Section PW5/A wherein it was not recorded that he had told the police that on 01.03.2010, it was Holi festival and at around 3:00 p.m, a quarrel took place between Chandeshwar and his Chacha Brahma. Similarly, it was not found in his statement Ex.PW5/A that Chandeshwar, his Chacha, he himself and Sachin went inside the house of Pankaj. He stated that he did not tell the police that all other persons went inside and he remained standing outside the gate but he was confronted with his statement Ex. PW5/A S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 8/38 wherein it was so recorded. He stated that neither Raju Maney nor Praveen were present when they went in the house of Pankaj. He stated that lot of persons had assembled, who were playing Holi near the shop of his Chacha. He stated that lot of person, who were playing Holi outside, went inside the house of Pankaj at about 2:00-2:30 p.m. He could not tell as to which of the version was correct - he had stated to the police that he was standing outside the gate whereas in the court he stated that he was inside the room. He could not tell if some broken bottles were lying at the spot as he had become purported after seeing his Chacha in blood. He could not tell if any broken bottle was lifted from the spot by the police. He was confronted with the statement Ex.PW5/A wherein tiw as not recorded that after getting his Chacha admitted in the hospital, he left to call Praveen. He had gone to call Praveen from Akash Hospital but he could not tell the time when he left nor he could not tell the time when he and Praveen came back to Akash Hospital. It was stated that when he left Akash Hospital, Sachin and Pankaj were present in the hospital and when they came back, Sachin, Pankaj and another customer Akshay were found present in the hospital. He could not S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 9/38 tell if police came in Akash Hospital or not. He stated that police had not recorded his statement in Akash Hospital. He stated that the police did not visit in Akash Hospital. His Chacha remained in Akash Hospital for about 15 minutes. He stated that it took him about 15 minutes to call Praveen. He further stated that he did not take his Chacha to Max Hospital. Police recorded his statement in front of their shop on 01.03.2010 but he could not tell the time when his statement was recorded. He could not tell as to how many times his statement was recorded by the police nor could he tell, if statement of any other witness was recorded by the police when his statement was recorded. He further stated that after 01.03.2010, he visited PS only once but he did not tell the date but stated that perhaps it was on 02.03.2010. He had gone to the PS alongwith the police personnel from Max Hospital. He could not tell if he had gone alone with police or he was accompanied by somebody else also. They started from Max Hospital after 8:00 p.m and reached PS and before leaving Max Hospital, he was in Max Hospital entire day. He stated that he remained in the PS for above ½ an hour and thereafter he returned back to the Max Hospital.
S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 10/38 4.6 PW-6 Ct. Raj Kumar deposed about depositing 5 sealed pullandas with FSL, Rohini on 16.04.2010. In his cross-examination, he denied the suggestion of tempering.
4.7 PW-7 Praveen deposed that on 01.03.2010 at about 3:30 p.m, he was playing Holi at T-Blcok , Khirki Extension, Akash came there and told that his Jija Tantia has been hit with a bottle. He alongwith Sachin and Akash took Tantia to Max Hospital. Thereafter, police came in Max Hospital. When they were taking Tantia to Max Hospital in a vehicle, Tantia told him that he was hit by bottle by Chandeshwar. He was bleeding from his right arm pit. In his cross- examination, he stated that his statement was recorded by the police on 01.03.2010 in Max Hospital in evening hours but he could not tell the exact time. He stated that he had not told to the police in his statement that Tantia had told him about his assault with bottle by Chandeshwar. Police attempted to take statement of Tantia in his presence but Doctor opined that he was not fit to make statement. S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 11/38 Police came in Max Hospital on 2-3 occasions but he was not fit to make statement.
4.8 PW-8 Subhash Maney proved identification of dead body of Brahma Yashwant Maney as Ex.PW8/A. 4.9 PW-9 Ct. Sharan Dutt deposed that on 01.03.2010 at about 2:00-2:30 p.m, ASI Gopi Chand received a call regarding a quarrel at Khirki Extension. They both reached there and found pieces of glass scattered there, one stool was also found there, on which pieces of glass were lying. They reached Max Hospital and Inspector Dhiraj Narang also reached there. One injured, namely, Brahma was found admitted in the hospital. IO/ASI Gopi Chand obtained MLC of injured and sealed his blood stained clothes vide seizure memo Ex.PW5/G. IO prepared Rukka and the same was handed over to him for registration of FIR. He handed over Rukka to the Duty Officer for registration of FIR. On 01.03.2010, in the evening, he went alongwith the IO in search of accused but he could not be found. He could not remember name of the accused. The witness was cross-examined by the Ld. Addl. Pp as he resiled from his earlier S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 12/38 statement. In his cross-examination by the Ld. Addl.PP, he denied the suggestion that he had handed over the copy of the FIR with original Rukka to the IO in Max Hospital. He could not tell the meaning of Tehrir and Rukka. He could not recall if his statement was recorded by Inspector Dhiraj Narang on 02.03.2010. He admitted that one accused was arrested in his presence but he could not identify him. He stated that accused was seen by him many times but he could not tell if he was the same person or not. He denied the suggestion that on 02.03.2010, accused was arrested. He denied the suggestion that disclosure statement of the accused was written in his presence or accused got recovered his blood stained clothes or he pointed out the place of occurrence. He, however, identified his signatures on arrest memo Ex.PW5/B, personal search memo Ex. PW5/C, disclosure statement of accused Ex. PW5/D, pointing out- cum-seizure memo of clothes of the accused Ex. PW5/E, pointing out memo of place of occurrence Ex. PW5/H. He stated that he did not join the investigation on 03.03.2010. He denied the suggestion that Ct. Ritesh, Inspector Dhiraj Narang and he himself had gone to the AIIMS Hospital for getting the medical examination of the accused S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 13/38 conducted and to preserve his blood sample from the AIIMS Hospital. He also denied the suggestion that Dr. Kamlesh Kumar had conducted the medical examination or accused's blood sample was taken. However, he identified his signatures on seizure memo of blood in gauze Ex. PW4/A. In his cross-examination on behalf of accused, he could not tell as to when the figure mentioned in column No.6 of Ex.PW5/B i.e arrest memo were altered from 1 to 2 in date and 4 to 5 in time of arrest.
4.10 PW-10 Dr. Gagan Pal Singh deposed that on 20.03.2010, Brahma Yashwant Maney was on ventilator and was in critical condition and was not able to give statement on that day. He proved his signatures on his MLC Ex. PW2/A at point 'C'.
4.11 PW-11 HC Pappu Ram is the Duty Officer, who proved recording of DD No.21A at 3:40 p.m on 01.03.2010 regarding receipt of information from Max hospital about admission of injured Brahma Yashwant Maney. He proved DD No. 21A as Ex.PW11/A. He further stated that at 5:30 p.m, he registered FRI No. 94/10 under S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 14/38 Section 307 IPC as Ex.PW11/B on receipt of Rukka from Ct. Sharan Dutt which was sent by ASI Gopi Chand. In his cross-examination, he stated that as per DD No. 21A dated 01.03.2010, the message was that injured had fallen from the roof and hit by bottle and had been admitted in Max Hospital. He further stated that he had handed over the copy of the FIR and Rukka to Ct. Sharan Dutt at about 5:30 p.m. 4.12 PW-12 Bandu Yashwant Maney deposed that on 01.03.2010, he got admitted injured Brahma Yashwant Maney in Max Hospital in injured condition. On 20.03.2010 during treatment, he expired in Max Hospital. He received dead body of his brother after postmortem at AIIMS Mortuary on 22.03.2010 and proved his identification statement as Ex. PW12/A. In his cross-examination, he stated that when he reached Max Hospital at about 3:30 p.m on 01.03.2010, injured Brahma Yashwant Maney was already present in the hospital and he got him admitted. Akash, Praveen and police personnel were also present in the hospital when he reached there. Police did not record the statement of any of these persons in his presence.
S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 15/38 4.13 PW-13 Ct. Hemant Kumar proved seizure memo of seizure of one envelope containing blood in gauze of deceased and one sample seal of the hospital on 22.03.2010 as Ex.PW13/A. 4.14. PW-14 Ct. Anand is the Photographer of the Mobile Crime Team. He stated that on 01.03.2010, he alongwith Crime Team reached the spot and clicked 12 photographs of the spot from different angles. He proved the photographs as Ex. PW14/P-1 to P-12 and the negatives were proved as Ex. PW14/P-13 to P-24. In his cross-examination, he stated that the premises number of the house is not depicted in the photographs produced by him nor any inhabitant to the house was shown in the photographs. He stated that he reached the spot at about 7:15 p.m and remained there for about ½ an hour. He could not tell if Incharge Crime Team had advised the IO to lift fingerprints of the articles lying there. He did not notice if any public person was present in the said premises or not. 4.15 PW-15 SI Mahesh Kumar is the Draftsman, who stated that S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 16/38 on 26.04.2010, he took rough notes and measurement at the instance of Akash and Inspector Dhiraj Narang and on the basis of the rough notes and measurement, he prepared scaled site plan which he proved as Ex. PW15/A. He stated that due to typographical error in the scaled site plan Ex. PW15/A, the actual date 26.04.10 was wrongly mentioned as 26.10.04. In his cross-examination, he stated that he reached the spot at about 4:00 p.m. Akash was called by the IO and he reached there immediately. No inhabitant of that room was found present when he reached there to prepare the site plan. 4.16 PW-16 Dr. Deepak Kumar stated on the same lines as deposed by PW-2 Dr. Shakti Mahapatra that the injured was on ventilator from 02.03.2010 to 13.03.2010 and was not fit for statement.
4.17 PW-17 Dr. Kamlesh Kumar deposed that on 03.03.2010, he had examined the accused vide MLC No. 14795 which he proved as Ex. PW17/A. Abrasions of different size were found on his right hand. In his cross-examination, he stated that he did not mention age S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 17/38 of the injuries in the MLC Ex. PW17/A. He stated that those injuries could not be one week old. He further stated that only abrasions were found on right hand palm and no incised wounds. 4.18 PW-18 SI Gopi Chand deposed that on 01.03.2010, he received a DD No. 21a at 3:40 p.m through Ct. Surender regarding falling of one Brahma Yashwant Mane from roof and sustaining injury due to a bottle. He reached MAX Hospital alongwith the Ct. Saran Dutt and obtained MLC of injured, who was declared unfit for statement. On routine inquiries, Akash Mane met him in the hospital. He recorded his statement as Ex. PW5/A. On his statement, he prepared Rukka Ex. PW18/A for registration of a case under Section 307 IPC and handed over the same to Ct. Saran Dutt at 5:15 p.m for registration of FIR. He alongwith complainant Akash Mane reached at the spot i.e T-1/3, Koot Sarai, near Akash Hospital, Malviya Nagar, New Delhi. He also informed the Crime Team. He inspected the spot at the instance of the complainant and prepared site plan at his instance which he proved as Ex.PW18/B. Crime Team reached the spot and got it photographed. Ct. Saran Dutt returned at the spot alongwith the copy of the FIR and original Rukka. In the presence of S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 18/38 the witnesses, he seized two bottles, out of which one was having small quantity of liquor, two plastic glasses, broken pieces of glass of showcase, earth mixed blood stains and earth control from the spot and kept the same in two separate plastic dibbies and were converted into cotton pullanda and duly sealed them with the seal of 'GCN' and seized them vide seizure memo Ex. PW5/F. Crime Team Incharge handed him over scene of Crime Team. He recorded the statement of Crime Team Incharge as well as of the Photographer. He also recorded the statement of Sachin and Praveen, who had taken the injured to the hospital. Thereafter, he alongwith the Ct. Saran Dutt and complainant went to Max Hospital and from there he seized two sealed pullandas which contained blood stained clothes of the deceased and sample seal of the hospital vide seizure Ex. PW5/G. The case property was deposited in the Malkhana after the accused Chandresh was searched for. He further stated that on 02.03.2010, further investigation of the case was handed over to Inspector Dhiraj Narang. On the same day, he alongwith Ct. Saran Dutt, Akash Mane made efforts to arrest the accused and at about 5:00 p.m, they arrested accused Chandresh from Ganda Naala, Chirag Dilli. Accused was S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 19/38 arrested vide arrest memo Ex. PW5/B and his disclosure statement was recorded as Ex. PW5/D. At the instance of the accused, pointing out memo of the place of occurrence was prepared which was proved as Ex.PW5/H. Thereafter, accused got recovered the clothes which he was wearing at the time of committing the crime, from his house. The clothes were kept in a polythene and were converted into a cloth pullanda and they were sealed with the seal of 'DN' and were seized vide seizure memo Ex. PW5/E. He identified the accused in the court as also the case property. In his cross-examination, he admitted that DD No.21A Ex.PW11/A was with regard to falling of Brahma Yashwant Mane from roof and sustaining injuries by a bottle. He stated that he went to Max Hospital as the information was received from there. He reached Max Hospital at about 4:00 p.m but the eye- witness or the complainant was not found there nor any other witness was present. He recorded the statement of the complainant in the Max Hospital at about 4:15/4:20 p.m. No other public witness was found present at the spot when he reached there alongwith the complainant. Door of the room in question was not locked and nobody was there inside the room when he reached the spot. No S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 20/38 police official was deputed there to preserve the spot. The glass of showcase kept in the room was found broken and lying on the floor. He did not find any broken piece of glass bottle at the spot. He could not tell when IO received information regarding the accused from the secret informer. When they left PS for arrest of the accused, complainant was with him but he could not tell the time when the complainant had come in the PS. He saw the informer for first time near Ganda Naala, Chirag Dilli. They remained at the place of arrest for about 45 minutes. They reached the house of the accused after 6:00 p.m. There were some persons present in the house when the police personnel reached there, all of them dispersed. Door of the room of the house of the accused was not locked. After completion of the proceedings, they came back from there leaving the room open.
4.19 Dr. Kumud Rai proved the death summary of the deceased Brahma Yashwant Mane as Ex. PW19/A. According to which, he was admitted in Max Hospital on 01.03.2010 and expired on 20.03.2010 at 11:05 p.m. S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 21/38 4.20 PW-20 Dr. Manish Goyal deposed regarding conducting postmortem on the body of deceased on 22.03.2010 which he proved as Ex.PW20/A. In his cross-examination, he stated that weapon of offence was not produced before him either at the time of the conducting the postmortem or subsequently.
4.21 SI Vijay Pal Singh Kasana is the Incharge Crime Team, who stated that on 01.03.2010, he alongwith HC Raj Kumar and Ct. Anand reached the place of occurrence where ASI Gopi Chand met him. He inspected the scene of crime and prepared his report as Ex.PW21/A . Ct. Anand took photographs of the spot from different angles. In his cross-examination, he stated that Fingerprint Proficient HC Raj Kumar tried to lift the chance prints from the spot but no such fingerprints could be traced.
4.22 PW-22 SI Pankaj Thakran collected the postmortem report on 01.04.2010 from AIIMS Hospital and he handed over the same to Inspector Dhiraj Narang.
S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 22/38 4.23 PW-23 Dr. Aditya Baloria of Max Hospital stated that on 07.03.2010, he had examined Brahma Yashwant Mane at 21:12 hours and at that time the patient was unfit for statement and he was in Cardio Thorasic Vascular Surgery, ICU.
4.24 PW-24 Inspector Dheeraj Narang deposed that on 02.03.2010, he received present case file for the investigation. He alongwith ASI Gopi Chand, Ct. Saran Dutt and complainant Akash had gone for the search of the accused. At about 2:00-2:30 p.m while they were present near the house at 221, Chirag Dilli, New Delhi, he received a secret information from the secret informer that accused Chandresh would come to his house for taking his belongings and money and he is absconding from his native place. At about 4:00-5:00 p.m, at the point out of the secret informer , accused was apprehended while he was crossing the said Ganda Naala and was going towards Chirag Dilli. After inquiries, accused confessed his involvement in the present case. He was arrested vide arrest memo Ex. PW5/B and his disclosure statement was proved as Ex. PW5/D. Thereafter, he took them to his house No. 221 and got recovered his S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 23/38 clothes from a plastic basket in the room. The clothes were seized vide seizure memo Ex.PW5/E. He prepared pointing out memo of the place of occurrence at the instance of the accused as Ex. PW5/H. He obtained documents relating to the deceased from Max Hospital and got the postmortem conducted at AIIMS Mortuary. He got collected the postmortem report. On 16.04.2010, exhibits were sent to FSL, Rohini through Ct. Raj Kumar. On 26.04.2010, he got the spot inspected by SI Mahesh - Draftsman and on 04.05.2010, he received scaled site plan from SI Mahesh. He filed FSL result in the court on 04.03.2010 as Ex. PW24/B. In his cross-examination, he stated that on 06.03.2010, he reached Police Station Malviya Nagar at about 9:00 a.m and complainant Akash with him. On that day, complainant was called by him in the PS to join the investigation. The secret informer started with him from the PS but in between he left his company. He remained at the spot of arrest for about 45 minutes and requested public persons to join the investigation but none agreed. He stated that in the arrest memo Ex.PW5/B, there is no overwriting in column No. 6 on the point of date of arrest and time of arrest. He found nobody present at the house of the accused. He S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 24/38 reached there and the room of the house was bolted by a Kundi and it was not locked. He asked 2-3 persons to join the investigation but none agreed. He did not seize the bucket from which the alleged clothes were recovered. He could not tell the time when Akash Mane left PS on 02.03.2010. He denied the suggestion that accused was apprehended on 01.03.2010 and was made to sit in the PS.
5. All the incriminating circumstances were put to the accused but he denied his involvement in the offence and stated that he has been falsely implicated in this case. He stated that he was apprehended by police on 1.3.2010 and was made to sit in the police station and was shown to be arrested on 2.3.2010. Regarding on his person, he stated that a day prior to holi he had slipped in the bathroom and received injuries on his person. He further stated that on the day of festival, he went to meet his brother Chandan and to play holi near Akash Hospital. After sometime, he felt pain in his injuries which he had received on the previous day and he left from there and came back to his house. However, no defence evidence was led by him.
S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 25/38
6. Ld. Addl. PP has argued that the prosecution has been able to prove its case. He argued that PW-5 and PW-7 are the main witnesses of the prosecution and their deposition proves that the accused attacked the deceased and gave fatal blows to him, due to which he lost his life. The accused also sustained injuries on his hand which he sustained while attacking the deceased. He stated that the accused was arrested and he also got recovered his blood stained clothes from his house which he was wearing at the time of the offence. He further argued that the accused did not bring any defence evidence, which he ought to have brought if his defence was that he was not even present at the spot at the time of the offence or that he had sustained injury on his hand while slipping in bathroom. Prosecution prayed for conviction of the accused.
7. Ld. Counsel for the accused, on the other hand, has stated that this case was registered on 1.3.2010 on the statement of nephew of the deceased. Ld. Counsel stated that DD No. 21 A was received S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 26/38 regarding fall of a person from roof and he struck with a bottle. Ld. Counsel argued that this DD has belied the prosecution story that accused hit the victim with a bottle. He stated that deposition of PW-1 and PW-5 who are eye witnesses of the prosecution, also does not support the prosecution. It has been argued that the prosecution has failed to prove the place of offence and the weapon by which the offence was committed. There is no recovery of the broken bottle by which the deceased was killed although some broken pieces of glass panes were produced before this Court. He stated that it is not the case of prosecution that the weapon of offence was a glass of window pane. It was argued that blood stained clothes of the accused have been seized but even the FSL result is in favour of the accused in as much as there is nothing against the accused in the said report. Ld. Counsel has thus prayed for acquittal of the accused.
8. I have heard both the sides and have perused the records of the case. Prosecution has examined two witnesses as eye witnesses namely PW-5 Akash and PW-7 Praveen. To recap, he had stated that he, Chandeshwar, victim and Sachin went inside the house of Pankaj S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 27/38 wherein a quarrel broke between the accused and victim and accused, after breaking a liquor bottle, stabbed the same in left axilla of victim. So names of four persons have been given - one is the complainant himself and two are accused and deceased. Fourth one is Pankaj, but this Pankaj has not been examined by the prosecution. The incident in question is stated to have taken place inside the room of this Pankaj according to the deposition of PW-5 Akash and hence he was an important witness for the prosecution to have been examined. It was Pankaj who could have deposed as to what had happened in his room and how the incident took place. His non- examination is an important circumstance against the prosecution.
9. The time of the alleged incident and the incident in itself is doubtful. DD No. 21A dated 01.03.2010, was recorded at 3.40 pm to the effect that injured had fallen from the roof and hit by bottle and had been admitted in Max Hospital. This DD was proved to have been recorded by PW-11 HC Pappu Ram. It was on this DD entry that this case was initiated. However, witnesses have given different timings, apart from describing it differently. PW-1 Sachin Rana S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 28/38 deposed that he is a Jeweller and his shop is situated outside the place where the incident took place. He stated that on 01.03.2010, it was festival of Holi. At around 2:00 p.m, Akash came to him and told him that Brahma Yashwant Maney has received injuries. He alongwith Akash reached there and saw blood oozing from the injuries of Brahma Yashwant Maney. So, according to this witness Akash came to him at about 2 pm and told him that Brahma had received injuries. PW-5 Akash stated that on 01.03.2010 at about 3:00 p.m, a quarrel took place between Chandeshwar and his Chacha Brahma. Chandeshwar broke the liquor bottle and stabbed the same in left axilla of his Chacha. Thereafter, Chandeshwar ran away from the spot. According to MLC of the injured/deceased he was examined in Max Hospital on 1.3.2010 at 2.45 PM vide Ex. PW-2/A. There is thus a contradiction in the time of the incident in as much as whereas Sachin had given the timing of assault to be before 2 pm, MLC was prepared at 2.45 pm, Akash gave this timing of quarrel to be of 3 pm. It is thus not clear as to when the incident in question took place which was very very vital for the prosecution to have established, but which could not be done.
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10. The next doubt is with regard to the weapon of offence. According to PW-5 Akash, accused picked up a liquor bottle, broke it and stabbed it in the left axilla of the injured. However, no such broken liquor bottle was produced before the Court. PW-18 SI Gopi Chand who had visited the spot, stated that he did not find any broken glass bottle at the spot. He has also stated that the spot was not guarded. What was produced in the Court was a plain glass of big size measuring 9 X 7.5 x 8.5 inches size of triangular shape. The prosecution has thus failed to prove that the accused had used liquor bottle to attack the deceased.
11. Place of offence has also not been emphatically proved by the prosecution. PW-1 Sachin stated that his shop is situated outside the place where the incident took place. PW-5 Akash stated that accused Chandeshwar, his Chacha Brahma, he himself and Sachin went inside the house of Pankaj. This portion of the statement of Akash was found to be an improvement as it was not mentioned in his statement S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 30/38 recorded earlier by police. Although Akash claimed that the attack was done by the accused inside house of Pankaj and Sachin was also present with him in that room of Pankaj, but Sachin has not stated that the incident took place inside the house of Pankaj. Prosecution has not examined this Pankaj. There is nothing else on record which could show that the incident in question took place inside the house of Pankaj. PW-14 Ct. Anand stated that premises number of the house is not depicted in the photographs produced by him nor any inhabitant to the house was shown in the photographs. There is thus no cogent evidence as to where the incident in question took place.
12. There is no clarity regarding the place where the injured was found lying. PW-1 Sachin stated in his cross-examination that when he reached the spot, he saw injured Brahma lying outside the house and Akash was standing nearby. There is no explanation as to how injured Brahma came out of the house, if he was attacked inside the house.
13. Place of recording of statement of complainant Akash is S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 31/38 also under cloud. In his examination in chief, PW-5 Akash stated that police met him in Akash Hospital and recorded his statement, which he had proved as Ex. PW-5/A and on this statement FIR was recorded. However, in his cross-examination he stated that police did not record his statement in Akash Hospital. He rather stated that police recorded his statement on 1.3.2010 in front of his shop and he could not tell the time when his statement was recorded. In contrast, PW-9 Ct. Sharan Dutt stated that he alongwith ASI Gopi Chand, reached Max Hospital where rukka was prepared and handed over to him. PW-18 SI Gopi Chand also stated that Akash met him in Max Hospital where he recorded his statement Ex. PW-5/A on which he prepared rukka. There are thus different versions regarding the place where the statement of the complainant Akash was recorded - once he stated that it was recorded in Akash Hospital, then he stated that it was recorded in front of his shop whereas PW-9 Ct. Sharan Dutt and PW-18 SI Gopi Chand claimed that it was recorded in Max Hospital. Thus, the place where statement of complainant Akash was recorded has not been clarified by the prosecution.
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14. Arrest of the accused is another aspect which could not be demonstrated by the prosecution beyond reasonable doubt. Arrest memo of the accused was proved by the prosecution as Ex. PW-5/B. This Memo was prepared by PW-24 Insp. Dheeraj Narang. It also bears signatures of PW-18 ASI Gopi Chand, PW-9 Ct. Sharan Dutt and PW-5 Akash as witnesses. There are however over-writings in date and time of arrest in column No. 5 of this Memo. Date of arrest has been mentioned as 2.3.10 and time 5.00 pm. However, it appears that 1.3.10 has been changed to 2.3.10 and time 4.00 pm has been changed to 5.00 pm. Apart from these over-writings, even otherwise there is doubt over arrest. PW-5 Akash in his cross-examination stated that on 2.3.2010 they started from Max Hospital after 8:00 p.m and reached PS and before leaving Max Hospital, he was in Max Hospital entire day. He stated that he remained in the PS for above ½ an hour and thereafter he returned back to the Max Hospital. His deposition gives an impression that on 2.3.2010 Akash was in the Max Hospital the entire day and had gone to Police Station after 8 pm and remained only in police station for about half an hour. If that is so, then how and in what circumstances his signatures appeared on S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 33/38 the arrest memo of the accused. Not only this, PW-9 Ct. Sharan Dutt also could not prove the arrest of the accused though he was declared hostile and was cross examined by the prosecutor on this count. Over-writings in date and time of arrest, coupled with depositions of PW-5 Akash and PW-9 Ct. Sharan Dutt cast doubt over arrest of the accused.
15. Similar is the status of recovery of Clothes of the accused. Seizure memo of clothes is dt. 2.3.2010 and is Ex. PW-5/E. This Memo was prepared by PW-24 Insp. Dheeraj Narang and bears signatures of PW-5 Akash and PW-9 Ct. Sharan Dutt as witnesses. Name of ASI Gopi Chand is also mentioned on this memo but his signatures do not appear on this memo although as PW-18 he claimed that clothes were got recovered by the accused in his presence. If he was present at the time when accused got recovered the clothes, there is no reason why his signatures would not appear on this seizure memo. It means that ASI Gopi Chand was not present when the recovery of clothes was effected. PW-9 Ct. Sharan Dutt did not support prosecution that there was any such recovery in his presence S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 34/38 although he identified his signatures on the seizure Memo Ex. PW-5/E.. PW-5 Akash in his cross-examination stated that on 2.3.2010 entire day he was in Max Hospital and after 8 pm he had gone for half an hour to Police Station. There is thus doubt over recovery of the clothes as well.
16. One witness PW-7 Praveen was examined by the prosecution who stated that when he was going with the injured, Sachin and Akash in ambulance to Max Hospital, injured told him that accused had hit him with a bottle. This statement is in the nature of dying declaration and let us test deposition of PW-7 Praveen in this regard. When he was cross examined he stated that he did not tell this aspect to police when his statement was recorded. As such, this part of his statement is an improvement. There is no explanation as to why it was not mentioned to police at the time of recording of his statement. If the injured had told him about his assailant, it was incumbent upon him to have told about it to police at the earliest opportunity. However, that was not done by the witness, for the reasons best known to him. Apart from it, he also stated that injured was not fit to S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 35/38 make any statement to police although attempts were made in this regard. PW-16 Dr Deepak Kumar examined the injured on 2.3.2010 and 13.10.2010, PW-23 Dr. Aditya Baloria examined him on 7.3.2010, PW-2 Dr Shakti Mahapatra examined the injured on 10.3.2010 and PW-10 Dr. Gagan Pal Singh examined him on 20.3.2010 and all of them stated that the patient was not able to make any statement. He died on 20.3.2010. It is to be seen if the injured who was continuously declared 'not fit' to make statement from 1.3.2010 to 20.3.2010 could have made such a statement to this witness. A perusal of MLC of the injured Ex. PW-2/A shows that the patient was found in 'unconcious condition' in a pool of blood at about 2.15 pm at his residence. Now, if the injured was found in unconcious condition, when he gained consciousness so as to tell the name of his assailant to this witness. Moreover, PW-1 Sachin did not make any such statement that Praveen was also present when he and Akash took injured to Max Hospital and enroute injured told that he was assaulted by the accused. Interestingly, in his cross-examination, PW-5 Akash - complainant stated that he did not take his chacha (injured/deceased) to Max hospital. There are thus marked S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 36/38 contradictions in the depositions of the witnesses. As such, reliance cannot be placed on the statement of PW-7 Praveen that a sort of dying declaration was made by the injured regarding the accused to be responsible for his injuries, which culminated in his death.
17. If the entire evidence, which was led on behalf of the prosecution, is sifted it is found that there is nothing on record with which the accused can be connected to the present offence and that too beyond reasonable doubt. It is cardinal principle of Criminal Jurisprudence that suspicion howsoever, strong it may be, cannot take the place of proof. It is also trite that it is the bounden duty of the prosecution to prove its case beyond all reasonable doubts. It is equally settled that each accused is presumed to be innocent till he is proved guilty beyond reasonable doubt by the prosecution. The argument that no defence evidence was led by the accused which shows his complicity, cannot be accepted as it is for the prosecution to first discharge its burden beyond reasonable doubt that it was only the accused who committed the offence in question and none else. Unless the prosecution discharges this burden, accused is not required to bring in his defence. Since the prosecution has not been able to S.C. No. 63/10 FIR No. 94/10 State vs. Chandeshwar Thakur 37/38 discharge its burden of proving its case beyond all reasonable doubts against the accused, the benefit has to go to the accused. This court has thus no option but to give the benefit of doubt to the accused. For all the aforesaid reasons, the accused is entitled to be given the benefit of doubt and is hereby acquitted.
Announced in the open Court. (Rajeev Bansal)
Dated:07.09.2013 ASJ-3/South District
Saket Courts, New Delhi
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