Delhi District Court
State vs 1) Pankaj Kumar S/O Lallan Kumar on 21 September, 2010
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IN THE COURT OF SH. DHARMESH SHARMA,
ASJII, NORTH, DELHI.
SESSIONS CASE NO: 70/2009
Computer I. D. No. 02401R0493642009
FIR No: 96/09
P.S. Anand Prabat
U/S:302/392/397/34 IPC
DATE OF INSTITUTION: 05.10.2009
DATE ON WHICH ARGUMENTS HEARD
AND JUDGMENT RESERVED : 17.09.2010
DATE ON WHICH JUDGMENT DELIVERED: 21.09.2010
STATE Vs 1) Pankaj Kumar S/o Lallan Kumar
Village Mundarva Distt. Basti UP
Presently : H. NO. 288/3, Gali No. 8,
Nehru Nagar, Anand Parbat, Delhi
2) Raju S/o Netar Pal Singh
R/o Village Bilrm Ps Dona
Distt. Kashi Ram Nagar, UP
Presently : H. no. 258D, Gali no. 7,
Nehru Nagar, Anand Parbat, Delhi
3) Bhola S/o Chalitar Sahni
R/o Village Arer PO Bhispi
PS Madhubani Distt. Madhubani,
Bihar.
Presently : Jhuggi Fish Market
Nehru Nagar, Anand Parbat, Delhi
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4) Inderjeet @ Ghuska S/o Gagan Nath
R/o Village Arer PO Bhispi
PS Madhubani Distt. Madhubani,
Bihar.
Presently : Jhuggi Fish Market
Nehru Nagar, Anand Parbat, Delhi
APPEARANCE:
Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor for the
State
Mr. V. K. Jha, Advocate for the accused Bhola and Inderjeet
@ Ghuska
Mr. Rakesh Raj Murti, Advocate for the accused Pankaj
Kumar and Raju
21 .09. 2010
JUDGMENT:
1. Accused persons namely Pankaj Kumar S/o Lallan Kumar, Raju S/o Netar Pal Singh, Bhola S/o Chalitar Sahni and Inderjeet @ Ghuska S/o Jagan Nath have been arraigned for trial by the prosecution on the allegations that they in furtherance of their common intention gave stab injuries to Balvinder Singh with a view to commit his murder and robbed him of his money and a mobile set make Nokia 1200.
2. The case of the prosecution is that on 23.06.2009 DD No. 8 A Ex.PW 19/A was recorded at about 7:05 a.m in the morning through a wireless message from the Police Control Room that a dead body was lying in Gali No. 10, Prem Nagar Road near 3 Panchsheel Mandir, Anand Prabat, Delhi. The investigation was entrusted to SI Dharampal (PW19) who reached the place of occurrence along with Ct. Rati Ram (PW12) and found dead body of a male 3035 years of age who was wearing half sleeves blue colour banyan and an underwear and there was a cut mark on the right side of the banyan who was also wearing a Parna (a cloth piece tied to his belly) which was blood stained. One Sawinder (PW3) identified the deceased as driver of TATA Canter no. PB 11AG 8183 and disclosed that he alongwith the deceased driver had travelled in the said Canter from Village Randhwa, PS Samana Distt. Patiala, Punjab and had reached Delhi at 1:30a.m. The Mobile Crime Team was called to the spot and the rukka Ex.PW 19/B was written and the present FIR Ex.PW 23/A was got recorded at 9:25a.m. The investigation was taken over by the SHO Inspector Dinesh Kumar (PW26). No eye witnesses were found at the spot and the dead body was sent to Mortuary, MAMC Hospital where it was identified by Channa Ram (PW2) brother of the deceased and also by PW8 Mansa Ram (PW8) cousin brother of the deceased. The postmortem on the body of the deceased was conducted.
3. The police had a break through on 07.07.2009 when one Gopi S/o Kishan (PW21) came to the Police Station alongwith his brother Manoj (PW1) and informed the police that the truck driver 4 was killed on 23.06.2009 by accused persons namely Pankaj, Raju, Inderjeet @ Ghuska and Bhola and it was the accused Pankaj who had taken a knife from Gopi, who had made an extra judicial confession to him.
4. The prosecution case is that on 09.07.2009 accused Pankaj was arrested and whose interrogation accused Raju was arrested who was found wearing a wrist watch Ex.P4 of the deceased and on their disclosure accused Bhola was arrested who was found using mobile set Ex.P3 of the deceased and then it was the turn of the accused Inderjeet @ Ghuska who on interrogation got recovered a Churi Ex. P2 used in the commission of crime from the Fish Market, Anand Prabat, Delhi. After completion of the investigation, charge sheet was filed against the accused persons. CHARGE
5. Needless to state that accused persons namely Pankaj Kumar S/o Lallan Kumar, Raju S/o Netar Pal Singh, Bhola S/o Chalitar Sahni and Inderjeet @ Ghuska S/o Jagan Nath were charged u/s 302/34 of IPC for committing murder of the deceased Balvinder Singh and they were also charged for committing robbery u/s 392/34 of IPC besides Section 397/34 of IPC. All the accused persons pleaded not guilty and claimed trial. 5 Prosecution Evidence
6. The prosecution in order to prove its case examined as many as 28 witnesses. The Public witnesses for the prosecution were PW1 Manoj and PW21 Gopi who unfortunate for the prosecution case did not support its case. PW2 was Channa Ram and PW8 Mansa Ram who identified the dead body of the deceased, PW3 was Sawinder who was conductor / helper in the Tata canter no.PB 11AG 8183; PW 4 was Anil Kumar. He deposed that his servant Bhola Kumar obtained a mobile connection no. 9953825821 on his ID proof; PW5 was Bhola Kumar and PW 20 was Babloo Kumar who also turned hostile and did not support the prosecution case.
7. In the category of medical witnesses Dr. Amit Sharma from MAMC, Delhi was examined as PW7 who conducted the postmortem on the body of the deceased and proved his report Ex.PW 7/A besides his opinion regarding the stab wound inflicted with the said Churi E.xP2 which is Ex.PW 7/B.
8. PW9 was Mr. Anuj Bhatia, Nodal Officer from Vodafone Mobile Services Ltd. who proved call records in respect of mobile connection nos. 9953825821 and 9953874954; PW10 was Ajay Kumar, Asstt. Nodal Officer from Bharti Airtel Ltd. who proved call 6 records in regard to mobile no. 9779467578 which was in use of the deceased. The prosecution case is that same mobile set was used on above said two numbers by accused Bhola.
9. The rest of the witnesses were police witnesses . PW 11 was Ct. Deepak. He was associated in the investigation with the IO Inspector Dinesh Kumar; PW 12 was Ct. Rati Ram who was associated in the investigation; PW 13 was SI Anoop Kumar. He was associated during the arrest of the accused Pankaj Kumar and Raju and participated in the investigation; PW14 was Ct. Sansbir Tomer who was associated during the arrest of the accused Pankaj and Raju besides going to Ballabhgarh for arrest of accused Bhola and Inderjeet @ Ghuska on 09.07.2009; PW 15 was Ct. Jagdish who took exhibits from MHC(M) to FSL Rohini ; PW 16 was ASI Zora Singh who caused the arrest of the accused Bhola and Inderjeet @ Ghuska; PW 17 was Ct. Dinesh Kumar who was a Member of the Mobile Crime Team and deposed taking photographs of the place of occurrence which are Ex.PW 17/1 to 17/11 and the negatives of which are Ex.PW 17/A1 to A11; PW 18 was SI Dhan Singh who was also associated in the investigation at the spot; PW 22 was HC Dharamvir Singh who lodged DD no. 8A on 23.06.2009; PW 23 was HC Om Prakash who was Duty Officer at PS Anand Parbat and lodged the present FIR Ex.PW 23/A; PW 24 was HC M. 7 R. Arya who was Malkhana Incharge of the said police station and deposed regarding the deposit of the case exhibits and its movements for FSL and back; PW 25 was SI Mahesh Kumar who prepared the scaled site plan Ex.PW 25/B; PW 26 was Inspector Dinesh Kumar besides PW 28 ASI Suresh Chand who was associated in the investigation; Lastly Sh. Gaurav Rao, Ld. MM, Delhi was examined as PW 27. He proved the TIP proceedings in regard to the wrist watch and the mobile phone Ex.P 4 and P3 respectively which was identified by Mansa Ram (PW8) and the TIP proceedings are Ex.PW 27/B. Statement of Accused
10. On the close of the prosecution evidence, accused persons were examined as per section 313 Cr.P.C. On putting the incriminating evidence, the accused persons denied the entire case of the prosecution and they claimed that they have been falsely implicated in this case to solve an untraced case. The witnesses denied that recovery of any incriminating material was effected from them. They did not prefer to lead any evidence in their defence. ARGUMENTS:
11. I have given my thoughtful consideration to the submissions made by Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor for the State and Mr. V. K. Jha and Mr. Rakesh Raj Murti, Ld. Counsel for the accused persons. I have also perused the 8 oral and documentary evidence on the record of the case. LAW ON CIRCUMSTANTIAL EVIDENCE
12. At the outset, the prosecution case is based on circumstantial evidence against the accused persons. In the case of Sharad Biridhichand Sarda v. State of Maharashtra, (SC), 1984 AIR SC 1622; 1984 (4) SCC 116; 1984 Cri. L. J. 1738 their lordships discussed the requirement of law as under:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only when the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done bythe accused.
13. In the light of said proposition of law, coming to the instant case, let us discuss some preliminary facts established on the record. The deceased Balvinder Singh as per the postmortem Ex.PW 7/A had sustained a single edged stab wound 4.3cm x 1.4 cm, vertically present over right front of the abdomen, 7cm above and outer to the umblicus and 16 cm vertically below the right nipple. The upper end of the wound was blunt and the track of the wound 9 extended upwards, backwards and from right to left. As per the evidence of PW7 Dr. Anil Sharma the injury cut into peritoneum, lesser curvature of stomach and existed through its greater curvature, piercing left part of transverse colon and ended there. Another injury that was sustained was incised wound, redish 2.5 cm x 0.2 cm present over outer front of right index finger 1.2cm above the root of the finger. The cause of death was opined to be hemorrhage and shock consequent to injury no. 1 due to single edged sharp weapon which was sufficient in the ordinary course of nature to cause death. It appears that injury no. 2 was sustained when the deceased tried to prevent or block the stab.
14. Be that as it may, the postmortem report also exhibited that the deceased was a tall person having a height 5.7 cm weighing about 80 kg aged about 35 years or so. This is quite evident in the photographs Ex.PW 17/1 to 17/11 proved on the record. The evidence of PW3 Sawinder who was a helper in the TATA Canter driven by the deceased from Kaithal to Delhi indicates that they had arrived at Gali no. 10 Industrial Area, Anand Parbat about 1:30am and he deposed that at about 2:00 a.m deceased Balvinder went away to ease himself having a water bottle. The prosecution case is that the dead body of the deceased was found at about 6:30a.m in the morning. Thus, it appears that the deceased was stabbed 10 sometimes between 2:00 a.m to 6:30a.m and as per the postmortem which was conducted at 12:15p.m on 24.06.2009 the time since death was about 30 hours or so.
15. At the cost of repetition, there is no direct evidence that the accused persons were seen at or near the place of occurrence or that they were seen surrounding the deceased or having any quarrel or giving any stab wound to him. The prosecution case rest on extra judicial confession of accused Pankaj and recovery of wrist watch of the deceased besides his mobile phone from the accused persons. Now, first thing first, when the body of the deceased was discovered evidence of PW 19 SI Dharampal and PW 26 IO Inspector Dinesh Kumar indicates that the dead body was identified by PW3 Sawinder. There is nothing in the evidence of PW3 Sawidner that any cash or wrist watch or for that matter mobile phone of the deceased was found missing at the earliest point of time. PW26 Inspector Dinesh Kumar deposed that PW1 Manoj and his brother PW21 Gopi came to the police station and disclosed that one Pankaj had taken a Churi from Gopi on the day of incident and PW21 Gopi disclosed that Pankaj informed that after robbing a person with mobile and cash of Rs.700/ he had stabbed that person and Churi was given to his associate accused Inderjeet @ Ghuska to hide the same.
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16. Perusal of statement of PW1 Manoj and PW21 Gopi u/s 161 Cr.P.C. would show that they were interrogated on 07.07.2009 i.e after 1314 days of the incident and till then the police was in the dark. Unfortunate for the prosecution case, both PW1 Manoj and PW21 Gopi did not support its case in the Court. PW21 Gopi denied giving any statement to the police on 07.07.2009 Ex.PW 21/A that accused Pankaj took away any Churi from him and he also denied any statement to the police that accused Pankaj and Bhola consumed liquor outside his shop and took meals at a rehri in the Fish Market, Anand Parbat. It may be pointed out that no evidence of the rehri wala or the shop owner where meals were allegedly taken together by the accused persons had been led on the record either. PW21 Gopi denied that accused Pankaj asked him for Churi and on the persuasion of accused Raju he gave a Churi to him. He also denied that at about 2:30 or 2:45 a.m accused Pankaj came to him who looked frightened and made an extra judicial confession that he had looted Rs.700, a mobile and wrist watch of a person after stabbing him.
17. In fact, PW26 IO Inspector Dinesh Kumar deposed in his cross examination that accused Pankaj was called at the Police th th Station for interrogation on 24 and 25 June 2009 but the interrogation did not reveal anything. So far as the evidence of PW1 12 Manoj is concerned, it was only hearsay in as much as he had stated to the police that such facts were told to him by his brother Gopi.
18. Another chain of circumstance that is broken is the fact that as per PW26 Inspector Dinesh Kumar , PW13 SI Anoop Kumar and PW 14 Ct. Sansbir Tomer, accused Pankaj was arrested on a secret information early morning at 4:00 a.m on 09.07.2009. Suffice to state that if the arrest of the accused Pankaj is believed to have taken place in the morning on 09.07.2009 at about 4:10am, the prosecution evidence that at his behest accused Raju was arrested on the same day i.e 09.07.2009 who was wearing wrist watch of the deceased Ex.P4 is not inspiring any confidence. PW1 Manoj rather deposed that he was taken to his village by the police to nab accused Raju and accused Raju was arrested by the police from the Railway Platform, Bareili, UP and then brought to Delhi. There is much contradiction in the evidence of PW 13 HC Anoop Kumar and PW14 Ct. Sansbir Tomer viz a viz PW 28 ASI Suresh Chand into the manner in which the accused Pankaj and Raju were arrested. It is needless to point out that no public witnesses were joined at the time of apprehending the accused Pankaj as well as accused Raju and the recovery of the wrist watch Omni Quartz Ex.P4 vide seizure memo Ex.PW 13/A is not inspiring confidence.
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19. So far as accused Bhola is concerned, he appears to have been caught at Ice Cream Factory, Sector 58, Ballabhgarh and PW26 Inspector Dinesh Kumar deposed that on sustained interrogation accused Inderjeet made a disclosure statement Ex.PW 14/B and accused Bhola made a disclosure statement Ex.PW 14/C. He deposed that accused Bhola produced a mobile set make Nokia 1200 admitting that the same was robbed from deceased Balvinder. The accused Inderjeet is the alleged to have taken the police party to Fish Market, Anand Parbat where he got recovered Churi Ex.P2. I am afraid the said evidence is also not inspiring confidence. No intimation was sent to the local police station before the accused Bhola and Inderjeet were arrested nor any public witnesses were joined despite their availability at the place of raid as conceded by the police witnesses. If the evidence of the police witnesses is believed that they had gone to Ballabhgarh in a private vehicle which was driven by a private driver, surprisingly even the driver was not associated at the time of such recovery. It is in the evidence of PW16 ASI Zora Singh that they remained at the spot for about 56 hours and again no one was associated in the investigation.
20. It is pertinent to mention here that the case of the prosecution is that deceased was using the mobile set Ex.P3 with no. 9779467578 as per the Consumer Application Form Ex.PW 10/A 14 and call records Ex.PW 10/B and 10/C. It is from here that the IMEI of the mobile set 356813028290530 was found / obtained and the prosecution case is that the mobile set was later on used for mobile connection no. 9953825821 and 9953874954. PW4 Anil Kumar deposed that one Bhola Kumar had been using mobile no. 9953825821 who was his servant which mobile connection was availed by his servant Bhola on his ID prove. However, PW4 Anil Kumar did also depose that accused Bhola was not the same person who had been using the Sim card on his ID and it was some other Bhola Kumar. PW5 Bhola Kumar was also examined who stated that he had been using mobile no. 9953825821 and its Sim card was given by him to accused Bhola who was his servant for one day as he wanted to make a call to his family and the same was not returned by accused Bhola and sometimes in July 2009 when the police arrested accused Bhola along with Inderjeet, he found that the police had also taken away his Sim card.
21. The evidence therefore, indicates that accused Bhola had taken a Sim card from PW 5 but there is twist in the story and PW 20 Babloo Kumar who stated to the police that he had been using mobile no. 9953874954 and had come to Delhi along with his employer Bhola Kumar (PW5). The Consumer Application Form and the call records of the mobile connection no. 9953825821 and 15 9953874959 were produced which are Ex.PW 9/A to PW 9/G. A perusal of the call records in regard to mobile no. 9953825821 Ex.PW 9/F for the period 23.06.2009 to 11.07.2009 besides perusal of call record in respect of mobile connection no. 9953874954 Ex.PW 9/G for the same period would show that the same IMEI no. 356813028290530 was being used. In other words, if Ex.P3 is believed to be the mobile set of the deceased, the same IMEI number was being used on the above said two mobile connections. First thing first, mobile connection no. 9953874954 was in the name of one Laxman who was not traced by the police and not produced in the evidence. Secondly, PW22 Bablo Kumar denied that he was using any mobile connection no. 9953874954 or that he gave its Sim card to the accused Bhola Kumar. Thus, the prosecution story that the accused Bhola Kumar had been using such mobile numbers on the said Ex.P3 is not inspiring confidence.
22. Lastly, the recovery of Churi Ex.P2 at the behest of accused Inderjeet @ Ghuska is also not inspiring confidence as again the same was recovered from an open market place and no public witnesses were joined at the time of effecting such recovery despite such recovery was being affected in broad day light with so many public persons around. It appears that the police has found a very convenient way of planting one evidence after the other upon 16 the accused persons in order to crack a blind case.
23. The sum and the substance of the above discussion is that there is no evidence that the accused persons were at or near the place of occurrence at the time when the incident occurred. The prosecution is miserly failing to prove that the accused persons acted in concert or with any intention. The accused persons all the time were working at their places of work and did not try to run away. The recovery of wrist watch of the deceased from the accused Raju and mobile set from accused Bhola besides Churi at the behest of accused Inderjeet is not inspiring confidence.
24. In the said view of the discussion, I find that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. The accused persons namely Pankaj Kumar S/o Lallan Kumar, Raju S/o Netar Pal Singh, Bhola S/o Chalitar Sahni and Inderjeet @ Ghuska S/o Jagan Nath are hereby acquitted. Their Personal Bonds are cancelled and sureties are discharged. They be released forthwith if not required any other case. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA) COURT TODAY i.e 21.09.2010 ASJII / NORTH, DELHI 17 SC 70/09 21.09.2010 Present:Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor for the State M r . V . K . J h a , A d v o c a t e f o r t h e a c c u s e d B h o l a and Inderjeet@ Ghuska Mr. Rakesh Raj Murti, Advocate for the accused Pankaj Kumar and Raju V i d e s e p a r a t e d e t a i l e d j u d g m e n t o f e v e n d a t e , a c c u s e d p e r s o n s n a m e l y P a n k a j K u m a r S / o L a l l a n K u m a r , R a j u S / o N e t a r P a l S i n g h , B h o l a S / o C h a l i t a r S a h n i a n d I n d e r j e e t @ G h u s k a S / o J a g a n N a t h a r e h e r e b y a c q u i t t e d . T h e i r P e r s o n a l B o n d s a r e c a n c e l l e d a n d s u r e t i e s a r e d i s c h a r g e d . T h e y b e r e l e a s e d f o r t h w i t h i f n o t r e q u i r e d a n y o t h e r c a s e . F i l e be consigned to Record Room.
(DHARMESH SHARMA) ASJII/North, Delhi.
21.09.2010