Delhi District Court
State vs . Prince - Sc No. 87 Of 2013 1 on 9 May, 2014
ID No. 02403R0237682010
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 87/2013
Unique ID No. 02403R0237682010
FIR No. 87/2010
U/s 302 IPC
PS : Ambedkar Nagar
State
Vs
Prince ..........accused
s/o Sh. Shyam Lal
r/o B-212/A, Duggal Colony
Khanpur, New Delhi
Instituted on : 20th March , 2013
Arguments concluded on : 02nd May,2014
Decided on : 09th May, 2014
JUDGMENT
Facts
1. On 31.03.2010, Inspector M. S. Poonia received information about recording of DD no. 48-A to the effect that one Gajender Singh s/o sh. Harbhajan Singh r/o 10/81, Dakshinpuri Extension, New Delhi, aged about 24 years, who was admitted in the MAX hospital vide MLC No. 1377/2010 had died during treatment. Inspector M. S. Poonia alongwith other police staff reached at MAX hospital, where ASI Ghanshyam met and told him that an information vide DD no. 40-A dated 30.03.2010 at 10:08 pm was received regarding a quarrel at 10/81-82, Dakshinpuri. Another information was received vide DD no. 45-A dated 30.03.2010 at 11.05pm, regarding stabbing of a person and his admission in Max hospital. Both the Daily Diaries (DDs) were assigned to ASI Ghanshyam. He handed over to IO MLC no. 1377/2010 and death summary of Gajender (deceased). Statement of Amarjeet Singh s/o Koda Singh uncle of Gajender State Vs. Prince - SC No. 87 of 2013 1 ID No. 02403R0237682010 Singh (deceased) was recorded. In his statement, complainant stated that he was residing with his family at 10/81-82, Dakshinpuri, New Delhi for the last 30-35 years and reached at his home from the place of his duty at about 08:10pm. He was sitting on the first floor of his house and watching TV and at about 09:30pm, his wife Smt. Sheel Kaur came inside and informed him that Gajender Singh had sustained injury and blood was oozing out. He immediately went to second floor where his nephew Gajender Singh was residing. He noticed Gajender Singh being brought in his hands by Ranjeet Singh and coming downstairs. Pool of blood was oozing from the body of Gajender Singh. According to the complainant, on asking, Gajender told him and his nephew Ranjeet Singh and one Prince s/o Sh. Shyam Lal , who was residing earlier at house no. 10/217, Dakshinpuri, New Delhi had stabbed him in the street near park. He became unconscious. In the meantime, Gurpreet Singh, his nephew told him that before this incident, Prince had met him in the street and was staring towards him. He was afraid and came back to his house. Amarjeet Singh and Ranjeet Singh took Gajender Singh to Max Hospital , Saket, where later on he died. It is further stated that 8-10 months ago, an altercation took place between his elder brother Harbachan Singh (father of deceased-Gajender) and Shyam Lal (father of accused-Prince). Since, Prince had to take revenge from Gajender Singh, he stabbed Gajender Singh with the intention to eliminate him.
2. On the statement of Amarjeet Singh, FIR was registered. During investigation, crime team inspected the scene of crime. Photographs of the place of occurrence were taken and site plan was prepared. Blood stained earth control, blood stained chappal and bed sheets were seized. On 31.03.2010, State Vs. Prince - SC No. 87 of 2013 2 ID No. 02403R0237682010 postmortem on the dead body was got conducted at AIIMS hospital. Accused Prince was arrested from his house and his disclosure statement was recorded. Pursuant to his disclosure, a knife was recovered from A- Ist block, Madangir Park towards Western Gate from the heap of building shattering material near H. No. A-I/144 & 145, Madangir. Site map of place of recovery and sketch of knife was prepared by the IO. As per Postmortem report, cause of death is "haemorologic shock consequent on stab injury (injury no. 1) and injury no. 2 was stated to be surgical wound." Exhibits were collected and deposited in FSL. On conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 24.06.2010 and case was committed to the Court of sessions by Learned Metropolitan Magistrate. On 28.01.2012, charge u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
Charges
3. Point which emerges for determination in this case is Whether on 30.03.2010 at 09:30pm, in the gali in front of house no. 10/128, near park, Dakshinpuri, New Delhi accused Prince committed murder of Gajender Singh (deceased)?
Prosecution Evidence
4. To establish charges against accused, prosecution examined twenty one witnesses. Brief outline of the testimony of prosecution witnesses is as under:
4.1 Doctor Manish Goyal (PW-11) had conducted postmortem on the dead body of Gajender Singh (deceased) vide postmortem report (Ex. PW11/A). Doctor Punidha Kaliaperumal (PW-12) medically examined Gajender Singh on 30.03.2010, who was brought to MAX hospital. She prepared his MLC (Ex. PW12/A) and opined nature of injuries sustained by injured as "dangerous".State Vs. Prince - SC No. 87 of 2013 3
ID No. 02403R0237682010 4.2 Amarjeet Singh (PW-1) uncle of Gajender Singh (deceased). FIR was recorded on the basis of his statement (Ex. PW11/A). He is witness to the seizure of blood stained chappal (Ex.PW1/B). He identified dead body of his nephew vide receipt (Ex. PW1/C) and received dead body after postmortem vide memo (Ex. PW1/D). He also identified one bed sheet (Ex. P-1), one pair of chappal (Ex. P-2). Taran Singh (PW-2) uncle of Gajender Singh (deceased) identified dead body vide memo (Ex. PW2/A). He is witness to the memo (Ex. PW1/D) as regards receiving of dead body. Kamal (PW-3) who was projected as independent witness to the recovery of knife showed ignorance about the case. He has not supported the case of prosecution. He was cross examined by Learned Addl. PP. Ranjeet Singh (PW-4) is real brother of Gajender Singh (deceased). Sheel Kaur (PW-5) is wife of Amarjeet Singh. She was cross examined by Learned Addl. PP. Gurpreet Singh (PW-6) is cousin of Gajender Singh (deceased) and Harbhajan Singh (PW-9) father of Gajender Singh (deceased). 4.3 W/Constable Manoj (PW-7) had received message from mobile phone number 9211299658 regarding quarrel at Dakshinpuri Extension near Sant Nirankari Bhawan. She recorded the information and placed on record form no.1 (Ex. PW7/A). HC Mange Ram (PW-8) duty officer recorded FIR (Ex. PW8/A). He also recorded DD no. 50-A (Ex. PW8/C) in that regard. SI Vijay Pal (PW-10) incharge mobile crime team, inspected place of occurrence on 30.03.2010 alongwith Ct. Kapil, Photographer HC Raj Kumar (finger print proficient) and no finger print could be detected. HC Kapil (PW-13) photographer took photographs (Ex. PW10/A-1 to Ex. PW10/A-18). ASI Ghanshyam (PW-14) reached at the place of occurrence on receipt of DD no. 14-A (Ex. PW14/A) regarding quarrel at 10:08 pm. Then, he received information vide DD no. 45-A regarding admission of injured in the Max hospital. PW-14 reached at the Max hospital, where he came to know that deceased had already been declared brought dead. He handed over to the IO, a sealed pullanda containing clothes of deceased seized by him vide memo (Ex. PW14/A).
4.4 Constable Subhash (PW-15) deposed that malkhana moharar, HC Girdhari had handed over 15 sealed parcels containing exhibits, FSL form to deposit at FSL, Rohini which were deposited by him on 29.04.2010. He placed on record acknowledgment of receipts of exhibits (Ex. PW15/A and Ex. PW15/B). SI Mahesh State Vs. Prince - SC No. 87 of 2013 4 ID No. 02403R0237682010 Kumar (PW-16) draftsman prepared scaled site plan (Ex. PW16/A) at the instance of IO/Inspector M. S. Poonia. W/Constable Usha (PW-17) received message regarding stabbing of a boy with a knife from 10/81, Dakshinpuri Extension, Behind Nirankari Mandir. She recorded information and sent the message to the operator vide information (Ex. PW17/A). HC Rajender (PW-18) reached at Max hospital on receipt of information regarding death of injured on 30.03.2010. He is witness to memo (Ex. PW18/A) of seizure of blood (in gauze) of deceased.
4.5 HC Diwan Singh (PW-19) joined investigation with the IO and Constable Surender. He is witness to seizure of exhibits i.e. blood in gauze, blood stained earth, earth control, blood stained bed sheet, blood stained concrete from staircase, blood concrete alongwith control thereof and one pair of chappal (Ex. PW19/A to Ex. PW19/J)respectively. Constable Kundan (PW-20) special messenger delivered copy of FIR to the Learned MM, Joint Commissioner and ACP of the area. Inspector Mahender Singh Poonia (PW-21) investigated the case. He prepared several documents during investigation and placed on record copies of DD no. 40-A (Ex. PW21/A), DD no. 45-A (Ex. PW21/B) and DD no. 48-A (Ex.PW21/A-1). He made endorsement (Ex. PW21/C) on the statement of Amarjeet Singh and sent HC Rajender for registration of FIR. He prepared site plan (Ex. PW21/D) regarding place of incident and site plan (Ex. PW1/DA) of location of the incident and house of Gajender Singh (deceased). He prepared death report (Ex.PW21/E), site plan of place of recovery of knife (Ex. PW21/G) and tendered the FSL results (Ex.PA, Ex.PB and Ex. PC) on record.
Statement of accused
5. On conclusion of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded. Accused pleaded innocence and false implication. Accused stated that he was lifted from his residence and Police obtained his signatures on some blank papers. Amarjeet Singh, Ranjeet , Harbhajan Singh and Gurmeet were having an inter-se property dispute of second and third floor. He was made him scapegoat and was shown to the witnesses after his arrest. State Vs. Prince - SC No. 87 of 2013 5
ID No. 02403R0237682010 Submissions advanced
6. I have heard submissions advanced by Sh. Wasi-Ur-Rahman, Learned Addl. PP for State and Sh. Rajesh Arora Learned Defence counsel and have perused the record carefully.
7. Learned Addl. PP argued that name of assailant was disclosed by the deceased to the complainant (PW-1), who took him to the hospital and that disclosure of name of assailant is an oral dying declaration. He submits that although testimony of PW-9, who is an eye witness of incident is sufficient to prove the case. PW-9 has categorically stated that accused Prince had stabbed his son in the park. There is nothing in the cross examination of PW-9 to shake his testimony. He urged that FIR in this case was lodged within 4½ hours of incident and there is no delay in lodging the FIR, because impact of crime on the relatives, who are eye witnesses is shocking, which would be supreme, at the relevant time and other aspects are to be kept in mind. He submitted that in this case, there is only one accused and there is no chance of embellishment and there is no apprehension of recording of FIR as an afterthought. Learned Addl. PP submits that as far as the spot is concerned, it is clearly depicted in the site map and corroborated by PW-9. Blood stained soils or cemented material were lifted from the park, from the gate of park and from the staircase in the house of deceased, where he had run away after sustaining injuries. It is submitted that the eye witness (PW-9) has deposed in his testimony that he was discharged from the hospital on 29.03.2010 as he was ailing from illness and at that time, he was not able to walk frequently, therefore, after the incident, he somehow could reach his house but till then, injured had been shifted to the hospital, therefore, State Vs. Prince - SC No. 87 of 2013 6 ID No. 02403R0237682010 due to illness, eye witness (PW-9) was not in a position to accompany his son to the hospital and to make a statement promptly, then and there. Therefore, there is no reason to discard testimony of PW-9.
8. As far as the alleged history noted in the MLC is concerned, in such a situation, Learned Addl. PP argued that it is not possible for relatives to mention the alleged history to the doctor. Since in this case, injured was in a critical condition and even the doctors at that time would not be in a position to talk to the relatives because to save the life of injured was the first task of the doctor. He submits that testimony of eye witness is consistent with medical evidence and minor contradictions in the testimony of official witnesses are not material and cannot go to the root of the case. Learned Addl. PP relied upon "Om Prakash vs State of Haryana"1, in support of his submissions that there is no dispute that effort has to be made to lodge the FIR at the earliest, but while deciding the fact, whether FIR was lodged at the earliest or not, the Court has to consider the fact that the shock and panic would rule supreme at the relevant time and the impact of the crime on the relations who are eye-witnesses.
9. Per contra, Learned counsel appearing for accused submitted that incident occurred at 09:30pm whereas, time of admission of injured in MAX hospital was 10:30pm, was mentioned and FIR recorded at 01:50am (night). It is submitted that Amarjeet Singh (PW-1) , Ranjeet Singh (PW-4) and Harbhajan Singh (PW-9) knew the name of accused Prince but they had not disclosed or told his name either to the police or to the attending doctor at MAX hospital, which clearly makes their version that deceased had told name of Prince to them, 1 2014 STPL (Web) 272 SC State Vs. Prince - SC No. 87 of 2013 7 ID No. 02403R0237682010 suspicious.
10. Learned counsel appearing for accused further submits that crime team officials had reached at the place of occurrence within half an hour then, Learned counsel wondered why rukka was sent after four hours. It is argued that if the family members of deceased were present in the house, then to whom deceased had disclosed about the incident. It is further submitted that no oral dying declaration is proved to have been made by deceased and at any rate, it is not worthy of credence, in view of conduct of these witnesses, which is not natural. He submits that testimonies of Harbhajan Singh (PW-9), Smt. Sheel Kaur (PW-5), Ranjeet Singh (PW-4 and Kamal (PW-3) are not reliable and they had come up with contradictory statements and lastly, recovery of knife is also doubtful, since the only public and independent witness Kamal has not supported the case of prosecution and has shown falsity of prosecution version. Legal Position
11. At the outset, to appreciate submissions and before discussion of testimony of material witnesses, relevant legal position may be noted.
12. In a criminal case, a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the production of evidence as may show him to be guilty of the offence with which he is charged. Burden of proving the guilt of the accused is upon the prosecution and unless it relives itself of that burden, the Courts cannot record a finding of the guilty of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is, not positively proved to be true, the accused would be entitled to acquittal. Court has to test the evidence State Vs. Prince - SC No. 87 of 2013 8 ID No. 02403R0237682010 for its inherent consistency and the inherent probability of the story. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst the witnesses.
13. It is a primary principle that the accused must be and not merely may be guilty, before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Facts established should be consistent only with 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.
14. Court is required to consider the manner of giving evidence, surrounding circumstances, probabilities, motive for giving true or false evidence, intrinsic merit of the evidence and how it stands with other evidence adduced. Reliability of witnesses depends upon the accuracy of the witnesses, original observations of the evidence which he described; correctness and extent of what witnesses remember and their veracity. Court has to consider whether, in the circumstances of the case, it is possible to believe presence of witnesses at the scene and whether there is anything inherently improbable or unreliable in his evidence. Their conduct during occurrence and subsequently has to be considered and examined. Discrepancies which relate to material points cannot be lightly glossed over but have to be assessed seriously. Trifling discrepancies can be ignored as natural discrepancies among honest witnesses. Broad facts of the case and not minor details have to be considered in weighing the evidence. Court has to weigh the evidence carefully in measuring its worth or worthlessness. Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal State Vs. Prince - SC No. 87 of 2013 9 ID No. 02403R0237682010 proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.
15. In a case reported as State of U.P Vs. Mushtaq Alam2, PW-1 accepted that he had not accompanied the deceased to the Hospital and waited at the spot for about forty minutes to lodge the FIR. It was observed that the conduct of the witness is unnatural. In normal course, he would have either accompanied the deceased. In State of Maharashtra Vs. Raju Bhaskar Potphode3, accused was convicted by the Trial Court u/s 302 IPC, placing reliance on the evidence of PW-2. In appeal accused was acquitted by the Hon'ble High Court observing that his presence at the time of occurrence was highly doubt full and that his conduct was not natural and trustworthy. The Hon'ble Apex Court found that the reason did not suffer from any infirmity to warrant interference. In Jagir Singh Vs. State4, a case u/s 302 IPC, it was observed that none disclosure of the name of the assailants, who were claimed to be previously known, at the first possible instance, while admitting deceased in the hospital and reporting the incident to police constable on duty and witness by non proceeding to the Police Station for giving information nor waiting at the hospital in order to attend the injured was the unnatural conduct and the strange and inexplicable conduct on the part of prosecution witnesses.
Discussion of Evidence
16. On the touchstone of tests noticed above, now I shall advert to the evidence adduced by the material witnesses of the prosecution.
2. 2007 (3) JCC 2203 SC
3. 2007 (3) JCC 2298 SC
4. 1975 SCC (Crl.) 129 State Vs. Prince - SC No. 87 of 2013 10 ID No. 02403R0237682010 Homicide
17. Doctor Punidha Kaliaperumal (PW-12) Emergency Medical Officer examined Gajender Singh (deceased) on 30.30.2010. PW-12 found him unresponsive. He was profusely bleeding from stab wound sustained on the left flank with 5 x 2 cm very deep stab wound on the left side of back in lumber region. Condition of injured being critical, was shifted to OT for exploratory laprotomy. Doctor Punidha Kaliaperumal (PW-12) prepared MLC (Ex. PW12/A) and opined the nature of injuries sustained by injured as "dangerous". Doctor Manish Goyal (PW-11) conducted postmortem on the dead body of Gajender Singh vide report (Ex. PW11/A) on 30.03.2010 at 09:30 pm . Rigor mortis was found present all over the body. He opined the cause of death "hemorrhagic shock consequent upon stab injury described at serial no. 1" . Injury no. 2 was stated to be surgical wound. Autopsy surgeon (PW-11) opined that injury no. 1 was independently sufficient to cause death in ordinary course of nature. Thus, this fact stands established that this is a case of homicide. Time and place of incident and delay in FIR
18. As per case of the prosecution, incident had occurred at about 09:30pm, at 10:08pm, information was recorded vide DD no. 48-A that a quarrel had taken place at 10/81-82, Dakshinpuri. As per MLC (Ex. PW12/A) Gajender Singh (deceased) arrived at Max Hospital at 10:00pm on 30.03.2010. MLC (Ex. PW12/A) notes time of incident as "09:30pm" and time of admission of injured "10:30pm". Place of incident is stated to be Dakshinpuri Extension and the person who accompanied Gajender Singh (deceased) was Amarjeet Singh (PW-1). No alleged history of incident has been noted or disclosed to the State Vs. Prince - SC No. 87 of 2013 11 ID No. 02403R0237682010 attending doctor of Max hospital. DD no. 45-A was recorded at 11:05pm regarding stabbing of a person at 10/81-82 , Dakshinpuri , who had taken to Max hospital. At 12:15 am on the intervening night of 30.03.2012/31.03.2012, DD no. 48-A was recorded at Police Station Ambedkar Nagar whereby security assistant intimated that Gajender Singh s/o Harbhajan Singh had expired during treatment at Max hospital. Statement of Amarjeet Singh (PW-1), uncle of Gajender Singh (deceased) was recorded and rukka was sent at 01:30am (night), pursuant to which FIR was recorded at 01:50am (night) on 31.03.2010 vide DD no. 50-A.
19. Case projected by the prosecution was that Harbhajan Singh father of deceased, who appeared in the witness box as (PW-9) was accompanying deceased in the park. Thereafter, deceased came back to his residence from the park. At the residence of his uncle Amarjeet Singh (PW-1), his real brother Ranjeet Singh (PW-4) and his aunt Smt. Sheel Kaur (PW-5) were present. As per prosecution version, Gajender Singh (deceased) had told name of the assailant to Amarjeet Singh (PW-1) and Ranjeet Singh (PW-4) and also to Smt. Sheel Kaur (PW-5). The fact which emerges from the chronology of daily dairy entries, is that although incident had occurred at 09:30pm and Amarjeet Singh (PW-1), Ranjeet Singh (PW-4) and Harbhajan Singh (PW-9) were aware about the name of assailant as Prince - the accused, but the name of assailant was not informed to the police, neither at 10:08pm, when the information regarding the quarrel was given nor admittedly, at 11:05pm, when the father of deceased informed the police. Name of assailant was also not disclosed to the attending doctor. There is no explanation regarding delay of more than four hours in lodging the FIR recorded at the instance of Amarjeet Singh (PW-1). State Vs. Prince - SC No. 87 of 2013 12
ID No. 02403R0237682010
20. In "Thulia Kali vs State of Tamil Nadu5 it was noted:
"...... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the name of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature or after thought. On account of delay the report not only gets benefit of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
21. Now, as regards place of incident, as per testimony of IO/Inspector M. S. Poonia (PW-21) and perusal of site plan (Ex. PW21/D) shows the place where the stabbing incident had occurred at point 'A'. It is stated to be 5 feet away from the gate of the park. Blood was found at point B and A. The point B is 20 inches away from the gate of the park. As per IO, stabbing incident had taken placethe park. There are two alleged spots in this case . One spot was park near the house and the other house itself. HC Kapil (PW-13) photographer of crime team deposed that he alongwith incharge crime team had reached at the place of occurrence i.e. within the gali in front of house no. 10/128, Dakshinpuri, New Delhi where from, on the direction of incharge crime team, he took 18 photographs (Ex.PW13/A-1 to Ex.PW13/A-18). In cross examination, he deposed that he had not taken the photographs of the blood lying inside the park and had taken photographs of the blood inside the first floor and staircase of first floor of 5 1972 CAR 280 (SC) State Vs. Prince - SC No. 87 of 2013 13 ID No. 02403R0237682010 premises bearing no. 10/181-182, Dakshinpuri and distance between the park and the house from where the photographs of blood were taken was about 100-150 ft.
22. ASI Ghanshyam (PW-14) who had reached at 10:30pm the spot first of all, on receipt of DD no. 40-A regarding quarrel at 10:08pm at 10/81-82, Dakshinpuri and remained there till 11:05pm. PW-14 had not seen 'blood' at the place of occurrence. He had not seen any blood at any place outside the house or any where at the place of occurrence. Although, PW-14 deposed that there was light outside the house.
23. Perusal of record show that earth control was taken from inside the park. HC Diwan Singh (PW-19) could not tell, if IO had taken any earth control from inside the park. Seizure memos (Ex. PW19/A to Ex. PW19/D), which pertain to earth control (mark E-3 to E-6) respectively was lifted from near the gate of the park and from the naali near the gate of the park. Other earth control lifted by the IO was from the second floor staircase of house no. 10/81-82, Dakshinpuri vide memos (Ex. PW19/E to Ex. PW19/G). Alleged incident had taken place in the park and there is no reason why IO or photographers did not take photographs from the park. On asking, HC Diwan (PW-19), as to whether it had come to his knowledge that incident of stabbing had taken inside the park, in the gali or inside the staircase of the house or in the room situated at the second floor, PW-19 stated that to his knowledge, the incident occurred near the gate of park. Thus, the exact place where the alleged incident took place has not been satisfactorily established by the prosecution.
State Vs. Prince - SC No. 87 of 2013 14
ID No. 02403R0237682010 Testimony of Harbhajan Singh (PW-9), father of deceased
24. Harbhajan Singh (PW-9) deposed that his son Gajender Singh had taken him to the park at around 09:00pm. He strolled with Gajender Singh in the park. Thereafter, he felt tired as he was discharged from hospital two days earlier. His son made him sit on the patri of tubewell. PW-9 deposed that when his son started moving towards house from the ghumao-dar railing of the park, in the meanwhile accused came running and stabbed his son with a knife on the back. His son cried that he was stabbed. Thereafter, he ran towards his house. Accused ran back from the side he had come. PW-9 deposed that he tried to stand up after sometime, to reach to his house. In the meantime, his brother Amarjeet Singh came . His Son Ranjeet Singh had already taken Gajender Singh to the hospital .
25. Admittedly, Harbhajan Singh (PW-9) who was projected as an eye witness has not accompanied his son to the hospital. Gajender Singh (deceased) had arrived at Max hospital on 30.03.2010, whereas, in his testimony, Harbhajan Singh (PW-9) deposed that he remained at home. Indisputably, Harbhajan Singh (PW-9) had not made any statement to Ghanshyam (PW-14), who reached at the house on receipt of DD no. 40-A. Indisputably, Harjbhajan Singh (pw-9) had not made any statement to the crime team official, who had reached at the place of occurrence and lifted samples from the exhibits from inside the house. He had not made any telephonic call to the police informing the name of the assailant. Even in the statement of Amarjeet Singh (PW-1) , whose statement was recorded at 01:30am (night) it is not mentioned that Harbhajan Singh (PW-9) was accompanying Gajender Singh (deceased) in the park or had witnessed the State Vs. Prince - SC No. 87 of 2013 15 ID No. 02403R0237682010 incident. Unnatural conduct of Harbhajan Singh at the place of occurrence alongwith Gajender Singh (deceased) in the park clearly shows that he was not accompanying his son in the park. His presence at the place of occurrence, is highly doubtful. Therefore, testimony of Harbhajan Singh (PW-9) is liable to be rejected.
Deposition of Smt. Sheel Kaur (PW-5) and Ranjeet Singh (PW-4)
26. Now, I shall take up testimony of Smt. Sheel Kuar (PW-5). Smt. Sheel Kaur wife of Amarjeet Singh deposed that she was working in kitchen on first floor and her husband was watching TV. Then, Gajender Singh, her nephew came there shouting "chaku maar diya, chaku maar diya" and thereafter, from the stairs, he straight away went to third floor. Gajender Singh was shouting that 'somebody' had hit him with chaku. PW-5 deposed that Gajender Singh had not told any name or the person who was inflicted injuries. . She did not know who had hit him with knife and why. PW-5 was cross examined by Learned Addl. PP. In cross examination, she denied the statement u/s 161 Cr. P. C. (Ex. PW5/A) read over to her. She admitted that quarrel between father of accused and accused on one side and between Gajender and father of Gajender on the other side had taken place, sometime before but she did not know whether because of this reason, accused inflicted knife injuries to Gajender. Even after seeing the accused on pointing out, PW-5 stated that she had never seen accused.
27. Ranjeet Singh (PW-4) real brother of Gajender Singh, deposed that he heard the noise of his brother "chaku maar diya, chaku maar diya". He was residing at the IIIrd floor, came there and told him that he was stabbed by son of Shyam Lal i.e. Prince. Blood was oozing from the wounds of Gajender Singh. He State Vs. Prince - SC No. 87 of 2013 16 ID No. 02403R0237682010 put a 'chadar' on the injured and took him to Max hospital where he was admitted. PW-4 further deposed that injured shown his backside and stated that accused Prince had stabbed him on the back. He further deposed that 8-10 months ago, some altercation had taken place between Harbhajan Singh and Shyam Lal. In cross examination, PW-4 admitted that police had not seized the chaddar or chunni which was used for tying the wounds of deceased. He admitted that Gajender Singh after sustaining injuries came straight to IIIrd floor and had not gone to the ground floor , where his parents were residing. PW-4 testified that he did not know anything about the incident, which took place 8-9 months back and had come to know about the incident 8-9 months, after this incident in his house, from his relatives and parents. PW-4 stated that it took around 10-15 minutes in reaching hospital and during that time, Gajender (deceased) was alive and had not stated anything except "bhai bhai". PW-4 stated that the he had not made any entry or sign any document in Max hospital, at the time of admitting Gajender (deceased) and said proceeding was conducted by Amarjeet Singh. PW-4 stated that he had not given his statement to police at any point of time. He admitted that he was having a mobile phone on that day. Neither his family members nor he called police on 100 number . Blood was spread on his clothes as well as on the clothes of his chacha, when they were carrying Gajender Singh but admittedly, IO had not seized his blood smeared clothes and blood smeared clothes of his chacha. He stated that after washing, after sometime, clothes were thrown by them. He deposed that there was no quarrel of his family members at any point of time with accused Prince or they had no quarrel with the family members of accused Prince and Prince had State Vs. Prince - SC No. 87 of 2013 17 ID No. 02403R0237682010 never come to their house after the incident.
28. Scrutiny of evidence adduced by Ranjeet Singh (PW-4) real brother of Gajender Singh (deceased) shows that there is nothing on record to indicate that he had accompanied Amarjeet Singh (PW-1). There is no reason as to why PW-4 had not informed the police. There is no reason as to why name of assailant was not informed to the attending doctor, who noted alleged history. No blood stained clothes of Amarjeet Singh (PW-1) and Ranjeet Singh (PW-4) were given to the police and seized by the police. No information regarding the name of accused was given by the brother to the police till 01:30am (night). Amarjeet Singh (PW-1) deposed that no member of his family made telephone call to the police regarding the incident during the time between 09:30pm to 01:30/02:00am (night).
29. In cross examination, Amarjeet Singh (PW-1) admitted that (Ex. PW1/DA) was not prepared in his presence. Admittedly, the place of incident wass thickly populated area and no independent or public witness were joined by the prosecution. Alleged oral dying declaration wherein accused was named is not found trustworthy and in the light of abovesaid discussion, testimony of Amarjeet Singh (PW-1) and Ranjeet Singh (PW-4) is doubtful. If the deceased had told them the name of accused, nothing prevented them from informing name of assailant to the police or the doctor or to the neighbourers. Recovery of knife is doubtful
30. Kamal (PW-3) who was projected as an independent witness to the recovery of knife has not at all supported the case of prosecution. According to Police had taken his signatures on few documents and he did not know the State Vs. Prince - SC No. 87 of 2013 18 ID No. 02403R0237682010 accused. He was cross examined by Learned Addl. PP. PW-3 stated he had not made statement to the police and denied his statement u/s 161 Cr. P. C recorded by police (mark - PW3/A) read over to him. He denied the suggestion that on 31.03.2010 at about 07:00/08:00pm, while he was walking in the park, behind his house where accused had come. He denied the suggestion that accused pointed out the place situated at south side the park of near the gate where building material was lying or from where accused took out a blood stained churra. He denied the suggestion that sketch (Ex.PW3/A) of churra was prepared. He denied the suggestion that prior to 10 months, father of accused had quarreled with Harbachan Singh and Gajender Singh. He denied the suggestion that because of that incident accused had a grudge and wanted to take revenge. Testimony of Kamal (PW-3) makes recovery of alleged knife from accused highly doubtful.
Conclusions
31. In view of the foregoing reasons, this Court finds that prosecution has failed to establish its case against accused beyond reasonable doubt. Consequently, accused Prince is hereby acquitted from the charges. Accused is directed to furnish personal bonds in the sum of Rs.50,000/- with one surety in like amount as required u/s 437-A Cr.P.C. Accused, who is in JC is ordered to be released forthwith, if not required in any other case. File be consigned to Record Room.
announced in the (Vinay Kumar Khanna)
open court on Additional Sessions Judge-04 & Spl. Judge (NDPS)
09th May, 2014 South East, New Delhi
State Vs. Prince - SC No. 87 of 2013 19