Delhi District Court
State vs (1)Jasveer Singh on 5 November, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) : KARKARDOOMA
COURTS, DELHI.
SC No.13/2010
Unique Case ID No.02402R0002882010
FIR No.251/2009
Police Station Geeta Colony
Under Section 304/34 IPC
State Versus (1)Jasveer Singh
S/o Sh. Gian Singh
R/o H.No.81, Village Ghondli,
PS Krishna Nagar, Delhi110051
(2)Ravi Pal @ Banty
S/o Late Sh. Kanwar Pal
R/o Village Sikera, PS Mawana,
Meerut, U.P.
(1/20, Geeta Colony, Delhi)
(3)Mukhtar Hussain @ Babloo
S/o Sh. Ishtiyaq Hussain
R/o 23B, West Laxmi Market,
Opposite Petrol Pump, Geeta
Colony, Delhi.
SC No.13/2010 State Vs. Jasveer Singh etc. Page 1 of 21
New Lahore, Shastri Nagar,
Geeta Colony, Delhi.
Village Sivara, PS Bijnore,
District Bijnore, U.P.
Date of Institution : 27.01.2010
Date of judgment reserved : 24.10.2011
Date of judgment : 05.11.2011
JUDGMENT
Three accused persons, namely, Jasveer Singh, Ravi Pal @ Banty and Mukhtar Hussain @ Babloo have been sent to face trial by the police of Police Station Geeta Colony in FIR No.251/2009 under Section 304/34 IPC.
2 Briefly stating the facts of the present case are that on 8.10.2009, DD No.21A Ex.PW4/A was received in police station Geeta Colony to the effect that a dead body was lying in a bus, route no.39 stationed near Jheel Bus Stand near Ashiyan Banquet Hall and same was assigned to ASI Ami Chand (PW12). ASI Ami Chand (PW12) along with Ct. Tarun (PW3) reached at the spot and SHO along with police staff followed him. At the spot, one Chand Khan was found lying dead on the back side of bus, bearing registration no.DL 1PA 7561, route no.39. Crime team and photographer were SC No.13/2010 State Vs. Jasveer Singh etc. Page 2 of 21 called at the spot. Photographer Ct. Jagbir Singh (PW5) took photographs Ex.PW5/A1 to A8 (positives) and their negatives are Ex.PW5/A9 to A16 at the instance of SHO Inspector Niam Pal Singh (PW16). ASI Ahtesam Ali (PW8) inspected the dead body and scene of crime and prepared crime team report Ex.PW8/A. One eyewitness Mohd. Farukh (PW7) met SHO at the spot and SHO (PW16) recorded his statement Ex.PW16/A. 3 Mohd. Farukh (PW7) (hereinafter referred to as the complainant) in his statement Ex.PW16/A had stated that he had been working as a driver for the last 20 years and that on 8.10.2009, he was on duty rest and had come to meet his uncle Haji Taj Mohd. (PW15) at Jheel Chowk, Tonga Bus Stand. On that day at about 1.00 PM, bus of route no.39 bearing registration no.DL 1PA 7561 came and stopped. After the passengers alighted from the said bus, he looked into the bus and saw that driver of the bus accused Jasveer Singh along with his two associates, namely, accused Mukhtar @ Babloo and Banty were fighting and manhandling with his uncle Chand Khan. When he went into the bus in order to intervene, all the three accused persons ran away. Due to beatings, his uncle fell down in the rear side of the bus. In the meantime, Haji Taj Mohd. (PW15) along with a few persons SC No.13/2010 State Vs. Jasveer Singh etc. Page 3 of 21 also reached there. When they tried to take the bus for hospital, they saw that Chand Khan had expired, therefore, bus was stationed in front of Ashiana Banquet Hall. Someone rang up police and police reached at the spot. Complainant (PW7) also stated that his uncle Chand Khan had expired due to beatings given by accused persons. 4 On the statement Ex.PW16/A, Inspector Niam Pal Singh (PW16) made endorsement Ex.PW16/B and handed over the same to Ct. Trish Pal (PW6) for registration of FIR. In the police station, Duty Officer HC Ashok Rana (PW4) recorded FIR Ex.PW4/B. Thereafter, investigation of the case was taken up by Inspector Niam Pal Singh (PW16). He prepared site plan Ex.PW16/C, prepared inquest papers Ex.PW16/B and dead body of deceased was sent to Subzi Mandi Mortuary for postmortem through Ct. Tarun Kumar (PW3). A photocopy of authorization card Ex.PX of driver pasted on the front windscreen of the bus was taken into possession vide seizure memo Ex.PW12/B. Bus No.DL 1PA 7561 Ex.PW13/P1 was taken into possession vide seizure memo Ex.PW12/A. On the pointing out of Mohd. Farukh (PW7), driver of the bus accused Jasveer Singh who was standing near Ashiana Banquet Hall was apprehended. He was arrested vide arrest memo Ex.PW12/C and his personal search was SC No.13/2010 State Vs. Jasveer Singh etc. Page 4 of 21 conducted vide memo Ex.PW12/D. His disclosure statement Ex.PW16/E was recorded. Statements of Ranjeet Singh (conductor), Haji Taj Mohd. (supervisor) and other witnesses were recorded. 5 Autopsy on the dead body of deceased was conducted by Dr. Akash Jhanjee (PW9) vide postmortem report Ex.PW9/A. Subsequent opinion Ex.PW1/A was given by Doctor (PW9) with regard to cause of death of deceased on the application of the SHO Ex.PW1/B. After postmortem, doctor handed over pullandas containing clothes of deceased, blood sample and sample seal to Ct. Tarun Kumar who handed over the same to ASI Ami Chand (PW12) and same were seized vide seizure memo Ex.PW3/A. Imran (PW14) identified the dead body vide his statement Ex.PW14/B whereas Riyazuddin identified the same vide statement Ex.PW16/F. After postmortem, dead body of deceased was received by PW14 vide memo Ex.PW14/A. During the course of investigation, Smt. Laxmi Devi (PW13), owner of the bus no.DL 1PA 7561 got the same released on Superdari vide Superdarinama Ex.PW13/A. 6 On 11.10.2009, accused Ravi Pal @ Banty was apprehended from his house. He was arrested vide arrest memo Ex.PW11/A and his personal search was conducted vide memo SC No.13/2010 State Vs. Jasveer Singh etc. Page 5 of 21 Ex.PW11/B. He also made disclosure statement Ex.PW11/C. On 12.10.2009, accused Mukhtar Hussain @ Babloo was apprehended from Jheel Chowk, Tonga Stand, Geeta Colony. He was arrested vide arrest memo Ex.PW11/D and his personal search was conducted vide memo Ex.PW11/E. His disclosure statement Ex.PW11/F was also recorded.
7 After completion of the investigation, chargesheet was filed against accused persons in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
8 After hearing Ld. Counsel for the accused persons and Ld. Addl. PP for the State, charge under section 304/34 IPC were framed against all the accused persons on 15.2.2010, which reads as under : "That on 8.10.2009 at about 1 PM, opposite Ashiana Banquet Hall, Jheel Chowk, Geeta Colony, Delhi within the jurisdiction of PS Geeta Colony, in furtherance of your common intention, you all committed culpable homicide not amounting to murder by giving beatings to deceased Chand Khan which resulted into his death and thereby committed an offence punishable under Section 304/34 IPC and within my cognizance."
SC No.13/2010 State Vs. Jasveer Singh etc. Page 6 of 21 9 Accused persons pleaded not guilty to the charge framed against them and claimed a trial.
10 In order to prove its case, prosecution has examined as many as 16 witnesses. PW7 Mohd. Farukh is the complainant whereas PW15 Taj Mohd. is the alleged witness to the incident. PW14 Imran had identified the dead body of deceased. PW13 Smt. Laxmi Devi is the owner of bus in question and got it released on Superdari. PW9 Dr. Akash Jhanjee conducted postmortem on the dead body of deceased. PW5 Ct. Jagbir Singh was member of the Crime Team and took photographs of the dead body and bus. PW8 ASI Ahatesam Ali headed the crime team and gave his report. PW4 HC Ashok Rana was Duty Officer and recoded DD and FIR. PW10 HC Ghanshyam was MHC(R) in the PS and has also proved DD No.21A. PW3 Ct. Tarun Kmar, PW6 Ct. Trishpal, PW11 Ct. Jag Soran, PW13 Smt. Laxmi Devi, PW1 SI Ravi Kumar remained associated in the investigation of the case conducted by PW16 Inspector Niyam Pal Singh and PW2 Inspector Asha Thakur.
11 On conclusion of evidence, statements of accused persons under section 313 Cr.P.C. were recorded wherein they have stated that they are innocent and have been falsely implicated in the SC No.13/2010 State Vs. Jasveer Singh etc. Page 7 of 21 present case. None of the accused opted to lead evidence in his defence.
12 I have heard Addl PP for the State and Ld. Counsel for the accused persons and have carefully gone through record of the case.
13 Ld. Addl PP for the State has argued that prosecution has proved its case against all the accused that on the date of incident, they all gave beatings to deceased Chand Khan in the bus and caused his death. It has also been argued that Doctor who conducted postmortem has confirmed that death could have been caused by giving kicks ad fists blows. It is argued that case against all the accused persons has been proved beyond reasonable doubt. 14 On the other hand, Ld. Counsel for the accused persons has argued that they have been falsely implicated in the present case. It is further argued that they have nothing to do with the present case. It is argued that there is no evidence on record which connect the accused with present offence and even alleged eye witnesses have also turned hostile. It is further argued that in the absence of any evidence, accused persons are entitled for acquittal. 15 Case of the prosecution is that on 8.10.09, all the SC No.13/2010 State Vs. Jasveer Singh etc. Page 8 of 21 accused persons gave beatings to deceased in the bus in which accused Jasveer Singh was a driver which resulted into death of deceased Chand Khan. Accused persons have been charged under section 304/34 IPC.
16 It is also case of the prosecution that complainant(PW7) is the eye witness of the incident who had seen the occurrence. Ld. Addl PP has relied upon his statement Ex.PW16/A in which he alleged that on the day of incident i.e. on 8.10.09 when he came to meet his uncle Taj Mohd.(PW15) at Jheel Chowk, Tonga Stand, Geeta Colony, bus bearing No. DL1P A 7561 came there and he saw that all the three accused persons were giving beatings to his deceased uncle Chand Khan and that he died due to beatings given by accused persons.
17 In his examinationinchief, complainant(PW7) has testified that he was working as driver for the last 20 years on bus route No. 39 plying from Jheel to Tri Nagar, Jai Mata Market. Haji Taj Mohd. is his uncle in relation. On 8.10.2009, he was on rest and his uncle Taj Mohd. telephoned him to reach at Jheel and he informed him that Chacha Chand Khan was lying unconscious there. He reached Jheel Tonga Stand where he met his uncle Haji Taj Mohd. He SC No.13/2010 State Vs. Jasveer Singh etc. Page 9 of 21 saw bus No. 7561 stationed there and that uncle Chand Khan was lying unconscious towards rear gate in the bus and they started bus for taking him to hospital. He further deposed that on checking, he came to know that uncle Chand Khan was dead. He specifically stated that he did not see anybody giving beatings to uncle Chand Khan. He deposed that he knew all the three accused persons but he did not see them giving beatings to Chand Khan in the bus due to which he died. 18 He was declared hostile by the prosecution and was cross examined by Ld. Addl PP for the State during which he stated that he did not give any statement to the police. He denied that on 8.10.2009 at about 1.00 p.m. when he reached Tonga Stand Jheel Chowk to meet his uncle Haji Taj Mohd., bus No. DL 1P A 7561 came there. He also denied that he saw accused persons quarreling and giving beatings to his uncle Chand Khan. He also denied that he tried to save his uncle and accused persons ran away. He also denied that due to beatings given by accused persons, his uncle Chand Khan had fallen towards rear gate of the bus and when they tried to take him to the hospital, he was found dead. He denied that he has been won over by accused persons. He denied that bus or authorization card of driver were taken into possession by police. He denied that accused Jasveer SC No.13/2010 State Vs. Jasveer Singh etc. Page 10 of 21 was arrested at his instance or that site plan was prepared at his instance. He also denied that he compromised the matter with accused persons. He also denied having identified accused Ravi Pal and Mukhtiar before the police as the assailants. During cross examination by Ld. Defence counsels, complainant has specifically stated that his signatures were obtained by police on blank papers. 19 Statement Ex.PW16/A of the complainant is the basis of present FIR. In this statement, complainant has alleged that he had seen accused persons giving beatings to deceased which resulted into his death. But during his testimony in the Court, he has demolished the entire case of the prosecution. He has stated that he has never made any statement to the police and that his signatures were obtained by police on blank papers. He has specifically denied having seen accused persons giving beatings to deceased in his presence. He has even controverted his statement Ex.PW16/A. In statement Ex.PW16/A, it is mentioned that complainant was present at the spot and thereafter bus in question came at the stand wherein he saw that accused persons gave beatings to deceased Chand Khan which resulted into his death. But during his examination in chief, he is specific that he was informed on telephone by Haji Taj Mohd. to come at the spot SC No.13/2010 State Vs. Jasveer Singh etc. Page 11 of 21 as Chand Khan was lying unconscious in a bus. Only inference which can be drawn from the testimony of PW7 made before the court is that he was not present at the spot when alleged incident of beatings with deceased Chand Khan took place. During cross examination by Ld. Addl PP for the State, he categorically denied that he saw accused persons quarreling or giving beatings to deceased. 20 Therefore, there is nothing in the testimony of complainant (PW7) from which it could be inferred that accused persons were the assailants who gave beatings to deceased Chand Khan on the day of incident. Even there is nothing in his testimony to prove presence of accused persons at the spot on the day of alleged incident. Complainant has even denied apprehension or arrest of accused Jasveer Singh at his instance from the spot. Complainant has even denied having made statement Ex.PW16/A to the police. He has even gone to the extent of saying that police obtained his signatures on blank papers. Therefore, complainant has completely demolished the case of prosecution and nothing incriminating has come in his evidence which goes against the accused persons. Therefore, his testimony is of no help to the prosecution and can not be made basis for the conviction of accused persons. S SC No.13/2010 State Vs. Jasveer Singh etc. Page 12 of 21 21 Another alleged witness to the incident is Taj Mohd. (PW15). He has testified that in the year 2009, he was working as supervisor in bus No. DL1P A 6034 of route No. 39 plying from Jheel to Jai Mata Mandir. On 8.10.09, his nephew Mohd. Farooq came to him at Jheel Chowk. On that day at about 1.00 p.m. one bus bearing No. DL1P A 7561 of route No. 39 had already reached there and they found public persons gathered there. He along with Mohd. Farooq looked inside the bus and found that Chand Khan, uncle of Mohd. Farooq was lying dead who was driver on another bus No. 6669 of route No.39. They checked Chand and he was found dead. The bus was parked on the bus stand of route No.310 near Ashiana Banquet Hall. Someone informed the police and police reached at the spot. He also stated that police did not make any inquiry from him and his statement was not recorded.
22 This witness was also declared hostile by the prosecution and was cross examined by Ld. Addl PP for the State. In his cross examination by Ld. Addl PP, he stated that he knew accused Jasveer for the last 20 years and accused Ravi Pal who is also a driver by profession, however, he did not know accused Mukhtiar Hussain before the incident. He denied having said to the police that at about SC No.13/2010 State Vs. Jasveer Singh etc. Page 13 of 21 1.00 p.m. Bus No. DL1P A 7561 of route No. 39 reached at Jheel Chowk, passengers alighted therefrom and in the meanwhile they heard the noise and that when they reached near the bus and peeped inside, they saw accused persons beating Chand Khan. He also denied that Chand Khan was lying in the rear portion of the bus and then he drove the bus to take him to hospital but after some distance, Fateh Mohd. told him that Chand Khan has expired. He also denied that Chand Khan died due to beatings given by accused persons. He denied that he had mixed up with accused persons and in order to save them, he has not deposed true facts. He was confronted with his statement Ex.PW15/A recorded under section 161 Cr.P.C. which he denied having made to the police.
23 From the testimony of PW15 Taj Mohd. also, the prosecution has failed to connect accused persons with the commission of crime of the present case. This witness has not deposed anything against the accused persons. He has specifically deposed that on the day of incident when he along with his nephew Mohd. Farooq(PW7) was present at Jheel Chowk, they saw that bus in question reached there and gathering of public persons. He also stated that when they looked inside the bus, they found Chand Khan lying dead. He has not SC No.13/2010 State Vs. Jasveer Singh etc. Page 14 of 21 stated anything to the effect that any of the accused gave beatings to the deceased in their presence or that they had seen accused persons being the assailants. During cross examination by Ld. Addl PP also, he stuck to his stand taken in examination in chief that he had not seen accused persons giving beatings to deceased. So, there is nothing incriminating in the testimony of this witness from which the inference of guilt of accused persons could be drawn.
24 Another public witness examined by prosecution is Smt. Laxmi Devi (PW13) who has deposed that she is registered owner of bus No. DL1P A 7561 which was got released by her on superdari. She stated that on the day of occurrence, it was being driven by accused Jasveer. Though, it may be true that on the day of incident, the bus was being driven by accused Jasveer Singh but there is nothing in the testimony of PW13 that it was the accused Jasveer Singh who gave beatings to deceased. This witness is not a witness to the incident but just a formal witness who has testified to the effect that she is owner of the bus. Therefore, there is nothing in the testimony of this witness which goes against the accused persons. 25 Another public witness Imran (PW14) has deposed with regard to identification of dead body of his deceased father and SC No.13/2010 State Vs. Jasveer Singh etc. Page 15 of 21 receiving the same after postmortem. There is nothing incriminating in the testimony of this witness.
26 Dr. Akash Jhanjee (PW9) has stated that on 9.10.09, he conducted postmortem on the dead body of Chand Khan and found as many as six injuries on the dead body at the time of external examination. He opined the cause of death as cerebral damage consequent upon blunt force impact to the head. All the injuries were opined to be ante mortem in nature and fresh in duration. He also mentioned that postmortem findings are consistent with blunt assault before death. He proved the postmortem report as Ex.PW9/A. He further deposed that on 18.11.2009, an application was received from SHO, PS Geeta Colony regarding subsequent opinion in respect of postmortem report. In his subsequent opinion Ex.PW1/A, he opined that the injuries mentioned in postmortem report are possible by fists/ kicks. He also opined that cerebral damage produced is known to be sufficient to cause death in ordinary circumstances. 27 In view of postmortem report Ex.PW9/A and subsequent opinion Ex.PW1/A of Dr. Akash (PW9), it has been established that the deceased Chand Khan died due to the beatings given to him. As per opinion of doctor, deceased received fists/kicks SC No.13/2010 State Vs. Jasveer Singh etc. Page 16 of 21 blows on his person which were sufficient to cause his death. Thus, the prosecution has duly established that the deceased died in the occurrence of giving beatings given to him.
28 Even in the present case, accused persons have not been identified as assailants by the alleged eye witnesses. Complainant (PW7) during his testimony in the Court has deposed that he knew all the three accused persons, but he had stated that he came to the spot after receiving information that deceased was lying in unconscious position in the bus in question. He had not stated anything to the effect that he had seen the occurrence of giving beatings to the deceased by the accused persons. He had even disputed the presence of accused Jasveer Singh. He has categorically stated that accused Jasveer Singh was not arrested from near the spot at his instance as alleged by the prosecution. Though, he had admitted his signatures on the arrest memo of accused Jasveer Singh, but had stated that his signatures were obtained on blank papers by the police. There is nothing in the testimony of complainant (PW7) that he had seen any of the accused persons giving beatings to the deceased and thus their identification being the assailants of the deceased has not at all been established.
SC No.13/2010 State Vs. Jasveer Singh etc. Page 17 of 21 29 Another alleged eyewitness examined by the prosecution is Taj Mohd. (PW15) who had also not identified any of the accused persons as the assailants. He had deposed that he was present near the spot. Bus in question came at the spot and he saw the gathering of people and when he went near the bus, he saw that deceased was lying in the bus. Then he along with complainant (PW7) tried to remove deceased to hospital and in the meantime, they came to know that deceased had died. In his entire testimony, he had not named any of the accused as person who had given any beatings or manhandled with the deceased in his presence. So, from the testimony of this witness also, prosecution has failed to establish the identity of accused persons as the assailants. Rest of the witnesses examined by the prosecution are either formal in nature or identified the dead body and their testimony is of no help to the prosecution to establish the guilt of accused persons.
30 In similar circumstances, Hon'ble Supreme Court in case titled Prem Singh vs. State of (N.C.T.) of Delhi (Crl. Appeal No. 589 of 2002 decided by Hon'ble Supreme Court on 24.04.2009) held that when the witness/injured could not identify the accused to be the person who fired at him, accused could not have been convicted for SC No.13/2010 State Vs. Jasveer Singh etc. Page 18 of 21 offence charged. This authority is squarely applicable to the facts of the present case as the alleged eyewitnesses have also not identified accused persons as the assailants of the deceased. 31 In the present case, alleged eye witnesses of the incident, namely, Mohd Farukh(PW7) as well as Taj Mohd.(PW15) have turned hostile and did not support the case of prosecution. They have stated that they had not witnessed the incident and rather came at the spot after the incident. They have also stated that they had not seen any of the accused giving beatings to deceased. In similar circumstances, their lordships of Hon'ble Supreme Court in State of UP vs. Shri Krishan AIR 2005 SC 762, upheld the acquittal of accused persons while observing that eye witnesses of the incident have turned hostile and it was not a case to interfere with an order of acquittal. In another case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90, the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version. 32 In the present case, disclosure statements of accused persons were recorded and same have been relied upon by the prosecution. In their confessional statements, they have stated that they had given beatings to deceased which resulted into his death. SC No.13/2010 State Vs. Jasveer Singh etc. Page 19 of 21 Section 25 of Evidence Act bars the admissibility of confessional statement made before police officers. In case of Ram Singh vs. State of Maharashtra 1999 Cri.L.J. 3763, it was held by Hon'ble Bombay Court that any confessional statement given by accused before police is inadmissible in evidence and can not be brought on record by the prosecution and is insufficient to convict the accused. In view of facts of the present case that alleged eye witnesses have turned hostile and did not support the prosecution case and also in view of judicial pronouncement, I am of the considered opinion that confessional statements made by accused persons before police can not be read against them. It is also a settled law that disclosure statement made by an accused is admissible only to the extent of recovery effected in pursuance thereto either the weapon of offence or articles robbed or retained. In the present case, it is not the case of prosecution itself that any recovery was effected from accused in pursuance to their disclosure statements. Therefore, their disclosure statements can not be read against them.
33 Consequently, I am of the considered opinion that prosecution has failed to prove its case against accused persons beyond reasonable doubt. Accordingly, all the three accused persons, namely, SC No.13/2010 State Vs. Jasveer Singh etc. Page 20 of 21 Jasveer Singh, Ravi Pal @ Banty and Mukhtar Hussain @ Babloo are acquitted of the charge framed against them.
34 Accused persons are directed to comply with provisions of section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 05.11.2011 District Judge and
Addl. Sessions Judge, I/C (East)
Karkardooma Courts : Delhi
SC No.13/2010 State Vs. Jasveer Singh etc. Page 21 of 21