Delhi District Court
State vs 1. Hari Ram @ Raju on 18 March, 2010
1 FIR no. 440/07 PS Punjabi Bagh
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 179/07
FIR No. 440/07
P.S. Punjabi Bagh
U/s 302/34 IPC
State Versus 1. Hari Ram @ Raju
S/o Neem Chand
R/o Belwa Banhara,
P.S. Nizambad,Distt. Azamgarh
U.P.
2. Mohd. ZiaulHaq @ Javed
S/o Sh. Jalauddin
R/o Chhote Malia, PS Gogari
Jamal Pur, Distt. Khagaria
Bihar
3. Babloo
S/o Rama Shankar
R/o Village Khora Ram P.S
& Distt. Deoria, Bihar.
4. Siazuddin @ Chhote Khan
S/oShaukat Ali
R/o Nagar Gawa, PS Chakiya
Distt. Motihara, Bihar
.......contd.
2 FIR no. 440/07 PS Punjabi Bagh
Date of Receipt : 11.10.2007
Date of Conclusion of arguments : 17.03.2010
Date of Decision : 18.03.2010
JUDGMENT :
1. The accused persons Hari Ram @ Raju, Mohd. ZiaulHaq @ Javed, Babloo and Sirajuddin @ Chotte Khan have been chargesheeted by PS Punjabi Bagh for commission of offence under Section u/s 302/34 IPC.
2. Story of prosecution in brief is that on 21.06.2007 at about 7.30 am, an information was received at police station Punjabi Bagh that a dead body of an enunch is lying under the trees near the bus stand, Ring Road, Punjabi Bagh, Delhi. On this information, DD no. 8A was recorded and it was assigned to SI Kartar Singh. SI Kartar Singh along with Ct. Om Parkash reached the spot. They found injuries caused by the sharp edged weapon on the dead body and near the dead body, a pair of sandle and broken pieces of bangles were lying. Crime team was called to the spot and a case u/s 302 IPC was got registered. Investigation was carried out. The dead body was identified to be of one Ashu Chaudhary, a male. On 28.06.2007, accused Hari Ram @ Raju, Javed @ ZiaulHaq and Babloo were apprehended. They confessed about the commission of crime. Accused Javed @ Ziaulhaq got recovered the lady's purse .......contd.
3 FIR no. 440/07 PS Punjabi Bagh belonging to the deceased, from the bushes near the boundary wall, Railway Phatak, Shakur Basti and that purse was containing personal diary of the deceased, his Icard and a bottle of perfume. The clothes which accused Hari Ram @ Raju, was wearing, were also seized as he disclosed that he was wearing these clothes at the time of incident also. They also pointed out the place of occurrence. On 05.08.2007, fourth accused Sirajuddin was arrested and on the pointing out of accused Sirajuddin, one polythene containing the mobilephone make Nokia, belonging to the deceased was recovered. It was also seized. After completion of the investigation, the charge sheet against all the accused persons was filed in the Court.
3. Learned Metropolitan Magistrate after complying the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
4. Accused persons were charged by my Ld. Predecessor for the offence punishable U/s 302/34 IPC, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
.......contd.
4 FIR no. 440/07 PS Punjabi Bagh
5. Prosecution in order to bring home the guilt of the accused persons, examined 17 witnesses in all and thereafter, prosecution evidence was closed.
6. Statements of accused persons were recorded u/s 313 Cr.P.C, wherein they denied the entire evidence. They stated that they have been falsely implicated in this case. They did not wish to lead evidence in defence. Thereafter the case was fixed for final arguments.
7. I have heard final arguments form the learned Additional Public Prosecutor for the State, learned counsel for the accused persons and perused the record.
8. Ld. Addl. PP submitted that there is no ocular evidence in the present case and the case is based on circumstantial evidence. Ld. Addl.PP further submitted that there are three circumstances pointing out towards the involvement of the accused persons in the commission of crime : (i) First is, recovery of the personal belonging of deceased i.e Lady's purse containing, pocket diary, Icard and bottle of perfume at the instance of accused Javed @ Ziaulhaq (ii) Second, recovery of mobile phone at the instance of accused Sirajuddin and (iii) thirdly, seizure of the blood stained clothes of accused Hari Ram @ Raju, .......contd.
5 FIR no. 440/07 PS Punjabi Bagh which he was wearing at the time of incident. Ld. Addl. PP submitted that prosecution in this case has also proved the motive for commission of this offence.
Recovery of belonging of deceased
9. I take up the circumstance one by one. Firstly, the recovery at the instance of accused Javed @ Ziaulhaq. Ld. Addl. PP submitted that in the present case, the police got the information about the commission of offence on 20.06.2007 vide DD no. 8A Ex. PW10/A that a dead body of an Enunch is found lying behind the bus stand, Punjabi Bagh, Delhi, under the trees. Police reached there, it has come in the evidence that deceased was male, but he was working as enunch and that is why, he was keeping the Lady's purse. The accused persons were apprehended on 28.06.2007, when they were near M2K Cinema Hall, Pitam Pura, Delhi. Accused Javed @ Ziaul haq made a disclosure statement Ex. PW4/K, wherein he stated that he can get recovered the purse belonging to the deceased, which he threw in the forest and he also got recovered the same. The purse along with pocket diary, Icard and bottle of perfume is proved as Ex. P3 collectively. The witnesses about the recovery were also examined as PW4 Ct. Jai Parkash, PW9 HC Harender and PW15 Ins. Ram Singh and all of them fully supported each other and corroborated the statements as well as the prosecution case about .......contd.
6 FIR no. 440/07 PS Punjabi Bagh the recovery. The recovery is effected from the forest, which is not frequented by the general public. It was also in the special knowledge of the accused as he himself threw that purse containing the pocket diary, Icard and bottle of perfume, of the deceased. The fact that personal diary and Icard were found in the purse, which clearly shows that it belongs to the deceased. The recovery is on 28.06.2007 i.e. immediately after the commission of offence. Ld. Addl. PP submitted that in view of this fact, the presumption arises that accused persons committed the offence of not only snatching the purse from the deceased, but also murdered him. These circumstances stand proved by the prosecution in view of the testimony of PW4, PW9 and PW15 and this is also inconsistent with any hypothesis of innocence of the accused persons and points towards their guilty.
10. Learned defence counsel submitted that in the present case, information was that the dead body of enunch was found lying in the forest, but later on it revealed that he was a male, as is evident from the testimony of PW1 itself. It creates a doubt about the truthfulness of the story of the prosecution as to whether the deceased was enunch or a male. According to the story of the prosecution, the accused persons were apprehended at about 3.00 pm from M2K, Pitam Pura, Delhi, but no public person was joined, when the .......contd.
7 FIR no. 440/07 PS Punjabi Bagh accused persons were apprehended, despite the fact that they were apprehended from a crowded place, where many public persons were present. Even driver of the qualis, which was a public person and was with the police, was not joined in the investigation. This itself creates a doubt about the truthfulness of the story of the prosecution that the accused persons were apprehended from M2K, Pitam Pura on 28.06.2007. Learned counsel further submitted that in fact the accused Ziaulhaq @ Javed was apprehended much prior to that from cement siding, Shakur Basti, where he used to work as a labour and later on, he was falsely implicated in this case. He did not get recover any articles as deposed by the witnesses. Even at the time of effecting recovery, no public person was joined. There are also many contradictions as according to PW9, the writing work i.e. disclosure statement was done on the spot while standing, whereas PW14 stated that he recorded the disclosure statement of the accused in the police booth. According to PW9, the place from where the purse was recovered was about 3 to 4 km from M2K, Pitam Pura, whereas according to PW4 and PW15, the place was only 400 meters away from the police booth and according to PW15, the police booth was on the spot i.e., on M2K, Pitam Pura. PW15 states that disclosure statement of the accused persons were recorded in police booth and the police booth was at a distance of about 3 and half kilometer from the spot, from where, the accused were .......contd.
8 FIR no. 440/07 PS Punjabi Bagh apprehended. Whereas, PW4 stated that disclosure statements of all the accused persons were recorded while standing on the spot and same is the statement of PW9. Learned defence counsel submitted that keeping in view all these facts that many public persons were there and there are many contradictions in the testimonies of PW4, PW9 and PW15 as to how the proceedings were recorded, the recovery becomes doubtful and that also after seven days of commission of offence. Learned defence counsel submitted that even otherwise, no dust was found on the purse, when it was produced in the Court despite the fact that purse was lying in the bushes for about seven days. This fact clearly shows that it was planted upon the accused persons. The onus, which was on the prosecution, has not been discharged. The circumstance has not been proved beyond doubt and benefit of the same be given to the accused persons and they be acquitted.
11. After hearing the arguments and going through the record, I found that prosecution examined three witnesses about the recovery i.e PW4 Ct. Jai Parkash, PW9 HC Harender and PW15 Ins. Ram Singh, as pointed out earlier. It is also the story of the prosecution that three accused persons were apprehended near M2K Cinema Hall, Pitam Pura, which is admittedly a crowded place. PW9 has also admitted that public persons were available there, but no public .......contd.
9 FIR no. 440/07 PS Punjabi Bagh person was joined. They were travelling in a private car i.e. Qualis and the public person was driving that qualis, even he was not joined in the investigation. After the disclosure statement of the accused, the police officials were knowing that they were going to effect recovery and public persons were also nearby, but at that time also, no efforts whatsoever were made to join any public person. Non joining of the public witnesses though creates doubt, but in my opinion the testimonies of the police officials cannot be disbelieved merely because, no public person was joined. I have gone through the testimony of these three witnesses and I found that the witnesses have contradicted each other about the recovery point. It is important to mention that accused persons were apprehended according to the story, from near M2K Cinema Hall and according to PW4 and PW9, the disclosure statements of the accused persons were recorded on the spot while standing and accused persons were made to sit in the qualis and thereafter, they went to the police booth. From the police booth, they went for effecting recovery and that also on foot. According to PW4, the distance between the booth and M2K Cinema Hall, Pitam Pura, from they were apprehended, was about 2 and 2 1/2 kilometer. According to PW9, they remained at M2K, Pitam Pura for about 2 and 21/2 hours and there the clothes of Hari Ram were seized. According to PW9, disclosure statements are in the handwriting of SI Ram Singh examined as PW15 and according to .......contd.
10 FIR no. 440/07 PS Punjabi Bagh PW15, the documents were in the handwriting of SI Ishwar Singh. He also stated that disclosure statements of the accused were recorded in the police booth, which was at the distance of 3 and half kilometer from the spot, from where the accused persons were arrested. Keeping in view all these contradictions and also the fact that no public witness was joined, I am of the considered opinion that prosecution has failed to establish this fact. Recovery of blood stained clothes of Hari Ram
12. Ld. Addl. PP submitted that when accused Hari Ram was arrested on 28.06.2007, he was found wearing the clothes, which he was wearing at the time of incident and he disclosed this fact in his disclosure statement Ex. PW4/L. Those clothes were seized by the police at the police post and the accused was provided another clothes, which were purchased from a kabari and the clothes were seized vide memo Ex. PW4/M. These clothes were also sent to FSL for analysis and according to report, the human blood was detected, but group of the blood could not be detected. Learned Addl. PP submitted that detection of the human blood on the tracksuit of the accused Hari Ram also shows that he was involved in the commission of offence. There is no explanation as to how the blood came on his tracksuit and baniyan. In fact, this blood fell on the clothes of the accused Hari Ram, when he stabbed the deceased.
.......contd.
11 FIR no. 440/07 PS Punjabi Bagh The recovery of the blood stained clothes from the accused clearly points towards the guilt of the accused and is also inconsistent with any hypothesis of the innocence of the accused.
13. Learned defence counsel submitted that while effecting recovery, no public person was joined and person from whom, the clothes allegedly were taken, has also not been joined in the investigation. Particularly, there is no evidence on record that the blood detected on the clothes of the accused, was of the deceased only. The onus was on the prosecution to establish that blood found on the clothes was of the deceased. Even otherwise, it is something very unnatural that accused will continue to wear the same clothes, even after seven days of the incident and that also with blood stains. In fact, the clothes have also been planted upon the accused in order to implicate him in this case. This circumstance is also not proved and for the sake of arguments, even if it is assumed that clothes were having any human blood on it, that does not point towards the guilt of the accused or that the accused is the person, who murdered the deceased.
14. After hearing the arguments and going through the record, I found that for proving this fact also, there are three witnesses i.e. PW4 Ct. Jai Parkash, PW9 HC Harender and PW15 Ins. Ram Singh.
.......contd.
12 FIR no. 440/07 PS Punjabi Bagh Admittedly, no public person was joined and it is also admitted that public persons were available, but no efforts whatsoever were made to join the public persons. Even, the driver of the vehicle, in which they were traveling was not joined. So far as, the clothes of accused Hari Ram are concerned, it is something unbelievable that the accused would continue to wear the same clothes with the blood stains on it after seven days of the incident and was roaming publically. The person from whom, the clothes were arranged for accused Hari Ram, has also not been examined as witness.
15. The clothes were sent to FSL for analysis and the report has been received, which is Ex. PW11/A. According to the report, blood of human origin was detected on the tracksuit and the baniyan, which the accused was wearing, but group of the blood could not detected. According to this report, blood group of the deceased was 'A'. The onus was upon the prosecution to show that clothes which the accused was wearing, was having the blood of the deceased. The prosecution has failed to proved that blood of group 'A' was found on the clothes of the accused. Even otherwise, simply because some blood was found on the clothes of the accused does not conclusively prove or establish that accused committed the offence and it is also not inconsistent with any hypothesis of innocence of the accused. In view of the above discussion, I am of the opinion that prosecution has .......contd.
13 FIR no. 440/07 PS Punjabi Bagh not been able to establish this circumstance beyond reasonable doubt.
Recovery of Mobile Phone
16. Ld. Addl. PP submitted that accused Sirajuddin in this case was arrested on 05.08.2007 and he made a disclosure statement Ex. PW 4/Q. He also got recovered one mobile phone, which was seized vide memo Ex. PW4/A. She further submitted that this mobile phone was having IMEI no. 354337004139406 and was identified as Ex. P
2. Ld. Addl. PP submitted that this mobile phone belongs to the deceased and recovery of mobile phone at the instance of one of the accused, that also from a place, which was in the exclusive knowledge of the accused, clearly proves the guilt of the accused. Ld. Addl. PP submitted that mobile phone was kept concealed near the railway track under the earth and was dug out by the accused and was given to the police. The fact that mobile phone was got concealed under the earth after wrapping in a polythene, clearly shows the guilty mind of the accused. There is not much time gap from the date of incident and date of recovery and therefore, presumption can safely be drawn that the accused persons were involved in the commission of offence of murder and in fact murdered the deceased Ashu Chaudhary. Prosecution by examining witnesses PW4, PW9 and PW15 has proved the recovery of mobile phone of .......contd.
14 FIR no. 440/07 PS Punjabi Bagh the deceased at the instance of accused Sirajuddin and this circumstance points towards the guilt of the accused and is also inconsistent with any hypothesis of innocence of the accused. It is prayed that accused be held guilty.
17. Learned defence counsel submitted that the onus to establish that mobile phone allegedly recovered at the instance of accused Sirajuddin, was of the deceased, was upon the prosecution, but prosecution has not been able to prove that mobile phone was of deceased. Even the recovery is doubtful. No public witness was joined, though the public persons were available. No document has been placed on record that mobile phone having the IMEI no. 354337004139406 was purchased by the deceased or was belonging to the deceased. None of the witness has stated or deposed that mobile phone Ex. P2 was belonging to the deceased. In the absence of any such evidence that the mobile phone recovered was of deceased, this presumption cannot be drawn that this mobile phone belongs to the deceased. It is prayed that prosecution has miserably failed to establish this fact and benefit of the same be given to the accused persons and they be acquitted.
18. After hearing the arguments and going through the record, I found that the onus was heavy on the prosecution to establish and prove .......contd.
15 FIR no. 440/07 PS Punjabi Bagh that mobile phone Ex. P2 was of the deceased. No such documentary or oral evidence has been adduced by the prosecution to prove that mobile phone was belonging to the deceased. PW2 was the friend of deceased, but the mobile phone was not shown to him to identify whether, it belongs to the deceased. No receipt has been placed or proved on record that it belonged to the deceased. In fact, the record shows that this mobile phone belongs to one Sh. Lalit Parkash as is evident from the document Ex. PW16/B. Sh. Lalit Parkash has also not been examined as witness to prove that he had given this telephone to the deceased or that his telephone was being used by the deceased. In view of all these facts, in my opinion, prosecution has failed to prove that mobile phone Ex. P2 allegedly recovered at the instance of the accused Sirajuddin was of deceased, therefore, I am of the opinion that this circumstance has not been proved and established by the prosecution.
Motive
19. Ld. Addl. PP submitted that in the present case, it has come in the evidence of PW2 that deceased used to tell him that some boys namely Chottey Khan, Babloo, Javed and Raju used to quarrel with him and they used to snatch the earnings from him also sometimes from his customers and on one occasion, he got Chotee Khan beaten from his customer. PW2 also stated that Ashu told him that Chottey .......contd.
16 FIR no. 440/07 PS Punjabi Bagh Khan threatened him that he will teach him a lesson. This incident was of 13.06.2007 and on 20.06.2007, Chotte Khan i.e accused Sirajuddin along with his coaccused committed murder of the deceased. Ld. Addl. PP submitted that there was a strong motive for the accused persons as deceased got beaten one of the accused and they have threatened him to teach him a lesson, which they have done. Ld. Addl. PP submitted that motive has been established and proved by the prosecution beyond doubt by examining PW2. It is prayed that accused persons be held guilty.
20. Learned defence counsel submitted that motive in this case has also not been proved. PW2 is not a witness of any of the incident and it was the deceased, who told him that some boys, whose name he has given, used to snatch his earnings and it was the deceased, who got beaten one of those boys and that boy has also threatened the deceased. This incident of threatening has taken place on 13.06.2007. No police report or complaint was made about the alleged incident of 13.06.2007. PW2 was also not able to identify any of the accused. He has specifically stated that :
"Accused present in the court today are not known to him"
Ld. Defence counsel submitted that therefore, it cannot be said with certainty whether any threat was extended to the deceased by any of the accused persons or the accused are the persons, who .......contd.
17 FIR no. 440/07 PS Punjabi Bagh used to snatch the money/earnings of the deceased were the accused only. Even otherwise, this was not such a provocation or a motive, for which the murder may be committed. It is prayed that prosecution has failed to prove the motive.
21. After hearing the arguments and going through the record, I am of the opinion that it depends upon the facts and circumstances of each case and also upon the psychology of the accused as to what motive would be sufficient for one person to commit extreme offence of murder. Grave provocation may not be sufficient for one person, but for the other, it may be slightest provocation, which may result into the committal of the gravest offence. But, herein in the present case, it is not proved that the persons, who used to snatch the earnings of the deceased, were the accused persons or accused Sirajuddin is the same person, who extended threat to the deceased on 16.03.2007. Even if, it is presumed that deceased got beaten one of the accused that in my opinion does not establish the motive for committing murder.
22. It is well settled principle of law that conviction can be placed even on the basis of circumstantial evidence. It is not required that in every case, there must be an eyewitness or ocular evidence for conviction, but before a person is convicted on the basis of circumstantial .......contd.
18 FIR no. 440/07 PS Punjabi Bagh evidence, it has to be established that all the circumstances are proved and established beyond doubt and the circumstances so established and proved form a complete chain. Each circumstance so established and proved shall point towards the guilt of the accused and must be inconsistent with any hypothesis of innocence of the accused. In the present case, as pointed out earlier, the prosecution intends to prove three circumstances i.e. recovery of the belonging to the deceased at the instance of accused Javed @ Ziaulhaq, but as discussed above, the prosecution has failed to prove and establish that circumstance. The other circumstance, which the prosecution intended to prove was that detection of the blood on the clothes of the accused Hari Ram. This circumstance also has not been established beyond doubt as discussed above. The third circumstance is the alleged recovery of mobile phone of deceased at the instance of accused Sirajuddin, but as discussed above, prosecution has failed to establish this circumstance also. The prosecution has also failed to prove and establish the motive. In my opinion, as chain of circumstances itself is not complete, motive by itself does not make any difference. I, therefore, giving benefit of doubt to the accused persons, acquit them. The accused persons are in custody. They be released forthwith, if not required to be detained in any other case or proceeding.
.......contd.
19 FIR no. 440/07 PS Punjabi Bagh
23. File be consigned to Record Room.
Announced in open Court
on today i.e. 18.03.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE : DELHI
.......contd.