Delhi District Court
State vs . Ramesh & Ors. on 12 May, 2014
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS : Rohini Courts : Delhi
In the matter of :
SC No. 29/13 (Old no. 41/11)
State Vs. Ramesh & Ors.
FIR no. 406/11
PS Narela
U/s 302/395/412 IPC
State
Versus
1. Ramesh S/o Sh.Munna Lal
R/o A-1524, Metro Vihar,
Phase-II, Holambi Klan, Delhi.
2. Uppinder @ Monu
S/o Grish Chand
R/o H.No. A-221, Metro Vihar,
Phase-II, Holambi Klan, Delhi.
3. Kamal Azad S/o Ashrafi Lal
R/o B-2460, Metro Vihar,
Phase-II, Holambi Klan, Delhi.
Date of receipt : 11.11.2011
(Received in this court) : 01.11.2013
Date of arguments : 12.05.2014
Date of announcement : 12.05.2014
JUDGMENT
1. The above named three accused were sent for trial with the case of prosecution that on 15.08.2011 at about 8.30 PM at Kacha Rasta SC no. 29/13 Dtd...12.05.2014 Page 1 of 16 2 (Temporary passage) in the fields of Bhorgarh Village leading to DSIDC, Bhorgarh from Metro Vihar, within the jurisdiction of police station Narela, the three accused, in furtherance of their common intention with three juveniles in conflict with law, committed dacoity and murder of Akil son of Sh. Shakil and thereby committed offence punishable U/s 396/302 r/w 34 IPC. It is also the case of prosecution that at the time of committing dacoity, they voluntarily caused hurt to Mhd. Ansar, the only eye witness of the incident, and thus also committed offence U/s 394 r/w 34 IPC.
2. The story of prosecution unfolds in the statement of Mhd. Ansar. Mhd.
Ansar stated that on the fateful night, he along with deceased Akil left their residence at about 8.15 PM for their factory as they used to work in night shift, from 9 PM to 9 AM. They left their house no. 2011, Metro Vihar, Phase-II at 8.15 PM. Till railway line, the complainant and the deceased were accompanied by Ishtiaq, Aarif and Yusuf. From there the deceased and the complainant crossed the railway line and started proceeding towards DSIDC, Bhorgarh. At about 8.30 PM when they were on the Kacha Rasta, which passes through the fields leading towards DSIDC, and had covered 100-150 meters from the railway line, the complainant noticed 3-4 boys coming from the opposite side. At that time because of rain, there was mud. When those boys came near the complainant and the deceased, suddenly one of the boys pressed the mouth of the complainant. The complainant Mhd. Ansar was holding a tiffin box at that time and he hit the tiffin on the face of the boy who had tried to gag his mouth. The said boy fell down. The other two boys then caught hold of the complainant Mhd. Ansar. The complainant Mhd. Ansar pushed those two SC no. 29/13 Dtd...12.05.2014 Page 2 of 16 3 boys also and started running away from the spot. While running away, he saw that his companion Akil was in the grip of those boys and, Akil had been pull down to the ground. The complainant rushed towards his three friends who had seen them off at the railway line and called them. Thereafter, all of them returned to the place of incident. They found dead body of Akil which, smeared in blood. The assailants however, had fled the spot and were not to be found.
3. On this complaint of Mhd. Ansar, rukka was prepared and dispatched at 11.50 PM and the present case was registered. The investigating officer lifted the blood stains etc. from the spot and during investigation the accused were apprehended. It is necessary to mention here as to in what manner the accused were apprehended. The case of prosecution is that on 19.08.2011, the complainant at about 1.00 PM noticed one of the assailants at Phase-2, Holambi Kalan. He noticed that he was the same boy who had initially caught hold of the complainant and to whom the complainant had given tiffin blow on face. He noticed that boy entering one house. The complainant then went to the police station and informed SI Mohd. Yaqub. SI Mohd. Yaqub and complainant then told about it to the SHO. The police team then raided the house and apprehended Arvind (Juvenile-in-conflict with law). At the instance of Arvind, accused Ramesh was apprehended. Allegedly, Ramesh got the weapon i.e. a knife recovered from roof of his house, and his blood stained clothes were also recovered. Ramesh got arrested the third accused/juvenile Dinesh. Thereafter, the accused got arrested Kamal Azad as well as accused Upender and one more juvenile namely Manoj. Thereby meaning that total SC no. 29/13 Dtd...12.05.2014 Page 3 of 16 4 six assailants were apprehended in the present matter.
4. The three juveniles in conflict with law were tried before the Juvenile Justice Board and were acquitted on 17.1.2012.
5. The remaining three accused before this court were accordingly charged for the above mentioned offences, to which they pleaded not guilty and claimed trial.
6. In support of its case, prosecution examined 18 witnesses, out of which the only eye witness of the incident was examined as PW6 namely Mohd. Ansar. The entire case of the prosecution is primarily based on the testimony of PW6.
6.1. Besides PW6 the other material witnesses examined by the prosecution are; PW18 investigating officer Satish Kumar and PW8 SI Anitesh Kumar. Other witnesses are more or less formal in nature. 6.2. PW1 SI Anil Kumar and PW3 Ct. Hansraj were the members of mobile crime team which reached the spot. PW1 SI Anil Kumar prepared the report Ex.PW1/A after inspection of the spot and PW3 took photographs of the crime scene Ex.PW3/A-1 to A-19.
6.3. PW2 HC Jagdish was the duty officer who registered FIR Ex.PW2/A and made endorsement on rukka Ex.PW2/B. 6.4. PW4 Ajay simply carried the copies of FIR to the senior officers including the Ilaka Magistrate.
6.5. PW5 Badru Hasan identified the dead body of deceased. 6.6. PW9 Ct. Jasvinder carried the exhibits from malkhana to the FSL on 16.08.2011 vide a road certificate.
6.7. PW11 HC Sultan Singh was the malkhana moharrar who proved SC no. 29/13 Dtd...12.05.2014 Page 4 of 16 5 deposition of case property in the malkhana vide Ex.PW11/A to D. 6.8. PW12 Ct. Vijay received the information about the lying of a dead body, which information was recorded in the PCR form Ex.PW12/A. 6.9. PW13 ASI Manohar Lal was the draftsman who took measurement of the spot and then prepared scaled site plan.
6.10. PW15 Ishtiaque, PW16 Aarif and PW17 Mhd. Yusuf, are the three public persons who accompanied the complainant as well as the deceased till up to the railway line before the incident. Then subsequently on hearing cries of the complainant, went to the spot where the body of deceased was found.
6.11. PW7 Dr. V.K.Jha proved the post mortem report of the deceased as Ex.PW7/A and he deposed that after the post mortem of the deceased, he had preserved clothes and blood gauze piece of the deceased, which were sealed with the seal of hospital and handed over to the investigating agency. He deposed that following four external injuries were found on the body of deceased :-
a. Incised wound of size 2.5 cm X 0.5 cm into chest cavity deep placed in third inter costal space 3.5 cm left lateral to left nipple. On dissection it has cut skin, muscles, pleura and left lung upper lobe. Blood and blood clots present.
b. Incised wound of size 3.5 cm X 0.5 cm into chest cavity deep situated in fifth inter coastal space. No visceral organ is damaged. Placed 8 cm obliquely downward to left nipple.
c. Incised wound 2 cm lateral to upper border of sternum on right side in first inter coastal space of size 2.5 cm X 1 cm. It has cut SC no. 29/13 Dtd...12.05.2014 Page 5 of 16 6 skin, muscles, pleura and upper lobe of right lung. d. Incised wound of size 3 cm X 0.5 cm X muscle deep in the mid axillary line. 10 cm right lateral to right nipple of size 3 cm X 0.5 cm X muscle deep;
e. All injuries above having one angle acute and other obtuse.
According to the doctor, injury no. 1 & 3 were sufficient in the ordinary course of nature, either singularly or combined, to cause death and these injuries were ante mortem in nature and were caused by a sharp edged weapon.
6.12. PW10 Ct. Rajender accompanied SI Anitesh to the spot on receipt of DD no. 74. Thereafter, he carried rukka from the spot to the police station. 6.13. PW8 Anitesh deposed that on receipt of DD no. 74B, he reached the spot with Ct. Raj Kumar and found many public persons collected at the spot.
Deceased was lying dead at the spot with stab injuries. He recorded statement of the complainant; prepared rukka and; got the case registered through Ct. Raj Kumar. Meanwhile, the SHO had reached the spot who collected the exhibits from the spot vide seizure memo Ex.PW8/C. Thereafter, he went to get the post mortem of the dead body conducted, and the articles of the deceased i.e. clothes and blood gauze, were seized vide seizure memo Ex.PW8/D. 6.14. PW18 Inspector Satish Kumar the investigating officer deposed that he had collected blood sample gauze piece, blood stained earth, control sample earth, one pair of black colour slippers and one blood stained towel (gamcha) from the spot, after sealing them, vide seizure memo Ex.PW8/C. The witness also deposed that subsequently post mortem of SC no. 29/13 Dtd...12.05.2014 Page 6 of 16 7 the deceased was got conducted and the accused were apprehended one after another, after the initial accused Arvind was apprehended at the instance of complainant. The witness deposed that all the accused were apprehended in the presence of the complainant who identified them. He also proved that from the house of accused Ramesh, at his disclosure, one knife was recovered which was seized after its sketch was prepared and that blood stained clothes of Ramesh were also seized. 6.15. The eye witness Mohd. Ansar PW6, supported the case of prosecution so far as incident is concerned, but the testimony of the witness was dilly dallying regarding identification of the accused and regarding apprehension of the accused. I shall advert to the said facts little later in order to avoid repetition.
7. On completion of prosecution evidence, all the incriminating evidence was put to the accused in their statements U/s 313 Cr.P.C. The three accused generally denied the evidence against them and claimed that they have been falsely implicated. None of the three accused led any evidence on his behalf.
8. I have heard Ld. Prosecutor for the State and Ld. Counsels for the three accused.
9. Admittedly, the accused persons were not apprehended from the spot.
Admittedly, the accused persons were not known to the complainant prior to the date of incident. The incident occurred at night. It has come in the evidence of prosecution witnesses that at the time of incident it was dark. Therefore it was extremely difficult for the witness to have remembered and recollected the identity of the assailants. The assailants were not put SC no. 29/13 Dtd...12.05.2014 Page 7 of 16 8 to Test Identification Parade in the present matter on the ground that the assailants were apprehended at the instance of the complainant. But the testimony of the complainant, the only eye witness Mohd. Ansar, does not support the case of prosecution on this aspect. Though, some of the witnesses tried to suggest that at the time of incident there was moon light, but the fact that the said plea is false, would be clear from the following circumstances, which I shall take up little later.
10. PW6 Mohd. Ansar in his examination in chief deposed that after police arrived at the spot and took photographs, he was taken to the police station for inquiry and his statement Ex.PW6/A was recorded and rukka was prepared in the police station. He deposed that next morning i.e. 16.08.2011 at 4 AM, the police had shown him 6-7 boys in the police station, out of whom he had identified three boys. This fact deposed by the eye witness is in absolute difference to the case of prosecution that the accused were apprehended at the instance of the complainant. In the court, the witness identified accused Ramesh only and deposed that the other two persons shown to the witness and identified by him in the police station were facing trial before Juvenile Court. The witness again deposed that on 16.08.2011 at the police station, all the three boys were identified by him and he had signed certain blank papers in the police station. When he was questioned whether besides Ramesh, other accused were present in the court, the witness, in his deposition dated 14.03.2012, deposed that they were not present. The witness also deposed that only one purse of Akil was recovered from one of the SC no. 29/13 Dtd...12.05.2014 Page 8 of 16 9 accused whose name he does not remember and who was not present in the court. He was also categorical in deposing that no other recovery of any other article was effected from any other accused. When arrest memos, personal search memos of the accused were shown to the witness, he said that he signed those documents in the police station. Regarding recovery of knife, he deposed that he was informed by the police later on that one knife was recovered at the instance of accused Ramesh.
11. The witness was declared partially hostile by the prosecution and was cross examined by the Ld. APP for the State. He denied that his statement Ex.PW6/A was not recorded at the police station or was recorded at the spot. He also denied that when he along with his friends returned to the spot in search of Akil, they found dead body of Akil. Instead he deposed that they could not found Akil and then they went to factory of Akil, where also Akil was not found, and then one chowkidar called the police and thereafter they along with the police reached the spot of incident and thereafter the dead body of deceased was found. When the Prosecutor suggested the witness that the assailants were not shown by the police to the witness in the police station, the witness specifically denied the suggestion. He denied that the assailants were apprehended on his identification. In the subsequent deposition dated 30.05.2012, although he identified other two accused also, besides Ramesh, claiming that he did not identify them on the earlier date because those two accused were looking at him and he got terrified, but he was categorical in deposing that none of the assailants was apprehended at his instance and no weapon of SC no. 29/13 Dtd...12.05.2014 Page 9 of 16 10 offence was recovered in his presence. He categorically deposed that he was shown the assailants in the police station the next morning.
12. Besides the eye witness, the only witness examined by the prosecution qua apprehension of the accused and recovery, is the investigating officer. Thus, there are two witnesses examined on the point of apprehension and recoveries, but both the witnesses have given absolutely different versions. There is no reason for the eye witness PW6 to not support the case of prosecution qua apprehension and recovery. If the assailants were shown to the witness in the police station on the very next day, it has to be held that test identification parade of the assailants was required but not got conducted.
13. It has come in the evidence of PW15 Ishtiaq, PW-16 Aarif and PW17 Yusuf that at the time of incident, it was dark. PW15 Ishtiaq deposed that there was no source of light and it was dark at the place of incident. Aarif also deposed that it was too dark when they reached near dead body. Initially Anitesh also deposed that there was no source of light at the spot and torches were brought by the police. However, the re-examination of this witness was got deferred by the Prosecutor till further examination of the investigating officer and the witness was re-examined on 22.08.2013, when he admitted the suggestion of the prosecution that there was moon light at the spot and everything was visible. First of all, the said re- examination of the witness was improper, since, there was no ambiguity which had come in the testimony of this witness for which he could have been re-examined. Anyhow, the claim of SI Anitesh and Mohd. Ansar that there was moonlight is belied from the testimony of other three public SC no. 29/13 Dtd...12.05.2014 Page 10 of 16 11 witnesses as well as Ct. Raj Kumar who had accompanied SI Anitesh and Ct. Hansraj who took the photographs of the crime scene. Ct. Hansraj deposed that there was no street light. Ct. Raj Kumar also deposed that it was dark and there was no street light at the spot. These facts indicate that at the time of incident, the light was insufficient for the eye witness to have clearly and specifically identified the assailants. One can understand that a person can identify his known persons in a moon light, but particularly strangers cannot easily be identified in moon light unless the incident took sufficient time. In such circumstances, it was extremely important that the assailants ought not to have been shown to the witnesses in the police station, but unfortunately they were shown to the only eye witness. The said fact alone demolishes the case of prosecution qua identity of assailants.
14. Though in the present case, witness Mohd. Ansar claimed that it was moon light on the date of incident, but when he appeared as a witness before the Juvenile Justice Board, he specifically deposed that there was no source of light and that it was dark. In such circumstances, identity of the accused by the witness in the court cannot be relied upon.
15. In holding so, this court has one more reason. In the initial rukka, the complainant stated that 3-4 boys were assailants, but then the story was improved and total six persons were named in the case. When the complainant was not even in a position to even correctly count the number of assailants, how far his identification of the accused in the court can be believed, is anybody's guess.
16. Even in his testimony as PW6, Mhd. Mohd. Ansar deposed that the SC no. 29/13 Dtd...12.05.2014 Page 11 of 16 12 assailants were 3-4 boys, yet total six persons were charge sheeted, i.e. three before this court and three before Juvenile Justice Board.
17. There are other facts which create doubt about the presence of Mhd.
Ansar at the time of incident. Ex.PW1/A is the report submitted by the Incharge of Crime Team who inspected the crime scene between 11 PM to 11.40 PM. The date and time of occurrence mentioned in this report is between 8.30 PM to 9.30 PM on 15.08.2011. The name and address of the complainant recorded in this document is "through control room". In the list of exhibits collected from the spot, there is no mention of any tiffin whatsoever, in this report. If complainant hit one of the assailants with the tiffin, what happened to the tiffin is unanswered. No tiffin was found at the spot. The tiffin was never produced in the court. Had Mhd. Ansar been present at the spot at the time when the Crime Team inspected the spot between 11 PM to 11.40 PM, the time of occurrence which should have been mentioned should have been 8.30 PM. As per Mhd. Ansar, incident occurred at 8.30 PM. There was no occasion for the time of occurrence to have been mentioned as 8.30 to 9.30 PM. If Mhd. Ansar was present at the spot, his name should have figured in the report instead of the control room. These facts create a reasonable suspicion as to whether Mhd. Ansar actually witnessed the crime. Mhd. Ansar did not inform the police about the incident as per the PCR form Ex.PW12/A. The information was given by somebody that at the spot one dead body of a girl aged 16 to 17 years was lying. The informer did not identify him and did not tell his telephone number. This information was recorded in the PCR as late as at 9.31 PM. Had Mhd. Ansar witnessed the crime at 8.30 PM and had he SC no. 29/13 Dtd...12.05.2014 Page 12 of 16 13 gone running to seek help from his friends for few hundred meters, and then returned to the spot with his friends, the information should have reached the police latest by 9 PM. In the information, there was no occasion to have mentioned that dead body of a girl was lying at the spot. The fact that neither Mhd. Ansar nor his three friends informed the police, creates a reasonable suspicion as to whether Mhd. Ansar actually witnessed the crime. The PCR form Ex.PW12/A records that a large number of public persons were present at the spot who were not allowing the body to be removed. The complainant was even shown the knife in the police station.
18. In Ex.PW1/A, there is one more aspect i.e. advise given to the investigating officer of the case by the Crime Team. What is recorded is of extreme importance. It is mentioned therein that the investigating officer was advised to examine the person who have lastly seen the deceased and to examine the friends of the deceased. Had the complainant been present at the time of inspection by the Crime Team, there was no occasion for the crime team to have mentioned that the person who was lastly seen with the deceased should be examined. Ex.PW1/A nowhere finds mention the name of Mhd. Ansar. Therefore, it appears that till up to 11.40 PM when this report was submitted, Mhd. Ansar was not present at the spot. This fact co-incides with the time of dispatch of rukka which is recorded at 11.50 PM.
19. As per PW15, 16 and 17 when Mhd. Ansar came back running, he told different number of persons as assailants. To Ishtiaque 6-7 persons were told as assailants. To Arif, 5-6 persons were told as assailants, and to SC no. 29/13 Dtd...12.05.2014 Page 13 of 16 14 Yusuf, six persons were told as assailants. When the only eye witness was not even in a position to see the actual number of assailants, then his identification of the accused in the court would not be safe to base conviction. It is a case of murder, where punishment can extend to sniffing out somebody's life and therefore, extremely cogent and convincing evidence is required before conviction can be based. I do not find it safe to rely upon the testimony of Mhd. Ansar, particularly qua the identification, apprehension and recovery from the accused. It would not be safe to base conviction in such circumstances and benefit of doubt has to go to the three accused.
20. Though, in the FSL result, blood has been detected on the knife allegedly recovered at the instance of accused Ramesh, but as I have mentioned above, not only the witness from public did not support this fact of recovery, but he even claimed that the knife was shown to him in the police station. It indicates that the knife was not sealed at the place of recovery, and therefore, even that fact cannot be read in favour of the prosecution. Similarly, the fact of recovery of blood stained clothes of accused loses significance because of sheer callous investigation of the present case. Mohd. Ansar did not see any knife at the hands of assailants at the spot. In the cross examination, he pointed out towards accused Kamal as the person who had gaged his mouth and to whom he hit by tiffin, whereas, as per the case of prosecution, the first assailant arrested in the matter i.e. Arvind was the person who had gaged this witness and was hit by tiffin.
21. There is a serious doubt as to where statement of the complainant was SC no. 29/13 Dtd...12.05.2014 Page 14 of 16 15 recorded on which the present case was registered. Mhd. Ansar deposed that he had told the police in his initial statement that six boys were involved in the incident, whereas, in the rukka only 3-4 boys are mentioned. In his subsequent cross examination, he admitted that he saw only 3-4 persons as assailants and those 3-4 persons were also seen by him before the Juvenile Court. He denied that he accompanied house of any assailant or that recovery of blood stained clothes of any assailant was effected.
22. Even SI Anitesh in his cross examination stated that he cannot say how many public persons were present at the spot as it was dark at spot and that writing work was done with the help of torch. Though, SI Anitesh claimed that one tiffin was lying at the spot but no such tiffin has seen the light of day. SI Anitesh even said that there was grass at the spot but the height of grass was not such as to preclude anybody from noticing the dead body of the deceased whereas Mhd. Ansar claimed that there were tall grass at the spot due to which they could not find the body till the arrival of the police. Against the version of Mhd. Ansar that they initially could not find the dead body and then went to the factory of deceased and then found the body with the help of police, PW16 Aarif deposed that they found the body of deceased easily. PW15 Ishtiaq and PW17 Yusuf also deposed that Mhd. Akil was found smeared in blood on reaching the spot with Mhd. Ansar. Investigating officer denied that any of the accused was apprehended on 16.08.2011. He maintained the stand that all the accused were apprehended on 19.08.2011 and that the accused were apprehended at the instance of complainant.
SC no. 29/13 Dtd...12.05.2014 Page 15 of 16 1623. As mentioned above, even the manner of apprehension of accused and the manner of recovery of weapon and purse of deceased is extremely doubtful in view of the testimony of the only public witness Mohd. Ansar.
24. The crux of the above discussion is that benefit of doubt has to go to the accused persons and all the three accused namely Ramesh, Uppinder @ Monu and Kamal Azad are acquitted of the charges.
Announced in the open court on 12th day of May, 2014. Dig Vinay Singh ASJ/Spl. Judge : NDPS N-W/Rohini Courts/Delhi SC no. 29/13 Dtd...12.05.2014 Page 16 of 16