Delhi District Court
Briefly Stated The Facts Of The Case Are ... vs . on 2 August, 2011
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 725/06
FIR No. : 232/06
P.S. : Jahangir Puri
U/s : 302 IPC
Date of registration : 28082006
Reserved for Judgment on: 30072011
Judgment Announced on : 02082011
State
Vs.
Narender Bhatia @ Nonu
S/o Sh. Bhim Sen Bhatia
R/o A 1498, Jahangir Puri,
Delhi.
JUDGMENT
1. Briefly stated the facts of the case are that in the night of 16042006, on receiving DD No. 37 A, SI Vijay Singh alongwith constable Subhash reached at B.J.R.M. Hospital and obtained the MLC of injured Manjeet Singh @ Bunty who was found admitted there in injured condition. Doctor declared the injured unfit for statement on the MLC. During the treatment injured Contd....
2Manjeet expired.
2. In the hospital Daljeet Singh, brother of the deceased Manjeet Singh @ Bunty met SI Vijay Singh alleging himself to be the eye witness of the incident. SI Vijay Singh recorded the statement of Daljeet Singh, prepared the ruqqa on the same and sent the ruqqa to the police station through constable Subhash for the registration of the case.
3. F.I.R. bearing No. 232/06, was registered at P.S. Jahangir Puri. Thereafter investigation went underway. During investigation accused was arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
4. On 13/04/2007, a charge U/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove the guilt of the accused, the prosecution examined as many as 19 witnesses.
6. PW 1 Smt. Baljinder Kaur and PW 3 Daljeet Singh are the material public witnesses who are respectively the mother and Contd....
3brother of the deceased whose testimony I will discuss in the later part of the judgment.
7. PW 2 ASI Dharam Pal is the duty officer. He proved on record the copy of the FIR as Ex. PW 2/A. He also recorded DD No. 3 A and 5 A and proved on record the copy of the same as Ex. PW 2/B and Ex. PW 2/C. He also proved on record the departure entry of Ct. Sri Bhagwan as made in DD No. 5 A as Ex. PW 2/C.
8. PW 4 constable Ramesh Chand was the member of the crime team. He took the photographs of the place of occurrence from different angles. He proved on record the five negatives as Ex. PW 4/A1 to A5 and the positives as Ex. PW 4/B1 to B5.
9. PW 5 is Dr. Neeraj Chaudhary. He proved on record the MLC of Manjeet Singh @ Bunty as Ex. PW 5/A and identified the handwriting and signatures of Dr. Alok at point A and Dr. S.K. Sharma at point B on the same.
10. PW 6 is Satish Kumar. He deposed that in the year 2006 when he alongwith his friend Rajender Sharma were coming in the gali after taking meal at their house and when they were present in the gali at A Block, Jahangir Pouri near the park, they found one person lying in injured condition and was Contd....
4unconscious and 34 persons were standing there. He alongwith his friend Rajender Sharma removed injured Bunty from spot to BJRM hospital in a TSR hired by them from the road. He further deposed that the name of the injured was revealed as Bunty at the spot, however he was residing in gali No. 1400 wali, A Block, Injured had not disclosed anything to him on the way to BJRM Hospital as he was unconscious. He further deposed that he did not know any person in the name of Daljeet nor he met him at the spot at the time of the incident.
11. This witness did not support the case of the prosecution on certain aspects and was declared hostile and cross examined by the Ld. APP for the state.
12. PW 7 H.C. Umed Pal Singh remained associated with the IO during the investigation of the case. He unfolded the sequence of investigation done by the IO. Accused was interrogated, arrested and his personal search was taken in the presence of PW 7. PW 7 also deposed that accused was interrogated and made his disclosure statement which he proved as Ex. PW 7/A. He also proved on record the pointing out memo of place of occurrence which was prepared at the pointing out of the accused as Ex. PW 7/B. He also deposed that accused got Contd....
5recovered a blood stained knife from the garbage lying in the park and PW 7 proved on record the sketch of knife prepared by the IO as Ex. PW 7/C. The knife was taken into possession vide memo Ex. PW 7/D. PW 7 further deposed that accused Narender Bhatia handed over his blood stained Tshirt which he was wearing at that time after removing the same from his person to IO which was sealed by the IO and taken into possession vide memo Ex. PW 7/E. PW 7 identified the case property i.e. knife as Ex. P1 and Tshirt of accused as Ex. P2.
13. PW 8 SI Mata Din is the incharge mobile crime team. He deposed that on 17042006, on the request of the IO SI Vijay Singh he alongwith the member of mobile crime team visited the place of occurrence. He inspected the place of occurrence, prepared his report at the spot and handed over the same to the IO. He proved on record his detailed crime team report as Ex. PW 8/A.
14. PW 9 is constable Subhash Chand. He deposed that on 17042006, he was posted at PS Jahangir Puri and on that day DD entry No. 37 A was marked to SI Vijay Singh for necessary action. He alongwith SI Vijay Singh reached BJRM Hospital where injured Manjit Singh @ Bunty was found admitted who Contd....
6lateron expired. PW 9 further deposed that in the hospital Daljit Singh met with the IO and told him that he is the brother of deceased. IO recorded his statement and prepared the rukka on the same. PW 9 took the rukka to PS Jahangir Puri for the registration of the FIR. After the registration of the case duty officer handed over original rukka and copy of FIR to him and he handed over the same to IO in the hospital. PW 9 further deposed that the dead body was removed to BJRM Mortuary in his custody. IO prepared inquest proceedings and thereafter the postmortem on the dead body of the deceased was conducted and the dead body of the deceased was handed over to his relatives vide receipt Ex. PW 3/D. After the postmortem doctor handed over two pullandas and one sample seal sealed with the seal of BJRM Hospital, Delhi FMT to him and he handed over the same to IO which was taken into possession by him vide memo Ex. PW 9/A.
15. PW 10 H.C. Ajay Kamal is the MHC (M). He deposed about the deposit of 7 pullandas by the IO in the Malkhana on 17042006, and proved on record the relevant entries in this regard in register No. 19 as Ex. PW 10/A. He further deposed that on 29052006, Inspector Rohtash Singh received on sealed Contd....
7pullanda sealed with the seal of RS containing the weapon of offence to obtain opinion from doctor and after obtaining the opinion from the doctor, Inspector Rohtash Singh deposited the said pullanda sealed with the seal of FMT, BJRM Hospital and he made entry in register No. 19 in this regard. He further deposed that on 31052006, all the 7 exhibits in sealed condition along with one sample seal were sent to FSL, Delhi vide RC No. 91/06 through constable Jagdish and he made entry in register No. 19 in this regard. He further deposed that on 06112006, exhibits alongwith the FSL result were received from FSL sealed with the seal of FSL and the entry in this regard was made by H.C. Suraj Bhan who had took charge from him as MHC(M) and he proved on record the same entry as Ex. PW 10/B. He also proved on record the copy of the road certificate as Ex. PW 10/C.
16. PW 11 is Amrik Singh. He deposed that on 17042006, he went to BJRM Hospital Mortuary alongwith Daljeet Singh where he identified the dead body of Manjeet Singh @ Bunty - his nephew (Bhanja) lying in mortuary. IO recorded his statement in this regard as Ex. PW 11/A.
17. PW 12 is constable Shri Bhagwan. He deposed that on 1742006, he received the special report of this case at about Contd....
82:40 a.m in sealed envelop and delivered the same at the residence of Ld MM, Joint CP, DCP, North West.
18. PW 13 is H.C. Dev Raj Singh who on the night intervening 16/17.04.2006 was posted at PS Jahangir Puri and was on duty at BJRM hospital as duty constable from 8:00 p.m to 8:00 a.m. He gave the information to P.S. Jahangir Puri regarding the admission of injured Manjeet @ Bunty in the hospital vide DD No. 37 A and later on when at about 11:45 p.m injured Manjeet @ Bunty was declared dead by the doctor PW 13 again gave the information to PS Jahangir Puri in this regard vide DD No. 38 A.
19. PW 14 constable Jagdish deposed that on 31052006, on the direction of the IO Inspector Rohtash Singh he received seven pullandas and two sample seal alongwith FSL form from MHMC(M) PS Jahangir Puri vide RC No. 91/21/06 and deposited the same at FSL and after depositing the exhibits he handed over the copy of RC to MHC(M) on the same day.
20. PW 15 H.C. Tej Pal was working as duty officer on 16042006, at P.S. Jahangir Puri. He recorded DD No. 37A and DD entry No. 38 A and proved on record the true copies of the same as Ex. PW 15/A and Ex. PW 15/B respectively.
Contd....
9
21. PW16 SI Manohar Lal is the draftsman. He prepared the scaled site plan of the place of occurrence which he proved as Ex. PW 16/A.
22. PW 17 retired SI Vijay Singh is the first IO of the case. He unfolded the sequence of investigation done by him. He prepared the rukka and had got the case registered. He proved on record the same as Ex. PW 17/A. He also proved on record the seizure memo containing blood stained clothes of the deceased as Ex. PW 17/B.
23. PW 18 is Dr. Anil Shandil who conducted the postmortem on the body of Manjeet Singh @ Bunty (since deceased). He proved on record the postmortem report as Ex. PW 18/A. He also gave subsequent opinion, and proved on record the same as Ex. PW 18/B.
24. PW 19 is Inspector Rohtash Singh. He is the IO of the case. He unfolded the sequence of investigation done by him. He proved on record site plan as Ex. PW 19/A, inquest proceedings and brief facts of the case as Ex. PW 19/B (collectively). He completed the charge sheet and filed the same in the Court.
25. After the closing of the prosecution evidence statement of accused U/s 313 Cr.P.C was recorded and incriminating evidence Contd....
10was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated in this case. No evidence in defence was led by the accused.
26. I have heard Ld. APP for the state, counsel for the accused and have also gone through the records of the case.
27. It is urged by the Ld. APP that on the basis of the evidence recorded and the material available on record, accused be convicted. It is further urged that the entire case rests on the testimony of eye witness Daljit which is believable, cogent and trustworthy and there is no reason to disbelieve this eye witness.
28. On the other hand, it is urged by the Ld defence counsel that the eye witness Daljit is a planted witness and he has not witnessed the incident. It is further urged that there are material contradictions in the testimony of public witnesses as well as the official witnesses. It is further urged that the knife has been planted upon the accused and the prosecution has failed to prove the case against the accused.
29. The points which arises for consideration are :
(a) Whether Daljeet (brother of the deceased) is the eye witness of the incident and how far his testimony is reliable and what was the motive behind the murder of Manjeet @ Bunty ?
Contd....
11
(b) What is the effect of contradictions in the testimony of the witnesses on the case of the prosecution?
(c) Whether the recoveries are believable or not?
(d) Result ?
30. My observations with reasons on the above points are as follows: Point (a) Whether Daljeet (brother of the deceased) is the eye witness of the incident and how far his testimony is reliable and what was the motive behind the murder of Manjeet @ Bunty ?
The case of the prosecution rests of the testimony of Daljeet who is the alleged eye witness of the murder of his brother. The evidence of PW 1 Smt. Baljinder Kaur and the evidence of PW 3 Daljeet Singh is relevant in this regard.
According to PW 1 her deceased son and Sonia sister of the accused were in love affair with each other and her son wanted to marry Sonia, sister of the accused. She has further deposed that her son Manjeet had told her that accused was extending threats of life to him on this score.
PW 1 has further deposed that on 1662006, at about 11 / 11:30 p.m the incident had taken place which according to her Contd....
12was witnessed by her younger son Daljeet. She further deposed that two persons of the locality came running to her house and informed her about the incident. She further deposed that she reached the spot and found her son Manjeet @ Bunty in injured condition and bleeding and her son Manjeet told her that he was stabbed by accused Narender @ Nonu. She further deposed that her son Manjeet @ Bunty was repeatedly crying "NONU NE MUJHE CHAKU MARA".
The other material witness is PW 3 Daljeet Singh, brother of the deceased who according to the prosecution was with his brother Manjeet @ Bunty when he was stabbed by accused Narender Bhatia. PW 3 has deposed that on 1642006, at about 10:45 p.m he alongwith his brother Manjeet had gone out of the house for a stroll and when they were standing near a park and were talking, in the meantime, accused Narender Bhatia @ Nonu came there.
He further deposed that at that time he and his brother Manjeet were inside the park and accused Narender Bhatia was outside the park. He further deposed that accused Narender Bhatia called his brother who went to him. He further deposed that accused and his brother started talking which developed into arguments Contd....
13and then accused took out a knife and stabbed his brother on his chest.
PW 3 further deposed that he rushed towards his brother so as to apprehend accused Narender Bhatia but he ran in a gali. He further deposed that his brother walked a few steps and fell down near house No. A1670. According to PW 3 his brother was bleeding profusely and there was blood on his clothes and on the ground. He further deposed that he raised hue and cry. Some neighbours came there and they started moving his brother to the hospital. He has further deposed that he rushed to his home to inform his mother and to arrange money and after collecting money from his house he came out of his house and he was told that his brother was taken to BJRM hospital so he reached there.
His statement was recorded by SI Vijay Singh at about 12:30 a.m which is Ex. PW 3/A. He has also deposed that his brother Majeet @ Bunty was in love with the sister of accused Narender Bhatia and they wanted to marry but accused was against this marriage. He further deposed that on one occasion accused had even threatened that he would kill Manjeet.
Apart from stating on the facts, he has also stated about the other proceedings done by the police in his presence like Contd....
14collecting of exhibits, collecting of dead body, arrest of the accused, preparation of site plan.
Now from the documents on the record and other evidence in the form of testimony of the witnesses and also keeping in view the conduct of PW 3 it is to be seen as to whether he is the eye witness of this case and telling the truth.
The first document prepared in this case is the MLC No. 19470 Ex. PW 5/A of deceased Manjeet Singh. According to the MLC Manjeet was admitted in the hospital on 1642006 at about 11:10 p.m and as per the MLC he was brought by Rajinder Sharma S/o Ram Kishan R/o B799, Jahangir Puri. MLC only talks about the alleged history of assault and it is silent with regard to the name of the assailant or role of the assailant.
After the preparation of the MLC the next document which was prepared was DD No. 37 A which is Ex. PW 15/A. According to this DD the duty constable posted at BJRM hospital reported the matter at about 11:35 p.m that one Manjeet Singh injured in a fight has been admitted by Rajender Sharma and Satish. Another DD No. 38 A dated 1642006 Ex. PW 15/B was recorded at 11:45 p.m which is regarding the death of Manjeet Singh.
Contd....
15These three documents were prepared within a span of 30 minutes of the admission of the injured in the hospital. Till the time, these three documents were prepared, there was no trace of PW Daljeet Singh, though he has stated that he reached the hospital at about 11:15 p.m. / 11:30 p.m. PW Daljeet Singh has deposed that he has raised hue and cry when his brother was stabbed and neighbours gathered there and took his brother to the hospital. As per the record of the case the injured was removed to the hospital by Rajinder and Satish but it is not understood as to why PW Daljeet has failed to name the above said two persons who were responsible for taking his injured brother to the hospital when he is saying that neighbours took his brother to the hospital. PW Daljeet is claiming himself to be the eye witness but it is quite surprising that instead of taking his brother to the hospital, he ran towards his house to collect money rather in such a situation the immediate reaction of such a near relative is to immediately remove the injured to the hospital without caring for anything else.
As per PW Daljeet many neighbours had gathered at the spot and if money was the only consideration, he could have definitely asked the neighbours present there to inform his mother Contd....
16about the incident and ask her to come to the hospital with money. But he did not do so and left his brother in a serious condition at the mercy of other persons.
The conduct of PW Daljeet is really startling, neither from the hospital nor from the spot he had taken any steps to inform the police and it was only after the death of Manjeet when the doctor handed over the death summary of Manjeet to SI Vijay Singh, then PW Daljeet told SI Vijay Singh that he is the brother of the deceased and an eye witness to the incident.
The presence of Daljeet Singh at the spot further becomes doubtful because had he been there in the hospital, he would have met the doctor or the duty constable in the hospital to inform about the incident and the assailant and to inquire about the condition of his brother but that is not so. According to PW 3 Daljeet he had reached the hospital at about 11:15 p.m / 11:30 p.m. and SI Vijay Singh according to Daljeet had reached the hospital after about 1 hr. / 1 ½ hrs. of his reaching the hospital. But there is nothing on record to show as to what Daljeet kept on doing during this 1 hr. / 1 ½ hrs when he must have definitely come to know that his brother had expired. Even at that juncture he had not taken any steps to inform the police about the incident from his own side.
Contd....
17The incident had occurred at about 10:45 p.m and the FIR was registered at 1:35 a.m after about more than 2 and a half hours. PW 3 Daljeet Singh who is the brother of the deceased had not made any complaint to the police when the police station is hardly 500 yards from his house. The conduct of this witness has been quite abnormal and throws a serious doubt about his presence at the time of the incident.
In Shankar & Others Vs. State (NCT of Delhi), 2010 (3) JCC 2067 it was held as follows :
"Penal Code, 1860Section 302/449 R/w Section 34Benefit of doubtthe conduct of eye witness being mother and wife of deceased in (i) not raising an alarm either in the presence of accused or after they had left. (ii) not making any attempt to take deceased to Doctor ot to call the Doctor to attend him and (iii) not reporting matter to close relatives or any other neighbour and police, is a strong indicator that they had not witnessed the incident as claimed by them accused entitle to benefit of doubt as there is also no other evidence to connect the appellant Contd....
18with murder of the deceased."
"Evidence Act, 1872, No doubt post incident conduct varies from person to person and different person may react differently in similar situation - the conduct of the witness can be termed as unnatural when the reaction demonstrated by his is so improbable or so inconceivable, that it can not expected from an human being placed in the situation, in which he was placed. But the conduct is so strange and unnatural that no person is likely to act in the way, he is found to have acted, it will be totally unsafe to make his testimony the sole basis of conviction for a serious offence such as murder."
PW Satish has stated that he remained in the hospital for about 2 hours and the record shows that he alongwith one Rajinder had reached the hospital alongwith the injured at about 11:10 p.m meaning thereby he was in the hospital till 1:10 a.m on 1742006, and by that time neither the police nor any person related to the injured met him, further it is the case of PW 3 Daljeet that some neighbours were shifting his brother to the hospital and it is highly Contd....
19improbable that Daljeet would not know the name of his neighbours. Daljeet had not even stated that PW Satish and Rajinder had met him in the hospital which is again highly improbable because Satish and Rajinder belong to the same locality and they were the one who had admitted Manjeet in the hospital. PW 3 Daljeet had also reached the hospital at about 11:30 p.m. According to PW Satish he was in the hospital with Rajinder for about 2 hrs. from the time of admission of Manjeet in the hospital. Meaning thereby PW Satish and Rajinder must have been inthe hospital till about 1 / 1:15 p.m. Now according to PW Daljeet he also reached the hospital at about 11:30 p.m and remained there till 3:00 a.m. It is surprising that three of them never met each other in the hospital which further creates a doubt about the presence of Daljeet. Moreover, it is not in dispute and is admitted case of the prosecution that the injured was removed to the hospital by PW Satish and Rajinder.
According to PW 3 Daljeet after the incident after three four minutes he rushed back to his home to inform his mother and bring money and when after taking money he came out of the house, somebody told him that his brother had been removed to BJRM hospital so he went to BJRM hospital. PW 1 who is the mother of PW 3 does not say that PW 3 had told her that Manjeet Contd....
20had been stabbed by accused Narender Bhatia but according to PW 1 she was informed about the incident by two persons of the neighbourhood. PW 3 Daljeet has also stated that after remaining at the spot for about 3 - 4 minutes he has rushed to his house but he has not uttered a single word regarding his meeting with his mother PW 1 one the way or in the house. There is a total silence on this aspect.
According to PW 1 she has reached the spot where she found her son Manjeet lying in injured condition and saying that "Nonu ne mujhe chaku mara". She has been confronted on this aspect with her statement Ex. PW 1/DA where it was not so recorded further she has made improvements on her statement given by her to the police and is not a reliable witness.
PW 3 Daljeet could not pin point the place of stabbing. He has deposed that his brother Manjeet had walked a few steps and fell down near house No. A1670 but it is not clear from which direction the deceased walked a few steps. There is no such point in the site plan. Point 6 in the rough site plan Ex. PW 19/A shows drops of blood towards east as stated by PW 19 who has further deposed that deceased had travelled about 10 to 12 steps after receiving the injuries towards east side but PW 3 Daljeet has clearly Contd....
21stated that after receipt of injury Manjeet sat at point "B" and had not stated that Manjeet took 1012 steps towards east. The perusal of site plan Ex. PW 19/A shows that point "B" is the place where the alleged stabbing incident took place and also depicts the place where the injured sat down after receiving the stab injuries. This point is in front of house No. 1670 and from point "B" blood drops are shown in the site plan which goes up to a certain distance and thereafter cluster of blood drops is shown in the site plan. This is not explained by the prosecution as to how the cluster of blood drops is appearing on a particular point in the site plan, when it is the case of alleged eye witness PW 3 that after taking few steps after receiving the stab injuries the injured fell down near house No. 1670. This also goes to show that Daljeet is not aware about the actual position of Manjeet and the prosecution has also not explained about the blood drops appearing at point 6 in the site plan.
In the instant case, the brief facts were prepared at 10:00 a.m on 1742006. PW 3 Daljeet has deposed that on 1742006, at about 10:00 a.m he reached mortuary BJRM hospital where Inspector Rohtash had prepared the document concerning the dead body. He has further deposed that he was present when Contd....
22brief facts Ex. PW 19/B were prepared. In the brief facts, there is no mention about the name of the assailants, role played by the assailants, as to who had lodged the FIR and who witnessed the occurrence. The inference which can be drawn is that up to 10:00 a.m on 1742006, Daljeet PW 3 was not aware about the assailant nor the IO was in the knowledge of presence of Daljeet and the assailants.
In Sonu Arora Vs. State (Delhi), JCC 2010 (3) 2354, it has been held as follows:
"Penal Code 1860 Section 302 benefit of doubt there is no explanation for the absence of any role to the appellant in the brief facts prepared by IO despite the case of the prosecution that the statement of eye witness had been recorded before brief facts were prepared - there is no other evidence against the appellant - Thus given benefit of doubt and hereby acquitted."
PW 3 Daljeet has stated that there was blood on the cloths of the deceased. He has stated in his cross examination as follows "I was holding my brother Manjeet while I was present at the Contd....
23spot for 34 minutes, my clothes were not blood stained while blood was oozing from the body of the deceased". He has further stated in his cross examination that "my brother was bleeding profusely from the injuries" and has also stated in his cross examination that he was holding his brother. Now when his brother was bleeding so profusely how it is possible that the clothes of PW 3 Daljeet did not get stained by even a single drop of blood. This also throws a serious doubt about his presence at the spot. As already discussed herein above the conduct of PW 3 Daljeet is beyond comprehension. Reliance can be placed upon Pintoo Vs. State 2010 (2) JCC 1286 in which it was held as follows "Penal Code, 1860Section 302 Benefit of doubtEyewitnessConduct of the persons who claims to be the eyewitness They quality of evidence lead by the prosecution and the testimony of eye witness has failed to reach the standard of proof required at a criminal trialWhen the testimony of eye witness shows his courage to apprehend the assailant, this is unbelievable vis a vis his conduct of not reporting the Contd....
24matter to the police immediately which was available at a mere distance of 500 meters, a serious doubt in his testimonybenefit of doubt given to appellant whose false implication is within the realm of possibility."
Reliance can also be placed upon State Vs. Shibbu 2010 (2) JCC 1145, DHC in which it was held as follows : "Penal Code, 1860 Sec. 302Murder caseEye WitnessSuspected conduct of - He reported to the police the day after the crime was committed - His contemporaneous conduct of not shouting for help or to take his cousin to the hospital, coupled with the fact that he surfaced next day morning, makes it highly improbable that he was present at the spot as claimed by himPW1 being the cousin of the deceased, could possibly be planted or he voluntarily planted himself - his testimony does not inspire confidence."
The counsel for the accused had time and again during Contd....
25the course of the arguments stressed that PW 3 was not the eye witness and he is the planted witness and best bet for the prosecution to solve the murder of his brother. He further urged that the special report was not sent to MM as full facts were not known to the police. He further urged that by the time of recording of the quayami DD full facts of occurrence were not known to the IO. He relied upon Jagjit Singh Vs. State 1990 (2) CCC 197 ( High Court) wherein it was held as follows : "Penal code1860 - Section 302 murder - Effect of non recording of the substance of FIR in daily diary register and not sending the copies of the FIR to MM of the area U/S 155/157 Cr.P.C - Is indication of the fact that when the said entry was made full facts of the occurrence were not know." According to PW 2 details of FIR were not incorporated in quayami DD by him. He also stated that special report was sent through constable Sh. Bhagwan PW 12. When PW 12 came in the witness box he stated that the sealed envelop was delivered by him at the residence of Ld MM at about 2:40 a.m. But this witness did not remember the residence of Ld. MM and no proof of dispatching Contd....
26of special report has been placed on record. The Ld MM has also not been examined, so as urged by the Ld defence counsel there is a doubt as to whether the special report was sent to the house of Ld. MM as required U/s 157 Cr.P.C and the only inference which can be drawn is that the full facts of occurrence were not known to the IO.
So from the evidence and documents proved on record, the presence of PW 3 Daljeet alongside his brother at the time of the incident is not proved beyond reasonable doubt by the prosecution.
It was argued by the Ld defence counsel that the prosecution has failed to prove the motive behind this murder. It is urged by the Ld defence counsel that the motive, behind this murder was that the deceased wanted to marry Sonia, sister of the accused which was not to the liking of the accused. PW 1 who is the mother of the deceased has stated that her son wanted to marry Sonia but in her cross examination she has stated that "it is incorrect to suggest that Sonia was unmarried at that time." No evidence has been collected by the IO that Sonia, sister of the accused was unmarried at that time and there is nothing on record to show that there was a love affair between Manjeet and Sonia.
Contd....
27PW 1 mother of the deceased has denied the suggestion that Sonia was unmarried at the time of the incident so when Sonia was married at the time of the incident, there can be no question of her remarriage with the deceased and there is nothing on record to suggest that inspite of being married there was any relation between the deceased and Sonia, sister of the accused. This has been a very feeble attempt by the prosecution to prove the motive behind this murder. So the prosecution has also failed to establish the motive behind the alleged murder.
31. Point (b) What is the effect of contradictions in the testimony of the witnesses on the case of the prosecution?
PW 1 is Smt. Balvinder Kaur who is the mother of the deceased has deposed that her statement was recorded by the police on 1842006 at her house and PW 3 Daljeet and her husband were present and in her presence statement of Daljeet was recorded but it has not been stated so by PW 3 Daljeet and Inspector Rohtash PW 19 has also not stated about recording of statement of PW 1 as stated by her. She has stated that on 1642006, at about 11:00 or 11:30 p.m the incident had taken place and when she reached the spot her son Manjeet was lying there. But MLC Ex. PW 5/A shows that Manjeet was admitted at 11:10 Contd....
28p.m. PW 1 has further stated that she had gone to the hospital alongwith Satish, Rajinder and her son Daljeet in a three wheeler but PW 6 Satish has stated that he alongwith his friend Rajinder Sharma removed the injured in a TSR hired by them from the road. They do not talk about the presence of PW 1 at the spot. Moreover, the perusal of the MLC shows that the injured was brought by Rajinder and if PW 1 and PW 3 had accompanied Rajinder and Satish then there was no occasion for the name of Rajinder to appear in the MLC of the injured and also there was no reason for PW 1 or PW 3 not to approach the doctor.
PW 1 has further stated that she had gone to the spot alongwith Satish and Rajinder whereas PW 6 Satish has stated that he and Rajinder took the injured to the hospital and he had not stated that they had gone to the hospital with PW 1. PW 1 at another place has stated that she was on a bike which was driven by her son Daljeet and reached the hospital whereas Pw 3 Daljeet has deposed that his mother had already reached the hospital before his reaching there. According to PW 1 she had not met the police in the hospital whereas according to PW 3 Daljeet SI Vijay Singh had met his mother before him. According to PW 1 two Contd....
29persons of the locality came running to her house and informed her about the incident and she clarified the names of two persons as Satish and Rajinder. Rajinder could not be examined as he has expired and PW 6 Satish has not stated that he alongwith Rajidner went to the house of the deceased and informed about the incident to his mother. Whereas Pw 3 Daljeet has stated that he has gone to his house to collect money after the incident and he has no where stated that two persons namely Rajinder and Vijay came to the house to inform his mother. Whereas according to the case of the prosecution, it was PW 6 Satish and Rajinder who had removed the injured to the hospital. So the question of their informing PW 1 does not arise.
The reaching of the crime team at the spot has also not been clearly explained by the prosecution. PW 8 SI Mata Deen is the incharge of mobile crime team and according to him on 1742006 on the request of SI Vijay Singh, he alongwith his team visited the spot but according to SI Vijay Singh, IO had called the crime team and according to IO Inspector Rohtash Singh (PW 19) when he along with complaint Daljeet and SI Vijay Singh reached the place of occurrence, incharge crime team was present there. So there are different theories as far as the reaching of crime team Contd....
30at the spot is concerned. The contradictions as pointed out herein above are glaring in nature and goes to the root of the matter.
32. Point (c) Whether the recoveries are believable or not?
According to PW 3 accused ran away in the gali after the incident. But according to prosecution, the accused had got recovered the knife from the said park of A Block where the incident took place. Knife exhibit P1 is alleged to have been recovered at the instance of the accused which is a kitchen knife. IO PW 19 has stated "I have seen the weapon of offence which is a kitchen knife". PW 18 Dr. Anil Sandil has admitted in his cross examination that such kinds of knives are easily available. When this knife was sent to CFSL the report was that there was no reaction of human blood on it.
It is urged by the Ld defence counsel that the recovery of common object is a very weak type of evidence and non detection of blood or its origin is not sufficient proof of its use. According to PW 3 Daljeet the accused had ran away in the gali after the stabbing and it is not the case of Daljeet that he threw the knife in the park and then ran away in the gali. PW 3 is totally silent about the knife and what appears from his evidence is that the accused Contd....
31has not gone to the park after the incident. And the knife is alleged to have been recovered from the park but it becomes highly improbable that the accused after running away from the incident would come back and throw the knife somewhere around the place of incident.
The recovery memo of the knife is Ex. PW 7/D and no public witness has been joined by the IO at the time of the recovery. It is mentioned in the recovery memo that the accused got the knife recovered from under the heap of garbage lying in the park but this recovery is highly doubtful because according to PW 3 immediately after the incident the accused had run away in a gali so when did he get the time to hide the knife in the heap of garbage in the park as mentioned in Ex. PW 7/D. No public witness has been joined at the time of recovery. All this makes the recovery of the knife at the instance of the accused highly doubtful. Reliance can be placed upon Preetam Singh Vs. State 1998 (1) CCC 411 (HC) of Delhi in which it was held as follows: "Evidence Act 1872, Section 27, recovery becomes doubtful, Where the recovery was made from an open house and not in exclusive possession of the accused Contd....
32persons and there is no independent witness of the alleged recovery it becomes doubtful." The weapon of offence is stated to be a kitchen knife which is a common object and to bring home the point that the recoveries of common object is a weak piece of evidence, the Ld defence counsel has relied upon Imran @ Pappu Vs. State 2010 (1) JCC 391, Delhi High Court in which it was held as follows : "Penal Code - 1860 Section 302 -
Weapon of offence - Evidence Act, 1872 Section 27 - Recoveries of common objects held to be a very weak piece of evidence."
To contend that the prosecution has conclusively failed to prove that the recovered knife was the same knife which was used in the incident, the counsel for the accused also relied upon Phoolwati & Ors. Vs. State 1990 (1) CCC 250, Delhi High Court in which it was held as follows : "Penal Code 1860 - Section 302 -
murder - circumstantial evidence weapon of offence - detection of blood on gandasa but its origin and group could not be ascertained as there was no reaction. No Contd....
33sufficient proof for its use."
One of the interesting point of this case is that when the accused was arrested he handed over his blood stained Tshirt to the IO which was seized vide memo Ex. PW 7/E and is Ex. P2. It is highly unbelievable that any person would roam around in a blood stained cloth. The first endeavor of an accused after the commission of a crime is to destroy every piece of evidence against him. In the instant case, the accused was arrested on 1742006 and according to the prosecution he was wearing the Tshirt which was blood stained and was roaming in public and standing at the bus stand at the time of his arrest.
To dispel this theory of prosecution reliance can be placed upon Alijan Vs. State 2010 (2) JCC 1366, High Court of Delhi in which it was held as follows : "Penal Code, 1860Secs. 302 & 201 Blood stained clothes - It cannot be believed that the appellant will continue to wear blood stained clothes for three days continuously especially when as claimed by one of the witnesses that he was moving through out with her to trace the deceased - Weak incriminating circumstances to sustain Contd....
34conviction."
The alleged recoveries are therefore, not trustworthy and not beyond the shadow of doubt.
33. Point D Result : To sum up on the basis of the above discussions, the prosecution has failed to prove the presence of PW 3 Daljeet alongwith his brother at the time of the incident. There are material contradictions between the testimonies of public as well as official witnesses. The alleged recoveries of knife and Tshirt of the accused is also not beyond the shadow of doubt. The motive behind the murder also could not be established by the prosecution. So in these facts and circumstances, the benefit of doubt is given to the accused. Accused is, therefore acquitted. File be consigned to Record Room. (Announced in the open Court on 02082011) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Contd....
35Contd....