Rakesh Patel vs The State (Nct Of Delhi) And ...
2001 Latest Caselaw 103 Del

ORDER

Usha Mehra, J.

1. Rakesh Patel @ Pappi, appellant in this appeal, Chander Prakash @ Chander, appellant in Cr.A.No.172/95 and Anil Kumar appellant in Crl.A.No.186/95 have assailed the order of conviction and sentence dated 28th July, 1995 passed by learned Addl. Sessions Judge thereby imposing rigorous imprisonment for life to them and a fine of Rs.75,000/- on appellant Rakesh Patel, Rs.15,000/- on Chander Prakash and Rs.10,000/- on Anil Kumar. In default of payment of fine they have to undergo further rigorous imprisonment for three years under Section 302 read with Section 120-B IPC. Since these appeals have arisen from a common judgment based on same facts hence these appeals were heard together and are going to be disposed of by common order.

2. The conviction and sentence has been assailed by the appellants on the grounds that: (1) mere last seen circumstance is no ground to presume that the deceased was killed by the appellants; (2) Extra judicial confession by one accused could not be used against the other co-accused; (3) Recovery of alleged dagger doubtful; (4) Identity of the accused not disclosed by the author of the FIR (5) Name of Pappi was given without disclosing the identity of the said Pappi; (6) there had been material contradictions in the statements of witnesses; (7) Author of FIR i.e. father of the deceased Chunni Lal PW 7 has not supported the case of the production. (8) that the seals "IS" and "CH" did not belong to the investigating team hence sealing of articles doubtful. It has not been explained wherefrom these seals came; (9) there was violation of Police Rules and lastly (10) in this case Investigating Officer concealed true facts.

3. In order to appreciate the challenge we must acquaint ourselves with the facts of the case. Facts as put by the prosecution are that on 27th December, 1990, accused Rakesh Patel @ Pappi enquired from Master Lalit PW9 younger brother of the deceased the name of his sister as well as their Jhuggi number. This fact in turn was told by Master Lalit PW 9 to his mother Smt.Santosh PW2 Smt.Santosh did not like this enquiry made by accused Rakesh Patel @ Pappi. She, therefore, went to Pappi's house to find out the reason for such an enquiry. When Smt.Santosh PW2 questioned accused Pappi on this aspect, he felt offended. He used harsh language against her. After having come back, Smt. Santosh PW2 told her son Raju the deceased as to what transpired at the house of accused Pappi. At about 6.00 P.M. Raju the deceased went to the house of accused Pappi. There hot words were exchanged between deceased Raju and accused Pappi. Deceased Raju slapped accused Pappi. That on the intervention of Mr.Chunni Lal PW7 father of deceased matter was sorted out. On the following day i.e. 29th December, 1990 when Chunni Lal (PW-7), Smt.Santosh (PW-2), Raju (deceased) and Shyam Lal (PW-6) were present at home, Chander Prakash accused came to call deceased Raju at deceased's house. Raju the deceased went with accused Chander Prakesh. Because of previous days incident Smt.Santosh PW2 asked her husband PW7 & her brother PW6 to follow Raju the deceased. She knew that Chander Prakash was friend of accused Pappi, hence she suspected that something may not happen to Raju. play. Accordingly, Chunni Lal (PW-7) (father of the deceased) and Shyam Lal (PW-6) (uncle of deceased) went after Raju. As soon as they reached on the main road at Lakhi Park they saw accused Chander Prakash and accused Rakesh Patel @ Pappi fighting with deceased Raju. Rakesh Patel @ Pappi shouted to accused Chander Prakash to catch hold of Raju (the deceased) and told that deceased Raju be not permitted to escape. They heard accused Pappi saying "PAKAR SAALE KO AAJ ISKO THAPPAR MARNE KA MAJA CHAKHA DETA HOON" (Catch hold of the bastard and I would teach him a lesson for having slapped). That Raju should not be allowed to escape. On account of this exhortation by accused Pappi, the accused Chander Prakash caught hold of Raju. Thereon Pappi took out a knife (Chhuri) and stabbed on the neck of Raju (deceased). He again tried to stab Raju. Raju freed himself and ran towards the Jhuggi of his maternal uncle Shyam Lal (PW-6) which happened to be nearby. After stabbing Raju, the accused Pappi and Chander Prakash ran away. This occurrence was also witnessed by Sadhu Ram (PW-4) and some passer-by. Shyam Lal (PW-6), Chunni Lal (PW-7) and Sadhu Ram (PW-4) took Raju to the clinic of Dr.G.S.Puri. Since the condition of Raju deteriorated because of loss of blood, they took Raju in the three-wheeler Scooter to Hindu Rao Hospital where he was declared brought dead. On the basis of this statement of Chunni Lal (PW-7) the FIR in question was registered.

4. Prosecution examined almost 28 witnesses. For the purpose of determining the appeal evidence of Ashok Kumar (PW-1), Smt.Santosh (PW-2), Sh.Daya Ram (PW-3), Sadhu Ram (PW-4), Shyam Lal (PW-6), Chunni Lal (PW-7), Master Lalit (PW-9). Sh.Shamim Ahmad (PW-11), Dr.L.T.Ramani (PW-16), SI Atbir Singh (PW-27) and finally Insp.Chander Hass (PW-28) have bearing. So far as PWs. 5, 8, 10, 12, 13, 14, 15, 17, 18, 22, 23 and 25 are concerned they are police witnesses. Const.Ombir Singh (PW-24) proved he delivery of the special report to the Metropolitan Magistrate. Shri Davinder Kumar (PW-21) proved the MLC Ex.PW-21/A. Shyam Lal (PW-6) and Chunni Lal (PW-7), maternal uncle and father of the deceased were declared hostile. Similarly, Vijay Kumar (PW-19) and Kewal Krishan (PW-20) were declared hostile.

5. So far as Sh.Ashok Kumar (PW-1) is concerned he is witness to the conspiracy hatched by accused persons. He heard accused Rakesh Patel @ Pappi saying "RAJESH SETHI NE BAHUT TANG KAR RAKHA HAI, AAJ USKA KAAM KAR DETE HAIN." Anil on this said "AAJ USKO NIBTA DETE HAIN." This he heard on 28th December, 1990 at about 9.00 or 9.15 P.M. Next day he learnt that Raju @ Rajesh Sethi had been murdered. He did not disclose this fact to anyone on 28th December, 1990, because he did not realise the significance of those statements. Counsel for the appellants contended that he is a planted witness for the reason that if these utterances were made by the appellants then there would have been number of other persons who were present at the tea shop and were taking tea. Moreover, this witness is not an innocent witness. He was facing trial under Section 307 IPC along with deceased Rajesh, therefore must have known the significance of the alleged exhortation made by accused Pappi. We find no substance in this contention of counsel for the appellants. Even if a person is facing trial it is not necessary that he could appreciate the implication of such a statement and the consequences thereof. Moreover, there was no occasion for him at that stage to lodge a police report because as a consequence of that statement nothing happened on that day. Mr.Ahluwalia counsel for the State rightly contended that he being involved in a case under Section 307 IPC may not have liked to get involved in another case, therefore, did not report the matter. We find force in this submission of Mr.Ahluwalia. Simply because he was facing trial under Section 307 IPC along with deceased is no ground to discard or discredit the testimony of Ashok Kumar PW.

6. Smt.Santosh (PW-2) is the mother of deceased Rajesh Sethi alias Raju. She was informed by her son Master Lalit Kumar (PW-9) that Rakesh Patel @ Pappi had enquired from him about his sister and about Rajesh Sethi alias Raju as well as the number of their Jhuggi. She did not like Rakesh Patel asking the name of her daughter hence decided to lodge protest with Rakesh Patel by going to his house. This part of her testimony has been corroborated by Master Lalit Kumar (PW-9). He was subjected to cross-examination but no contradiction could be elicited nor his testimony could be discredited. It has also been proved by the testimony of lalit Kumar (PW-9) as well as of Smt.Santosh (PW-2) that when Smt.Santosh went to the house of Rakesh Patel @ Pappi to protest his action, Rakesh Patel misbehaved with her. She told about the behavior of Rakesh Patel @ Pappi to her son Rajesh @ Raju, who on hearing the same immediately went to the house of Rakesh Patel. Hot words were exchanged between the deceased and the accused Pappi. Deceased Rajesh slapped Rakesh Patel. Thus from the testimony of Smt.Santosh (PW-2) supported by the testimony of Lalit Kumar (PW-9) motive and the cause which led to this crime stood established. Rakesh Patel on being slapped by Rajesh wanted to take revenge. He, therefore, made utterances which were heard by Ashok Kumar (PW-1) and as quoted above. Smt.Santosh (PW2) further testified that on 28th December, 1990 at about 9.00 or 9.15 P.M. Chander Prakash came to her house to call Rajesh the deceased. She apprehended danger because Chander Prakash was friend of Pappi and deceased and Pappi had exchanged hot words the previous day. Therefore, she apprehended that some untoward thing may not happen. She accordingly asked her husband Chunni Lal (PW7) and her brother Shyam Lal (PW6) who were sitting with her to follow Rajesh. Shyam Lal (PW6) and Chunni Lal (PW7) according to her went after Rajesh. Thereafter she heard that her son had been stabbed. She testified that the incident had been witnessed by Chunni Lal (PW-7), Shyam Lal (PW-6) and Sadhu Ram (PW-4).

7. Sadhu Ram (PW-4) corroborated the case of the prosecution in all respects. He heard Rakesh Patel @ Pappi asking accused Chander Prakash to catch hold of Rajesh @ Raju so that he may not escape. Chander Prakash caught hold of Raju @ Rajesh Sethi and accused Rakesh Patel @ Pappi took out the knife stabbed Rajesh @ Raju on the left side of his neck. When Rakesh Patel again tried to strike Rajesh got himself freed from the clutches of the accused persons and ran towards the house of his uncle Shyam Lal PW. Since Raju's condition was deteriorating hence he was taken to a nearby Private Clinic of Dr.Puri to get first aid. Thereafter on the advise of Dr.Puri Raju was taken to the Hindu Rao hospital where he was declared brought dead. Sadhu Ram (PW-4) was subjected to lengthy cross examination, but no material contradiction could be elicited. The thrust of cross-examination of Sadhu Ram PW appears to be that he was not residing at J-251 or that he was not owning Jhuggi No.J-180 or that he was not resident of Delhi but was living in the village. Fact of the matter is he accompanied the deceased Rajesh to Dr.Buries Clinic and from there to Hindu Rao Hospital. His statement was recorded by the police at the hospital. He was party to the proceedings held thereafter at the spot. Had he not been at the spot he could not have taken the deceased to Dr.Puri's Clinic and from there to the Hindu Rao Hospital. This fact which has remained unchallenged proves his presence at the spot at the time of incident. His presence at the place of occurrence has in fact been corroborated by the testimony of Smt.Santosh (PW-2) as well as by Shyam Lal (PW-6) who stated that when Rajesh @ Raju came to the house of Rajesh (PW6) after being stabbed, PW6 sent the information about Raju being stabbed to his sister Smt.Santosh (PW-2), mother of the deceased. On receipt of which Smt.Santosh (PW-2) Chunni Lal (PW-7) and Sadhu Ram (PW-4) came there. They took Rajesh to Hindu Rao Hospital. Pant (Ex.P1) and Shirt (Ex.P-2) of Sadhu Ram (PW-4) were seized by the police vide Memo.Ex.PW4/A. Shyam Lal (PW-6) was declared hostile but in spite of that he admitted the presence of Sadhu Ram (PW-4) there at the relevant time. Shyam Lal (PW-6) also admitted that blood stained clothes of Sadhu Ram which were seized by the police had the blood of the deceased. Similarly, Chunni Lal (PW-7) though resoled from his earlier statement and declared hostile, did not deny the presence of Sadhu Ram (PW-4). He admitted the presence of Sadhu Ram (PW-4) at the time of the incident. In his own words;

"It was about 9.00 or 9.15 P.M. I, Sadhu Ram and my wife were present in Jhuggi."

8. This proves that when Chander Prakash came to call deceased Rajesh, Sadhu Ram was present in the Jhuggi of the deceased. Sadhu Ram's presence at the spot of incident thus legitimately be inferred because beside his oral testimony, there is testimony of PW-2 to prove that Sadhu Ram was present at the spot. Coupled with oral testimony, there is documentary evidence to prove his presence and that is his blood stained clothes which had blood of the deceased on it. It was because he lifted the deceased in order to take him to Dr.Puri and thereafter to hospital hence his clothes sustained blood of the deceased. Had he not been present he would not have lifted the deceased nor his clothes had the blood of the deceased. This shows he was present at the spot. Hence the testimony of Sadhu Ram PW inspires confidence. It cannot be discarded or brushed aside lightly. There was no motive for Sadhu Ram to falsely implicate Rakesh Patel or for that mater Chander Prakash. As per Chunni Lal's own showing, Sadhu Ram (PW-4) was present in the Jhuggi when Rajesh @ Raju left. According to Santosh (PW-2), Sadhu Ram (PW-4) and Master Lalit (PW-9). Raju left the jhuggi being called by Chander Prakash. Moreover, the presence of Sadhu Ram stand established because his name appears in the FIR and blood on his clothes was found to be of the deceased i.e. 'AB' Group. Thus the presence of Sadhu Ram cannot be doubted. We see no reason to disbelieve the testimony of Sadhu Ram (PW-4). He had no axe to grind. In fact Sadhu Ram gave eye witness account of the incident. His testimony has not been shaken. Post-mortem report shows one injury and that is what has been described by Sadhu Ram (PW-4) also. There were, of course, some injuries also on the person of deceased Raju but this fact does not make any suspicious in the story of the prosecution. Hence we see no reason to disbelieve the testimony of Sadhu Ram (PW4). He had no axe to grind.

9. From the testimony of Ashok Kumar (PW-1), Smt.Santosh (PW-2) mother of the deceased, Lalit Kumar (PW9) and that of Sadhu Ram (PW-4) it leaves no manner of doubt that the appellant herein conspired to kill Raju @ Rajesh Sethi. Otherwise there was no need for Chander Prakash to call Rajesh Sethi from his house at 9.00 or 9.15 P.M. Moreover, he facilitated Rakesh Patel to stab by catching hold of the deceased.

10. It was then contended by counsel for the appellant that in DD No.17A address as given of the place of occurrence was J-Block, Laki Park. With this address the IO/ SHO could not have gone to the house of the deceased. We find no force in this submission because in a JJ Cluster from J-Block the SHO could have got the information about residential address of the deceased. SHO's going to the house of deceased does not create any dent in the prosecution's case.

11. As against the testimony of eye witness Sadhu Ram (PW-4), we have got the testimony of Shyam Lal (PW-6) maternal uncle of the deceased and Chunni Lal (PW-7) father of the deceased. They both resoled from their previous statements. Therefore, were subjected to cross examination by learned Additional Public Prosecutor. Shyam Lal (PW-6) as well as Chunni Lal (PW-7) admitted that Santosh (PW-2) had lodged a complaint with the police against them for the reason that after taking bribe from the accused persons they had resoled from their previous statements. Chunni Lal and Shyam Lal had earlier made statements in which they implicated both the accused persons i.e. Rakesh Patel @ Pappi as well as Chander Prakash @ Chander. They described the incident in the same manner as had been described by Sadhu Ram (PW-4). But while appearing in the Court they resoled from their previous statements. Therefore, no much significance can be attached to their evidence. Chunni Lal (PW-7) admitted that his wife had filed a complaint against him as well as Shyam Lal (PW-6) alleging that they had taken Rs.40,000/- from the accused persons in order to resile from their previous statements. Hence being hostile witnesses no much reliance can be placed on their statements.

12. Raj Kumar (PW-8) testified that Chander Prakash borrowed his scooter on 28th December, 1990 at about 10.00 P.M. on the false pretext that in some delivery case he was to take the patient to Hindu Rao Hospital. He permitted him to take his scooter that when he went to take back his scooter on 29.12.90 Chander Prakash was not available. Thereafter the scooter was found abandoned at Pahar Ganj. The scooter was borrowed by Chander Prakash immediately after the incident took place. Mr. Ahluwalia contended that scooter was borrowed in order to escape from the spot. They in fact escaped. This is a corroborative circumstances and piece of evidence to point at the guilt of the accused persons.

13. Master Lalit (PW-9) was seven years old when the incident took place. He testified and described as to what happened on 27th December,1990 i.e. when accused Rakesh Patel alias Pappi asked him the name of his sister, about his brother & jhuggi number. His testimony stood corroborated from the version given by his mother Smt.Santosh (PW-2) and which turned out to be the cause for the stabbing of Rajesh Sethi @ Raju. Shamim Ahmad (PW-11) was the member of the investigating team. He testified that on the pointing out of Rakesh Patel police arrested accused Anil and at the disclosure of Anil Kumar dagger was recovered. Disclosure statement of Anil Kumar was recorded as Ex.PW-11/1. Dagger was recovered from Ganda Nullah near Shakti Nagar which fell on the Kamla Nagar side near Shakti Nagar Chowk. Dagger was taken out by him from the rubbish and produced before the police. The said dagger was exhibited as Ex.P-3. In cross-examination by Mr.O.P.Malviya, Advocate he admitted that team of five police officials beside Rakesh and Anil had gone to the Ganda Nullah for the recovery of the dagger. Balbir Singh (PW-13) prepared the scaled site plan Ex.PW-13/A. According to him the site plan was prepared at the pointing out of Shyam Lal (PW-6). He denied the suggestion that site plan was not prepared at the instance of Shyam Lal (PW-6). Shyam Lal PW6 nowhere denied the preparation of site plan at his pointing out.

14. Dr.L.T.Ramani (PW-16) proved his report and indicated external injuries as follows:-

External injuries:-

1. An incised wound 2 cms x 0.5 cm x ? present transversly on the left side lateral aspect of neck 5 cms. below the ear lobule. Both the ends of the injury were accutly cut.

2. Small punctured wound 3 cms. long x skin deep present just below injury No.1.

3. Small incised wound 0.5 cms x skin deep on the left side of chest wall in mid axillary line 8 cms. below the arm pit.

4. A tiny punctured would 0.3 cms. x skin deep on the left coastral margin.

5. Small cut 0.3 cms. long on the public region.

15. He also indicated the internal examination and what it reveals and after discussing the same he concluded as under:-

"In my opinion the injuries were anti-mortem, caused by sharp edged weapon. Death was due to haemorrhagic shock consequent to injury No.1. Time since death was about 15 hrs. Clothes and sample of blood was preserved, sealed and handed over to the police along with the sample of seal. My report is Ex.PW-16/A which bears my signatures at point 'A'"

16. He further opined that:-

"On 17.1.1991 a sealed packet sealed with the seal of 'CH' was produced by Inspector Chander Hass along with the application Ex.PW-16/B. The packet on opening found to contain a dagger. The blade of which was double sharp edged rusted on both sides. Some blood like reddish were seen on the blade. In my opinion the injuries found on the body of the deceased were possible with the weapon."

17. Two other witnesses namely Vijay Kumar (PW-19) in whose presence scooter parked by Chander Prakash was recovered. Kewal Krishan (PW-20) is that witness in whose presence Rakesh Patel @ Pappi got recovered Jersy. Both these witnesses Vijay Kumar (PW-19) and Kewal Krishan (PW-20) were declared hostile as they did not support the case of the prosecution. SI Atbir Singh (PW-27) and Inspector Chander Hass (PW-28) corroborated in material particulars the investigation done by them and also that the proper procedure was followed.

18. From the above discussion of the evidence the only irresistible conclusion which can be arrived at is that it was Rakesh Patel @ Pappi who inflicted knife stab on the neck of the deceased which injury was sufficient to cause the death of Rajesh Sethi @ Raju. That Chander Prakash @ Chander was his accomplice and that they had common intention to get rid of Rajesh Sethi @ Raju. That is why Chander Prakash called Rajesh Sethi @ Raju from his house and took him where Rakesh Patel was. Chander Prakash caught hold of deceased's hand and Rakesh Patel inflicted knife blow. Hence the guilt of these two accused persons stood established beyond any reasonable doubt. Chander Prakash in order to escape and show his alibi borrowed scooter and then abandoned it at Pahar Ganj. This factor also points towards the guilt of Chander Prakash. The knife shown to Dr.Ramani (PW-16), he testified that this knife could have caused injury No.1 which was sufficient to cause the death of Rajesh Sethi @ Raju.

19. So far as Anil is concerned except the testimony of Daya Ram (PW-3) who stated that Anil confessed on 29.12.1990 that Pappi had stabbed Raju and that Rakesh Patel and Chander Prakash had conspired for the murder of Raju, there is nothing on record to link Anil with the crime in question. As per the testimony of Shamim Ahmad (PW-11) the dagger was recovered at the disclosure statement of Anil Kumar. The said disclosure statement has been denied by independent witness. Hence it cannot be relied upon. We find that there is no evidence linking Anil Kumar with the crime in question. Even at the time of recovery of knife Rakesh Patel @ Pappi was with the police team as stated by Shamim Ahmad (PW-11). He and Anil took them to Ganda Nullah and got the dagger recovered. Even if for the sake of argument disclosure statement is to be relied upon even then it does not link Anil with murder of Rajesh Sethi. Anil Kumar might have been in the know of as to where these accused persons had hidden the knife that by itself does not prove that Anil committed murder or in any way abetted it. Prosecution has not assigned any role to Anil nor linked him with the crime except for the alleged recovery of the dagger.

20. Therefore, taking the above factors into consideration so far as appellant Anil is concerned his appeal is allowed. The conviction and the sentence passed against Anil Kumar is accordingly set aside. So far as conviction and sentence of accused Rakesh Patel @ Pappi and Chander Prakash @ Chander is concerned we find no infirmity in the conclusion arrived at by the learned Addl. Sessions Judge. The same is accordingly maintained.

21. For the reasons stated above the appeals filed by Rakesh Patel @ Pappi bearing No.140/95 and of Chander Prakash @ Chander bearing no.172/95 are hereby dismissed.