Santosh Kumar @ Guddu vs The State (Govt. Of Nct Of Delhi)
2007 Latest Caselaw 718 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal No. 404 of 2003 seeks to challenge the judgment and order dated 4.10.2002 of the Additional Sessions Judge, Karkardooma Courts, Delhi, in Sessions Case No. 83 of 2000, F.I.R. No. 3 of 2000, registered at Police Station Anand Vihar, vide which order and judgment, the learned judge has held the appellant guilty under Section 302 IPC as also under Section 3 of the Explosive Substances Act for causing explosion likely to endanger life but went on to acquit him under Section 4 of the Explosive Substances Act. He also acquitted the appellant under Section 5 of the Explosive Substances Act and further by his order dated 4.10.2002, has sentenced the appellant to undergo imprisonment for life for offence under Section 302 IPC together with the fine of Rs. 2,000/- (Rupees two thousand) and in default further Rigorous Imprisonment for two months. The appellant was sentenced to Rigorous Imprisonment for seven years under Section 3 of the Explosive Substances Act. Both the sentences were directed to run concurrently.

2. The facts of the case as have been noted by the learned Additional Sessions Judge are as under:

...that on 1.1.2000 at about 7.15 p.m. in front of H. No. 32/25, Gali No. 11, Bhikham Singh Colony, Delhi, the accused intentionally caused death of Kishore by throwing explosive substance (bomb like object). The act of the accused in causing explosion was likely to endanger human life. The report was lodged by Kishan Lal Sethi, father of the deceased.

During investigation, P/M was got done. Accused was arrested on the next day, i.e., 2.1.2000. Articles lying at the spot were seized, clothes of the deceased were taken into possession and sent to FSL. Report was collected. Statement of witnesses were recorded. Sanction to prosecute for offence under Section 3 to 5 Explosive Substance Act, 1908 was collected.

Challan was filed. Copies were supplied. Case was committed to the Court of Session. A prima facie case for offence under Section 302 IPC and Section 3 to 5 Explosive Substance Act was found. Charge was framed. The accused pleaded not guilty.

3. The prosecution in order to establish its case examined as many as 21 witnesses. Out of these, three were cited as eye witnesses, namely, PW-3, PW-4 and PW-5. PW-3, Surender Kumar as also PW-5, Sudhir do not support the prosecution case. PW-4, Kishan Lal Sethi is the complainant. He is the father of the deceased and has deposed to the effect that the accused was inducted as a tenant in January, 1995 but within 28 days was asked to vacate the premises. He goes on to depose that two years thereafter the accused came to his house, quarreled with his son and hit his son Kishore Kumar with a glass bottle on his head. A report was lodged in the police station. Later on, on 2nd or 3rd January, 1999, the accused threw three bombs at the door of the witness's house. A report was lodged with the police of this incident as well. On 1.1.2000 at about 7:15 p.m., the accused hit a bomb on the head of his son Kishore when he was standing outside the shop of Surender. The witness claims to be present along with Kishore at that time. The accused stated that he will kill Kishore for having evicted him from his house. Head of Kishore burst and he fell on the ground. The police came and apprehended the accused. The police removed Kishore to the hospital. Someone from the locality had informed the police. The witness states that his statement was recorded by the police Exhibit PW 4/A. The witness identifies the dead body of his son in the hospital vide memo Exhibit PW 4/B and received the dead body vide memo Exhibit PW 4/C. Police seized earth from the spot vide parcels Exhibit PW 4/D and PW 4/E. The ruminants of the bomb were seized and sealed vide parcel memo Exhibit PW 4/F and PW 4/G. Blood sample was lifted vide memo Exhibit PW 4/H. Shirt of the accused was not seized in his presence though seized vide memo Exhibit PW 4/I and bears the signature of the witness. The police took measurements of the spot on the date of the incident and one week thereafter. He identifies the case property seized from the spot and the clothes worn by his son. The witness was allowed to be cross-examined by the Additional Public Prosecutor who in cross-examination states that about a year prior to the incident, a quarrel had taken place between the accused and Kishore in 1998. He admits that the accused had come six months prior to the incident and threatened to kill his son. He admits that he lodged a report regarding this incident with the police. He admits that the accused tried to run away after hitting bomb on the head of his son but was apprehended by public with the help of the police. He admits that the police fired three shots to disperse the mob and apprehended the accused. He admits that Surender is a witness to the incident. He admits that the T-shirt of the accused was got removed and that it was torn as a result of beatings by the public and had blood stains. In cross-examination by counsel for the accused, this witness states that the accused was a tenant in his house for one month from 28.10.1993 to 28.11.1993. He admits that no receipt was given on account of the tenancy. He also admits that he had not seen the accused till 1998. He also admits that he had got his eyes operated upon four months after the incident as he was suffering from Cataract. The witness suggests that when the accused struck his son with a bomb, the accused was six inches away from his son. The shop of Surender was open and two persons standing at the said shop ran away. There was no other public person near the spot. No one else received injuries. No public person came to the spot after the incident but persons collected shortly thereafter. The accused was apprehended within two paces by the police. The police reached the spot within ten minutes. Sudhir was one of the persons standing near the shop of Surender. None from the mohalla persons were present at the time of the incident. Sudhir came later on. He denies that he is not telling the truth.

4. PW-6 is Inspector Sarabjit Singh from East District, Investigation Unit. He states that on 1.1.2000, he was posted as SHO, Police Station Anand Vihar. On that day, on receipt of DD No. 19-A, SI Sanjay Bhardwaj reached the spot near 25/35, Bhikham Singh Colony in Gali No. 11 and got this case registered vide F.I.R. No. 3 of 2000 under Section 302 IPC and under Sections 3 & 5 of Explosive Substances Act. After registration of the case, the investigation was handed over to this witness. He goes on to depose that he proceeded to the site, made the site plan, collected objects from the spot from SI Sanjay Bhardwaj and took the custody of accused Santosh from SI Sanjay Bhardwaj. On 2.1.2000, postmortem was got conducted on the body of the Kishore Exhibit PW 6/A. Statement of witnesses regarding identification of the body were recorded and the dead body was handed over to the father of the deceased. Doctor handed over four pullandas and one sample seal which was sealed with the seal of SKV. The same was taken into possession by him and handed over to Constable Sher Singh vide seizure memo Exhibit PW 6/D. The articles recovered from the personal search of the deceased were taken into possession vide memo Exhibit PW 6/E. The pullandas were deposited in the malkhana and later the same along with other articles were sent to the CFSL. The CFSL report was collected. The same is Exhibit PW 6/F and PW 6/G. In cross-examination, the witness admits that sanction for prosecution was not obtained prior to filing of the challan but the same was obtained after filing of the challan.

5. PW-10 is Head Constable Nasiruddin. He states that on 2.1.2000, he was posted at Police Station Anand Vihar. He along with Constable Naresh, reached house No. 32/25, Gali No. 11, Vishwas Nagar during the course of patrolling. At about 7:45 pm, they heard an explosion. The reached near the spot and saw one person had hit some bomb like object on another person. The former started running away but was apprehended by them. The public started beating the person apprehended. SI Sanjay Bhardwaj reached there and fired in the air to disperse the mob. He identifies the accused as the person apprehended by him at the spot. On inquiry, it was revealed that the deceased is Kishore Kumar while the accused revealed his name as Santosh Kumar. Both were taken to SDN Hospital for medical examination. The witness brought the accused back to the spot and handed him over to the SI together with the MLC. In cross-examination, the witness states that the crowd collected after the accused was apprehended.

6. PW-16, SI Sanjay Bhardwaj, deposes that on 1.1.2000, he was posted at Police Station Anand Vihar. On receipt of copy of DD No. 19-A, he along with Constable Varun went to the spot, that is, Gali No. 11, Bhikham Singh Colony and found an injured lying in the pool of blood opposite shop No. 32-A. The public had gathered there. The injured was taken by CATS to the hospital. The injured was identified as Kishore Sethi. The accused was found at the spot. He was being beaten by the public.

7. PW-20, Constable Naresh Kumar, states that on 1.1.2000, he was patrolling Bhikham Singh Colony at about 7 or 7:30 pm. He reached 32/25, Gali No. 11, Bhikham Singh Colony, Vishwas Nagar, Delhi. He saw a crowd and came to know that someone had hit a bomb like object. The injured was lying in the pool of blood. He and Head Constable Nasiruddin chased the person who hit the bomb and apprehended him. His name is Santosh. Someone telephoned police. SI Bhardwaj came to the spot. He fired three shots in the area to disperse the mob. CATS ambulance came there and took injured to the hospital. The accused was also taken to the hospital. Rukka was sent through Constable Rajinder.

8. On the basis of the evidence on record, the trial court went on to convict the appellant on the reasoning that (1) the appellant was arrested from the spot; and (2) he was seen by PW-4 hitting the bomb like object on the head of the deceased and causing an explosion resulting in the death of the deceased. The trial court was also impressed with the fact that the appellant was arrested on the spot by mob and taken into custody by the police and therefore, arrived at the conclusion that the prosecution had been able to bring home the guilt of the accused beyond the shadow of doubt.

9. We have very carefully, with the aid of the learned Counsel for the parties, gone through the evidence on record and the material placed before us. With great respect to the learned trial judge, we do not subscribe to his reasoning. It appears from the material on record that story put forth by the prosecution is riddled with speculation, surmises and leaves many loose ends untied. The story of the prosecution which appears to be unfolded by PW-4, Kishan Lal Sethi, is that the accused was his tenant in the year 1993 for a period of one month with effect from 28.10.1993 to 28.11.1993 which this witness has stated in his cross-examination. While in his examination in chief, the witness claims that the accused was his tenant in January, 1995. PW-4 has given a series of transactions of violation committed by the accused against the witness and his family but there is nothing on record to show that any such incident in fact took place. No copy of the police report is on record. No complaint has been filed before any authority other than the police, if the police were not taking any action. Even serious allegations of hurling bombs at the house of the witness by the accused which is deposed to by this witness in his examination in chief, finds no corroboration from any contemporaneous document or any other witness. The story put forth by PW-4 in support of the prosecution's case appears to be hollow and totally trumpet up. According to this witness, the accused exploded a device on the head of the deceased who was barely six inches away from the accused yet, we find no telltale marks of any explosive substance on the person of the accused let alone any injury being caused to the accused himself even though, he was at such close quarters from the explosion itself. From the CFSL report, we find no explosive material on the clothes of the deceased nor of the accused. PW-4 claims that he was standing close to Kishore when accused Santosh exploded the bomb on the head of Kishore. Even this witness has suffered no injury. Even the so-called glass sharplets recovered by the doctor from the skull of the deceased do not belong to any explosive device, according to the CFSL.

10. The prosecution's case as regards the arrest of the accused Santosh is that Santosh was arrested virtually immediately on the explosion having been caused by him. According to the prosecution, he was beaten up by the mob, rescued by the police and taken into custody. We find from the injuries suffered by Santosh, as made out in the MLC of Santosh, show complete absence of mob violence. The injuries are all superfluous and the first remand application is dated 2.1.2000. PW-4 in his examination in chief does not talk of the presence of the mob at the spot though he claims the accused was arrested by the police at the spot. This witness in his cross-examination clearly states that there was nobody present at the time of incident at the spot and that the accused tried to run away but was apprehended by the police at a distance of two paces. None of the mohalla persons were present at the time of the incident. The evidence of PW-4 as also the medical evidence on record does not corroborate the catching hold by the mob and of being lynched before being rescued by the police, who had to open fire.

11. As regards the motive, besides the fact that this in itself is a very weak type of evidence, there is hardly anything in this case to suggest that the appellant who had evicted the premises within 28 days in 1993, would hold a grudge till 2000 and come all the way from Allahabad to cause an explosion over the head of the deceased, more particularly, when the deceased had no hand in either inducting the appellant as a tenant or evicting him from the premises in question as is evident from the statement of PW-4.

12. The prosecution's case which claims that the incident was witnessed by PW-3 and PW-5 does not find support from the above witnesses and the only witness who seeks to put life into the prosecution's case is PW-4, Kishan Lal Sethi, who too was cross-examined by the Public Prosecutor and his statement also is riddled with contradictions. It appears to us that the trial court was unnecessarily impressed by the statement of PW-4 and also due to the inapt handling of the case by counsel for the accused in the trial court, it appears the trial judge has convicted the appellant only on the basis of suspicion and not proof. Although, we have not based our judgment on the contradictions between the statement of PW-10, who claims that the incident took place on 2.1.2000 and that the accused was arrested on that day but we find that no attempt has been made by the prosecution to correct itself, if this was an error.

13. In the backdrop of what we have already discussed above, we are unable to sustain the judgment of conviction and sentence. Consequently, we set aside the judgment and order dated 4.10.2002 and acquit the appellant of all charges. The appellant be set at liberty forthwith if not wanted in any other case. Criminal Appeal No. 404 of 2003 is allowed and disposed of.