Hare Ram Singh vs The State Of Nct Of Delhi
2007 Latest Caselaw 738 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal No. 936 of 2005 seeks to challenge the judgment and order of the Additional Sessions Judge, New Delhi, dated 13.09.2005 in Sessions Case No. 61 of 2003 arising out of F.I.R. No. 78 of 2003, registered at Police Station Chitranjan Park, vide which order and judgment, the learned judge has held the appellant guilty under Section 302 IPC for the murder of Vipin Kumar Gupta. Further by his order dated 19.09.2005 has sentenced the appellant to undergo imprisonment for life for offence under Section 302 IPC together with the fine of Rs. 1,000/- (Rupees one thousand).

2. Brief facts of the case as have been noted by the learned Additional Sessions Judge in his judgment under challenge are as follows:

The unfortunate incident took place on 15.4.2003 around 10 p.m. Vipin Kumar Gupta became the victim of murder. He was running a chemist shop at E-5, DDA Market, Masjid Moth. He also had a kerosene depot which was functioning in the basement beneath the shop. Accused Hare Ram Singh was in the employment of the deceased as a salesman at his Chemist shop. There were two other employees at the shop. One was PW5 Balam Singh and the other was Gopal. Balam Singh is an eye witness of the occurrence and he is the author of FIR.

According to allegations made in the FIR deceased Vipin Kumar Gupta was present at the shop on 15.4.03. At about 8.30 p.m. on that day he asked Balam Singh as to where Hare Ram Singh had gone. Balam Singh replied that he might be somewhere out side the shop. At about 9.30 p.m. Hare Ram Singh returned to the shop. Vipin Kumar Gupta scolded him for leaving the shop without permission. At about 10 p.m. the shop was closed and the shutter on the front side was pulled down. Balam Singh and Vipin Kumar Gupta were standing on the rear side of the shop. In the meantime, accused Hare Ram Singh came and informed that either water was leaking from A/c in the basement or kerosene was leaking from the tub. On receiving this information Vipin Kumar Gupta went down stairs into the basement. The accused followed him. Shortly afterwards Balam Singh heard screams of Vipin Kumar Gupta. He slowly went to the stair case and from there he saw that the accused was inflicting blows with knife on the body of Vipin Kumar Gupta. When he protested, the accused abused him and asked him to run away. As a result of injuries, Vipin Kumar Gupta fell on the floor in the basement. Accused Hare Ram Singh took kerosene from the tub lying there and poured it on the body of Vipin Kumar Gupta and set him ablaze. Balam Singh raised alarm. In the meantime, the accused came running upstairs and Balam Singh tried to stop him. He pushed him a side and run away. Since the hands of the accused were smeared by blood, the blood stains stuck to the shirt of Balam Singh as he was pushed a side. Thereafter many people gathered there. The fire brigade was called and then the fire was extinguished.

At about 10.12 p.m., the information of the occurrence was received at PS C.R. Park vide DD No. 22A (Ex. PW 1/B). On receipt of DD No. 22A, SI Yogeshwar reached the spot. SHO also reached there. He recorded the statement of Balam Singh and got the case registered. He found a match box lying near the entrance of the stair case and seized the same vide memo Ex. PW 9/A. The blood stain shirt which Balam Singh was wearing was also seized vide memo Ex. PW 1/B7. On the instruction of SHO a trap was laid near the house of the accused on 16.4.2003. The accused was apprehended. On interrogation the disclosed that the weapon of offence was lying in the basement itself. He was taken to the basement on 17.4.2003 and there the knife was recovered from crates of campa cola at the pointing out of accused. It is further alleged that blood stains were observed on the underwear of the accused and it was seized on 18.4.2003. The match box found at the entrance of the stair case, the shirt of Balam Singh, the underwear of the accused, the knife alleged to have been recovered at the point of the accused, the clothes of the deceased and the blood gauze piece handed over by the postmortem surgeon were later on sent to laboratory. On serological analysis, human blood of group B was found on the knife and it tallied with the group of blood contained in the gauze piece. Strangely enough, no blood was detected on the shirt of Balam Singh and the blood on the clothes of the deceased gave no reaction.

3. The prosecution in order to establish its case relied heavily upon PW-5, Balam Singh. Prosecution also relied upon PW-9, Vinod Kumar Gupta and PW-12, SI Rajiv Kumar in order to establish their case. The case of the prosecution hinges completely on the testimony of PW-5, Balam Singh, who in his deposition has stated that in the month of April, 2003, he was working as a salesman in the chemist shop of the deceased, Vipin Kumar Gupta, situated at E-5, DDA Market, Masjit Moth, New Delhi. The accused Hare Ram Singh and Gopal were also employed in the same shop. The accused used to work at the cash counter while Gopal worked as a peon in the shop. On 15.04.2003, he attended the duty and was working for the whole day when at about 8:30 p.m., the accused left the shop leaving behind Vipin Gupta and this witness to conduct the business. At about 9:30 p.m., the accused returned. He was rebuked by Vipin Gupta (Guptaji) for absence from duty. At about 10 p.m., the shop was closed. At that time, Hare Ram Singh informed Guptaji that water from the AC had leaked into the basement and that Guptaji could come and inspect the same. Guptaji went down to the basement followed by the accused and shortly thereafter this witness heard cries 'Bachao Bachao'. He went to the staircase slowly because he was handicap due to an accident and called the accused from the top of the stairs at which the accused abused him. According to this witness, the accused came upstairs, pushed the witness aside and left the spot. The witness goes on to depose that he saw Hari Ram inflicting knife blows on the person of Guptaji before leaving the shop. At the time when the accused pushed the witness away, the shirt of the witness got blood stains from the hands of Hare Ram. The police came thereafter. The witness also deposes that before leaving the site of incident, the accused had doused Guptaji with kerosene oil and set him ablaze. Many people gathered outside the shop and on the arrival of the police, he lodged a complaint Exhibit PW 4/B1. The police seized his blood stained shirt. The same is Exhibit PW 4/B7. In cross-examination, the witness admits that there are other chemist shops adjacent to the site of incident and that there is a restaurant near the shop at which 15 persons are always working. There is also a parking lot where some people work. He also states that he was standing outside the shop about 20 or 25 feet away from it when he heard 'Bachao Bachao' and categorically states that blood stains had fallen on his shirt and goes on to say that the accused sprinkled kerosene oil in his presence. He raised hue and cry but nobody tried to apprehend the accused while he was running away. He states that he had watched the entire incident from the top of the stairs.

4. PW-3 is Shiv Parshad, Staff Officer, Fire Brigade, Fire Station, Safdarjung, New Delhi. He states that on 15.04.2003 on receipt of information, he had gone to E-5, DDA Market, Masjid Moth with his fire tender. There he noticed fire in the basement. They extinguished the fire and carried out inspection of the building and found a person lying dead in the basement. Local police arrived at the spot and sent the dead body to AIIMS.

5. PW-4, Dr. Sanjeev Lalwani, conducted postmortem on the body of Vipin Kumar Gupta and found the following injuries:

1. Superficial to deep burns with blackening of skin, redness, singeing of hairs (smell of kerosene) of scalp, chest and abdomen and of genitalia with peeling of skin at places and heat ruptures (right lower limb and left upper limb). Burns were present on face as a whole both upper limbs partly, chest and abdomen on anterior side and partly on back, genitalia, both lower limbs partly (about 70-80%).

2. Stab incised wound of size 2 cm x 0.7 cm x bone deep on right upper arm anteriorly with bleeding situated 4.5 cm below shoulder top.

3. Stab incised wound of size 2 cm x 1.5 cm x muscle deep on left side lower part of neck with bleeding situated 4 cm left to midline and 8 cm below left ear lobule.

4. Incised wound of size 3.5 cm x 0.5 cm x bone deep on left side scapular region obliquely placed 8 cm left lateral to midline, 12 cm below shoulder top with bleeding.

5. Incised wound of size 2 cm x 1 cm x bone deep on lt. side scapular region vertically placed and situated 1 cm below injury No. 4.

6. Stab incised wound 3 cm x 0.7 cm x abdominal cavity deep situated 17 cm lt. lateral to umblicus, 100 cm above sole of lt. foot with protrusion of intestine and bleeding. The intestine was found burnt (wound was slightly oblique).

7. Stab incised wound 5 cm x 3.5 cm x abdominal cavity deep with protrusion of intestine (found burnt) situated 18 cm. Lt. lateral to midline and 3 cm above injury No. 6. The wound was slightly oblique with active bleeding evident as blood clot.

8. Stab incised wound 3 cm x 1.3 cm x abd. cavity deep with bleeding situated 17 cm lt. lateral to midline and 4 cm above injury No. 7. The track of wound was medially and upward and pierce the intestine and stomach at posterior inf. surface (two wounds).

9. Stab incised wound in midline on back of size 3.5 cm x 1 cm x bone deep shaped with bleeding situated 23 cm below nape of neck. The wound was obliquely placed.

10. Stab incised wound of size 3 cm x 1 cm x bone deep cavity deep with bleeding on back situated 2 cm below injury No. 9 and 2 cm left lateral to midline, the track of wound was laterally and anteriorly.

11. Stab incised wound of size 2.5 cm x 0.5 cm x cavity deep on back 2 cm lt. to midline at D7-8 level with bleeding. The track of wound was oblique, laterally and pierces the left lung by passing through the costal margins and piercing inter costal muscles and pleura and parenchyma through and through and cutting superficially the upper lobe parenchyrma.

12. Stab incised wound 3 cm x 0.5 cm x cavity deep on back situated 3 cm below injury No. 11 with bleeding. The track of wound was obliquely upward and towards right and pierces the right lobe of lung and cut its parenchyrma at upper middle and lower lobe 1 cm deep on posterior surface.

6. PW-7 is Constable Rampal who deposed that on the night intervening 15/16.04.2003, he visited the crime scene at E-5, DDA Market, Masjid Moth, New Delhi and took 21 photographs of the site of crime from various angles. The negative and the positive prints are exhibited as Exhibit PW 7/1-21 and PW 7/22-42 respectively.

7. PW-9 is Vinod Kumar Gupta. He deposes to the effect that Vipin Kumar Gupta was his brother and was running a chemist shop as also a kerosene depot at E-5, DDA Market, Masjid Moth, New Delhi. Hare Ram and Balam Singh were working at his shop. On 15.04.2003, he came to know about the death of his brother and went to the shop and found the dead body of his brother lying in a burnt condition. The dead body was removed to AIIMS Hospital for postmortem. Subsequently, a match box with blood stains thereon was recovered near the drums in the basement. A blood stained knife was recovered at the instance of the accused on the following day from the crates of Campa Cola lying in the basement.

8. PW-10, SI Yogeshwar Singh, Special Cell, Lodhi Colony states on oath that on 15.04.2003, he was posted at Police Station Chitranjan Park on which day an information was received vide DD No. 22-A. A copy of which is Exhibit PW 1/B. He along with Constable Om Parkash went to the spot at E-5 basement, DDA Market, Masjid Moth, G.K.-III, New Delhi, where he found that a fire had occurred in the basement. Fire Brigade and the SHO had already arrived at the spot. After the fire was extinguished, he along with others entered the basement and found a dead body (burnt) and having some stab marks, was lying there in the basement. There was a lot of water which had been poured therein by the Fire Brigade in order to clinch the fire. Smell of kerosene was emanating. The dead body was stated to be that of Vipin Gupta. PW-5, Balam Singh met Investigating Officer and got his statement recorded which is Exhibit PW 4/B1 on the basis of which F.I.R. was registered. SHO seized the blood stained shirt of Balam Singh vide memo Exhibit PW 4/B7. Sample of water was also taken into possession besides other recoveries made.

9. PW-11, SI Mahesh Kumar, is the Draftsman who had prepared the scaled site plan Exhibit PW 11/A. PW-12 is SI Rajiv Kumar, on deputation with CBI, Lodhi Complex who states on oath that on 16.04.2003, he was posted at Police Station Chitranjan Park. When he came to the Police Station in the morning, he was informed that a murder has been committed at E-5, DDA Market, Masjid Moth, G.K.-III, New Delhi and also that the SHO had already reached the spot. This witness states to have reached the spot later on when the SHO was conducting the proceedings. A match box Exhibit P-2 was seized vide memo Exhibit PW 9/A. The witness then laid a trap for the accused and apprehended the accused on 16.04.2003 at which time the accused made a disclosure which led to the recovery of the knife on 17.04.2003 since the basement was flooded with water and any recovery on the same night was not possible. A blood stained underwear of the accused, which he was wearing, was got removed and was taken into possession vide memo Exhibit PW 12/C. On Court questions, the witness states that at the time of arrest of the accused, the accused was not surprised to see the police and did not try to escape and continued to come towards them till he was caught hold of by Head Constable Vijay Pal. The accused was then taken to the Police Station in private car No. DHV 24. The accused was interrogated in the room of the SHO. The interrogation continued for about 45 minutes. The accused then signed the disclosure statement. The witness goes on to depose that 4 or 5 persons were engaged to drain out the water from the basement. A pump was also arranged to empty the basement of water.

10. PW-13 is Inspector Sushil Kumar, who was the SHO, Police Station Chitranjan Park and carried out investigation. He in cross-examination states that he did not join any independent witness nor issued any notice to them under Section 161 Cr.P.C. The case of the prosecution was put to the accused who in his statement under Section 313 Cr.P.C. picked up the defense that PW-5, Balam Singh, did not attend to work on the fateful day since Balam Singh was suffering from a fracture which he had suffered in an accident few days prior to the incident. He also claims to have been falsely implicated.

11. The trial court, based on the material placed before it, reached the conclusion that the prosecution had been able to establish its case beyond a shadow of doubt. The trial court based its judgment on the testimony of PW-5, Balam Singh, whom the court held was a reliable witness. The court, however, was pleased to reject recovery of the knife made at the instance of the accused. It also recorded a finding that motive for the offence has not been proved but since the testimony of PW-5, according to the learned judge, was credible, the appellant was held guilty for the offence under Section 302 IPC. The findings of the trial court have been criticized by counsel for the appellant who submits that PW-5 is a planted witness whose testimony stands belied by the CFSL report as also by the photographs of the crime scene and the site plan relied upon by the prosecution. He contends that if PW-5 is found to be a bad witness, the entire prosecution's case would fall. Learned Counsel for the State, on the other hand, had laid great emphasis on the testimony of PW-5 as being a natural and a truthful witness to the occurrence.

12. With the assistance of learned Counsel, we have carefully gone through the entire record and have very carefully examined the testimony of PW-5, Balam Singh. From the testimony of PW-5, we find that the witness has deposed to having seen the assault by the accused on Vipin Gupta as also the accused setting Vipin Gupta ablaze. He claims that he saw all this from above the steps leading to the basement. He also claims that he heard the screams of the deceased when he was outside the shop at a distance of 25 paces. On a closer analysis of the deposition of this witness, we find that there is nothing on record to corroborate the fact that Balam Singh actually attended work on the day of the incident. The prosecution has not produced Gopal who is stated to be employed with Balam Singh and the accused in the shop of the deceased on the day of occurrence. The story put forth by PW-5, Balam Singh, that he saw the incident from top of the steps leading to the basement, also seems to be a improbable since according to the site plan and according to the photographs of the crime scene, Balam Singh could not have seen the occurrence from the spot where he is stated to have been present. The stairs to the basement close to the bottom wind to the right and the place of occurrence is not visible from the stairs top. We also noticed that Balam Singh admittedly suffered a fracture in the leg and was not in a position to move freely due to an accident that had occurred a couple of days prior to the incident. In this view, it is quite likely that Balam Singh had not attended work as is the case put forth by the defense. Further Balam Singh states that the accused, after committing the murder, pushed him aside and that the hands of the accused were drenched in blood which blood then was transferred to his shirt. The CFSL does not support this fact as no blood stains were detected on the shirt of Balam Singh. Further, inspite of raising alarm in a busy market place where the assailant is running with blood on hands and clothes, it is surprising that there is no witness to this effect. The testimony of this witness is not free from doubt. The necessary halo of truth is absent and conviction on the sole testimony of this witness is not possible.

13. We find from the evidence on record that the basement was flooded with water yet from the photographs of the crime scene, we find no signs of flooding of the basement even though the photographs were taken soon after the arrival of the police at the crime scene. We also find that the prosecution has deliberately withheld Gopal from the witness box. It was only Gopal who could have testified to Balam Singh having attended work on the fateful day in spite of his injuries, if at all. Lack of corroboration as also the factual aspects stated by Balam Singh not being substantiated by other material on record, we hold that PW-5 is not a trustworthy witness. It is also in evidence that when the accused was taken into custody, he appeared to be perplexed and made no attempts to escape. This conduct of the accused also lends assurance that the case put up by the Prosecution is not a truthful one. To top it all, even the clothes of the accused which were seized allegedly blood stained, were found not to have any blood stains. The manner in which the injuries were inflicted, in all likelihood it would have left blood on the clothes of the assailant. The next aspect which could have connected the accused with the crime is the recovery of the weapon of offence. This, we find that even the trial court has not relied upon the same yet proceeded to convict him on the basis of the statement of PW-5.

14. In view of the above discussion, we are firmly of the view that the judgment of conviction under challenge cannot be sustained. Consequently, we set aside the judgment dated 13.09.2005 and order dated 19.09.2005 and acquit the appellant of all charges framed. Criminal Appeal No. 936 of 2005 is allowed and disposed of. The appellant be set at liberty forthwith unless required in any other case.