Raju vs State
2009 Latest Caselaw 1130 Del

*                       IN THE HIGH COURT OF DELHI

%                         Judgment reserved on : 30.03.2009
                         Judgment delivered on: 02.04.2009

+                                   CRL.A. No.538/2008

         RAJU                                  ...Appellant
                        Through :   Mr.P.S.Goindi, Advocate.

                                     versus

         STATE                                ...Respondent
                        Through :   Mr.Pawan Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?            Yes

3. Whether judgment should be reported in Digest?                 Yes


: PRADEEP NANDRAJOG, J.

1. Case of the prosecution is that PW-2 Yashveer, the

brother of the deceased and PW-6 Kanwar Singh, the father of

the deceased had witnessed appellant stabbing Hari Krishan in

Gali No.3, Padam Nagar, Sarai Rohilla, Delhi and had fled. It

was further the case of the prosecution that HC Satya Narain

PW-10 and HC Rajender Prasad PW-17, on patrolling duty, had

also chanced to see the appellant stabbing the deceased and

in spite of being chased, had fled.

2. The date of the incident is 17.3.2005. The time is

stated to be between 8:20 PM to 8:30 PM.

3. Information was received at the police station about

a man being stabbed in Padam Nagar, Sarai Rohilla, which was

recorded at 20.47 PM vide DD No.31A Ex.PW-3/A. SI R.B.Joshi

accompanied by Const. Suresh left for the spot and learnt on

reaching there that the injured had been removed to the

hospital in a PCR Van. SI R.B. Joshi went to the hospital and

learnt that the injured had been brought dead. He obtained a

copy of the MLC Ex.PW-15/A of the deceased which records

under the caption: NAME OF THE RELATIVE OR FRIEND : HC OM

PRAKASH. It records that the injured was brought at the

hospital i.e. Hindu Rao Hospital at 9.15 PM. SI R.B. Joshi went

back to the spot where the deceased had been stabbed and

met Kanwar Singh PW-6, the father of the deceased who made

a statement Ex.PW-6/A informing that he was present in his

house and his son Hari Krishan (the deceased) had left for

some work and at around 8:30 PM somebody informed him

that a boy was quarreling with his son in Gali No.3.

Accompanied with his son Yashveer, he i.e. Kanwar Singh

immediately proceeded towards Gali No.3 and on reaching

there saw appellant who resides in House No.221/13, Gali

No.8, Padam Nagar, assaulting his son with a knife. On seeing

this, he cried for help. Two policemen responded to his cries.

Raju fled. He was chased but managed to run away. Making

an endorsement Ex.PW-20/A SI R.B. Joshi forwarded the

statement to the police station at 11:00 PM so that an FIR

could be registered. The FIR Ex.PW-8/A was registered at the

police station at 11:15 PM.

4. As per the father of the deceased who claimed to

be an eye-witness, his son was stabbed in Gali No.3 and had

run towards his house which was on Gali No.2 and on the way

his slipper had come loose. SI R.B. Joshi lifted a blood sample

from street No.2, blood mixed earth and earth control from

street No.2 as recorded in the seizure memo Ex.PW-3/D. Blood

sample, blood mixed earth and earth control was also picked

up from street No.3 as per seizure memo Ex.PW-3/B. The

chappal recovered between street No.2 and 3 was seized vide

seizure memo Ex.PW-3/C. Rough site plan Ex.PW-19/A was

prepared by Inspector Daya Nand PW-19 who had also joined

the investigation by then.

5. Appellant Raju was apprehended at 01:30 AM on

18.3.2005 i.e. in the intervening night of 17th and 18th March

2005, by HC Satnarayan and Const.Rajender and Inspector

Daya Nand as recorded in the arrest memo Ex.PW-10/D.

Personal search of the appellant was conducted as recorded in

the memo Ex.PW-10/C. A knife was recovered from the

appellant which was seized and after sketch Ex.PW-10/A

thereof was prepared, was put inside a parcel on which the

seal of „DN‟ was affixed and seizure memo Ex.PW-10/B was

drawn. The shirt of the appellant stated to be stained with

blood was seized vide seizure memo Ex.PW-10/G and sealed

„DN‟ was affixed on the parcel prepared.

6. The dead body of Hari Krishan was sent to the

mortuary where Dr.C.B.Dabas PW-5 conducted the post-

mortem and gave his report Ex.PW-5/A noting therein that the

post mortem commenced at 2:00 PM on 18.3.2005 and that six

injuries were noted on the person of the deceased out of which

two were deep penetrating injuries and the remaining were

incised cuts. The deceased had died as a result of the stab

wounds, both of which were opined to be sufficient in the

ordinary course of nature to cause death. After conducting the

post-mortem Dr.C.B. Dabas handed over a blood sample of the

deceased on a gauze and his clothes to the police which were

seized vide memo Ex.PW-19/A.

7. Surprisingly enough, evidenced by Ex.PW-11/A, the

photocopy of the malkhana register, the sealed parcel

containing the blood sample of the deceased and the clothes

of the deceased as also the clothes recovered from the

appellant at the time of his arrest as also the knife recovered

from the appellant at the time of his arrest were all given to

the malkhana mohrir i.e. the constable in-charge of the

malkhana at one time and kept by him in the malkhana.

Relevant would it be to note that the entry of all the parcels is

one and it stands firstly recorded that the blood sample and

the clothes of the deceased have been received in a parcel;

thereafter it is recorded that the clothes of the appellant have

been received in a parcel followed by it being recorded that

the knife recovered from the appellant has been received in a

parcel.

8. Draftsman SI Mahesh Kumar PW-18 was taken to

the place of occurrence on 27.3.2005 and the site plan to scale

Ex.PW-18/A was prepared by him. The site plan Ex.PW-18/A

lists four spots „A‟, „B‟, „C‟ and „D‟ of significance. Spot marked

„A‟ shows the place where appellant Raju stabbed the

deceased. Spot marked „B‟ shows the place from where

Kanwar Singh and Yashvir Singh witnessed the occurrence.

Spot marked „C‟ shows the place where a pair of hawai

chappal of the deceased were found. The spot marked „D‟

shows the place where the deceased fell at the entrance of

gali No.2. It is apparent that to reach from spot marked „A‟ to

spot marked „D‟ one has to cross the spot marked „B‟ and

thereafter the spot marked „C‟. Further, it is apparent that if a

line is drawn to join the spot marked „A‟ „B‟ „C‟ and „D‟ the

same would be a straight line joining the spot marked „A‟ to

spot marked „B‟ and would thereafter be at an angle of 90

degrees to the left thereby forming the line which joins spot

marked „B‟ and the spot marked „C‟. The line would continue

to be a straight line reaching the spot marked „D‟. The

distance covered between the spot marked „A‟ and the spot

marked „D‟ would be about 200 meters.

9. At the trial Kanwal Singh PW-6, the father of the

deceased and Yashvir PW-2, the brother of the deceased

deposed the same facts which were disclosed by PW-6 in his

statement Ex.PW-6/A, which facts have been noted in brief by

us in para 3 above. HC Satya Narain PW-10 and HC Rajender

Prasad PW-17 deposed that they were on patrolling duty on

17.3.2005 and were near gali No.3, Padam Nagar, Sarai Rohilla

when cries of somebody attracted them towards the gali and

they saw the appellant inflicting knife blows on the deceased

and fleeing.

10. After noting the deposition of PW-2, PW-6, PW-10

and PW-17 and without any analysis of their testimony, in para

6 of the impugned judgment and order dated 31.10.2007 the

learned Trial Judge has concluded as under:-

"PW-2, PW-6, PW-10 and PW-17 are the eye witnesses to the incident. Perusal of their evidence shows that they have supported the case of the prosecution. They have deposed that accused has given the Chhura blows on the person of the deceased and that accused after giving the Chhura blows has ran away from the spot. They have been cross-examined by the accused but no such material has come on record to disbelieve their testimonies.

Evidence of PW-10 and PW-17 also proves that accused was apprehended with the blood stained Chhura near State Bank of India Old Rohtak Road. Accused was arrested and the Chhura was seized."

11. It is unfortunate that the learned Trial Judge has

ignored certain very vital circumstances which establish that

neither PW-2 nor PW-6 i.e. the brother and the father of the

deceased were even near the place of the incident. While

noting the site plan in para 8 above we have noted that as per

PW-2 and PW-6 they witnessed the incident from the place

marked „B‟. If this be so, it is apparent that to reach the spot

marked „C‟ and thereon to the spot marked „D‟, the injured had

to cross the spot marked „B‟. Obviously, the injured crossed

the spot marked „B‟ for the reason the blood of the deceased

was lifted from the spot marked „A‟ and spot marked „D‟. It is

just not possible that PW-2 and PW-6, if present at the spot,

would not have held on to the deceased when he reached

point „C‟. Spot marked „D‟ is at the entrance of gali No.2 in

which the house of the two witnesses and the deceased was

situated. The spot where the deceased was injured is in gali

No.3. It is obvious that the deceased, in an injured condition,

ran towards his house to seek a rescue. If his father and

brother were already on the street No.3, at the entrance

whereof is the spot marked „B‟, where was the need for him to

run further down? Further, the learned Trial Judge has ignored

the fact that in the MLC Ex.PW-15/A the name of the person

who has brought the injured has been recorded as HC Om

Prakash. Had PW-2 and PW-6 been present at the spot, if not

both, at least one of them would have accompanied the

injured to the hospital, and being a close relation, one being

the father and the other the brother, would have told the

doctor on duty that they had brought the injured to the

hospital. Not only that. SI R.B.Joshi PW-20 accompanied by

Const.Suresh who left for the spot where the occurrence took

place when DD Entry No.31-A was recorded at the police

station at 20:47 PM has categorically deposed that on reaching

the spot he learnt that the injured had been removed to the

hospital in a PCR Van. That leaving behind Const.Suresh at the

spot, he proceeded to the hospital and learnt that the injured

had been declared dead, therefore he obtained a copy of the

MLC of the deceased and finding no eye witness in the

hospital, returned to the spot where he met Kanwar Singh PW-

6, the father of the deceased whose statement Ex.PW-6/A was

recorded by him. Assuming that the doctor on duty ignored

the presence of either PW-2 or PW-6 in the hospital and since

the injured was removed to the hospital in a PCR Van, wrote

that the person who brought the injured to the hospital was HC

Om Prakash, PW-2 and PW-6, if present in the hospital would

have certainly met SI R.B.Joshi. They, not being seen by SI

R.B.Joshi in the hospital establishes that the two were not in

the hospital. If this be so, it is unbelievable that the two were

present in the street when Hari Kishan was stabbed. The

learned Trial Judge has further ignored that on being cross

examined, PW-6 disclosed that the distance between his house

and gali No.3 is 50 meters and it takes about 2 to 3 minutes to

reach gali No.3. Ignoring the fact that the site plan Ex.PW-

18/A shows the distance to be more, a question needs to be

posed and answer: „Whether it was possible for PW-2 and PW-6

to reach the spot where Hari Kishan was stabbed and have

seen him being stabbed?' Now, both PW-2 and PW-6 have

stated that they were in their house and somebody informed

them that a person was quarreling with Hari Kishan in gali

No.3. This led them to gali No.3. It is apparent that the

person, who on seeing the quarrel in gali No.3, went to inform

PW-2 and PW-6, would take 2 to 3 minutes to go to the house

of PW-2 and PW-6, who, on receipt of information of the

quarrel, would take 2 to 3 minutes to reach gali No.3 from

their house. The MLC of the deceased shows that he has been

inflicted with 2 stab injuries and 4 incised cuts. There are no

lacerated wounds nor are there any contusion wounds;

absence whereof shows that no scuffle took place, and he who

inflicted the wounds on the deceased did so by the use of a

sharp edged weapon; meaning thereby, the assault was quick

and swift. The said facts further de-probablize the presence of

PW-2 and PW-6 at the spot.

12. No doubt, the two police officers namely HC Satya

Narain PW-10 and HC Rajender Prasad PW-17 have deposed of

having seen the appellant stabbing the deceased, but

surprisingly enough in the site plan Ex.PW-18/A, the place

where the two saw the incident has not been marked; it is

interesting to note that the place wherefrom PW-2 and PW-6

claimed to have witnessed the incident has been shown. The

presence of the said two police officers at the spot is doubtful

because no police officer i.e. neither the Officer In Charge of

the PCR namely HC Om Prakash who removed the injured to

the hospital, nor SI R.B.Joshi have deposed that they saw or

met the two police officers i.e. PW-10 and PW-17 at the spot.

Both i.e. PW-10 and PW-17 are beat constables and the

probability of the two deposing at the instance of PW-6 cannot

be ruled out. It is not unknown in the city of Delhi that beat

constables developed friendship with some people in the

locality assigned to the beat constable. In any case, the

presence of PW-10 and PW-17 at the spot is doubtful because

neither SI R.B.Joshi nor HC Om Prakash has deposed of having

seen them at the spot. We note that HC Om Prakash has been

examined as PW-9.

13. With the eye witness account failing, the only other

incriminating evidence sought to be brought on record by the

appellant is the recovery of a blood stained knife from him

when he was arrested and the presence of human blood of the

same group as that of the deceased from his shirt at the time

of his arrest.

14. The seizure memo of the knife and the shirt i.e.

Ex.PW-10/B and Ex.PW-10/G evidence that the seal of DN was

affixed on the parcels prepared in which the knife and the shirt

were kept. We have noted hereinabove that the appellant was

arrested at 1:30 AM on 18.3.2005. The incident took place at

around 8:30 PM on 17.3.2005. It is apparent that the appellant

was arrested in the intervening night (in the middle of the

night) of 17th and 18th March 2005. We have noted

hereinabove that the post-mortem of the deceased

commenced at 2:10 PM on 18.3.2005. We have noted

hereinabove that the Malkhana register shows that the parcels

containing the blood sample of the deceased as also the parcel

containing the blood stained clothes of the deceased were

deposited in the Malkhana along with the parcel containing the

knife and the clothes of the appellant. The learned Trial Judge

has ignored that under the circumstances there was a clear

possibility of the knife and the shirt of the appellant being

tempered with, more so for the reason, the seal DN remained

with the investigating officer. We note that not a single

witness to the seizure memos has deposed that after seizure

the articles concerned was put inside a parcel which was

sealed with seal of DN and that the said seal was handed over

by the IO to somebody else.

15. That apart, as observed in the decisions reported as

Deva Singh Vs. State of Rajasthan 1999 Cri LJ 265 (SC),

Prabhoo Vs. State of U.P. AIR 1963 SC 1113 and Surjeet Singh

Vs. State of Punjab AIR 1994 SC 110, mere recoveries of a

blood stained knife or an axe and/or recovery of blood stained

clothes stated to be worn by the assailant pursuant to the

disclosure statement of the assailant, without any further

evidence, are insufficient circumstances leading to a

conclusion on a reasonable hypothesis that the person

concerned is guilty of the offence.

16. The appeal is allowed. The impugned judgment

and order dated 31.10.2007 is set aside. The appellant is

acquitted of the charge of having murdered Hari Kishan.

17. Copy of this order be sent to the Superintendent

Central Jail Tihar for compliance. The appellant be set free if

not required in any other case.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

April 02, 2009 mm