Ankush Gupta vs State
2009 Latest Caselaw 3016 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                        Judgment Reserved on: 31st July, 2009
                        Judgment Delivered on: 06th August, 2009


+                         CRL.A.462/2007


       ANKUSH GUPTA                            ..... Appellant
               Through:         Mr. D.M. Bhalla, Advocate.

                          versus

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


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

     3. Whether the judgment should be reported in the
        Digest?                                  Yes


INDERMEET KAUR, J.

1. This appeal has been directed against the impugned

judgment dated 27.10.2006 whereby the appellant Ankush

Gupta has been convicted for having committed murder of

deceased Rajeev Gupta.

2. Version of the prosecution was unfolded on the

statement of Rajesh Burman PW-3 brother-in-law of the

deceased and a purported eye-witness to the incident. His

statement Ex.PW-3/A recorded on 03.6.2002 is to the effect

that on 03.6.2002 his brother-in-law Rajeev Gupta had

visited the house of his brother Pradeep at Flat No. 17D,

Dilshad Garden along with his wife Anita Gupta. Predeep

had sustained injuries on the previous day i.e. on 02.6.2002

because of a fight which had ensued between him and the

relatives of Shri Kishan Goel pursuant to which an FIR had

been lodged in Police Station Seemapuri. At about 7.30 PM

when Rajeev and his wife Anita were returning back, the

accused Ankush Gupta had an altercation with Rajeev. He

i.e. the accused took out a dagger and stabbed Rajeev on the

left side of his chest and fled away with the knife. PW-3 had

removed the injured to the Guru Teg Bahadur Hospital

where he had been declared brought dead. Ex.PW-3/A

categorically recited that Ankush was the offender and legal

action should be taken against him. On this Statement

Ex.PW-3/A, the endorsement Ex.PW-9/A was made and the

rukka was taken by Const. Ramesh PW-6 pursuant to which

the formal FIR was registered.

4. Anita Gupta PW-2 the wife of the deceased was the

second eye-witness to the incident and she had corroborated

the version as set up by PW-3 in his statement Ex.PW-3/A.

5. The investigative team was headed by Investigating

Officer SI Sushil Kumar PW-9 who accompanied by PW-6

had reached the spot i.e. in front of house No.18A, Pocket A,

Dilshad Garden. Blood was lying on the ground but no eye-

witness could be located; the injured had already been

removed to the Guru Teg Bahadur Hospital where he had

been declared brought dead. PW-9 had recorded the

statement Ex.PW-3/A of Rajesh Burman PW-3 in the hospital

pursuant to which the case of the prosecution had been set

in motion.

6. Since the offence was opined to be one of murder, the

investigation was thereafter handed over to SHO i.e.

Inspector Y.K. Tyagi PW-19. Blood and earth control were

lifted from the spot. The photographer was summoned and

nine photographs Ex.PW-1/1 to Ex.PW-1/9 of the scene of

crime were taken from different angles by Ratan Singh

PW-7. Const.Rambir PW-15 had delivered the copy of the

FIR to the Elaka Magistrate on the same day. Exhibits which

have been retrieved from the spot had been handed over by

the Investigating Officer to H.C.Ravinder Kumar PW-4 who

deposited them in the Malkhana of Police Station Seemapuri.

7. At the trial, the MLC Ex.PW-5/A of the deceased Rajeev

Gupta was proved by Dr.Parmeshwar Ram PW-5 by

identifying the signatures of Dr.Rajesh Singh at point „A‟

who had examined the patient at that time and had been

declared brought dead to the casualty.

8. On 04.6.2002, post mortem of the deceased was

conducted by Dr.K.K.Banerjee PW-13 who had noted one

ante mortem injury on his body i.e. :

"stab wound 3.5cm X 1cm X cavity deep Wedge shaped vertically placed on the front of right side of chest a little away from mid line, the upper end being 4 cm below supra sterna notch, and lower and being 11 cm above the xiphoid process. The lower end was more acute with abraded margin and upper and was little blunt. The wound was directed on probing into the mediastinum of chest."

9. The cause of death was opined as shock as result of

ante mortem injury to major blood vessels and internal

organs produced by a pointed weapon whose one edge is

more sharp than the other. Injury no.1 was sufficient to

cause death in the ordinary course of nature. The report

was proved as Ex.PW-13/A. Dead body was thereafter

handed over to Sanjeev Gupta PW-1 the brother of the

deceased who had identified the same vide memo Ex.PW-

1/A.

10. Inspector Y.K. Tyagi PW-19 arrested the accused on

04.6.2002 from in front of S.G. Pocket vide memo Ex.PW-

3/D; his personal search was conducted vide memo Ex.PW-

3/E; his disclosure statement Ex.PW-3/F was recorded

pursuant to which dagger used in the incident containing

blood stains was recovered at his pointing out from the roof

of a Pyaoo which was situated adjacent to the entrance gate

of A pocket. It was taken into possession vide memo Ex.PW-

3/G and sketch of the dagger was prepared Ex.PW-3/H.

11. On 30.7.2002, the Investigation Officer obtained the

subsequent opinion of Dr.K.K.Banerjee PW-13 on this

weapon of offence. PW-13 had opined that injury no.1 on the

dead body of Rajeev Gupta was possible with the type of

weapon which had been sent to him for examination; this

opinion was endorsed in the report Ex.PW-13/B. Scaled site

plan was prepared by Const. Sonu Kaushik PW-14 on

01.8.2002 Ex.PW-14/A.

12. The Trial Judge had held the appellant guilty for the

offence of murder of Rajeev Gupta in view of the versions of

Anita PW-2 wife of deceased as also Rajesh Burman PW-3

brother in law of the deceased who claimed to be eye

witnesses.

13. The subsequent recovery of the knife which was opined

by the doctor to be weapon of offence and the cause of injury

no.1 on the dead body of Rajesh Gupta which was the cause

of his death was another incriminating circumstance held

against the appellant. It was this evidence which had

sustained the conviction against him.

14. On behalf of the appellant, it has been argued that the

judgment of the Trial Judge is illegal; he and has not

appreciated the evidence which had been brought on record

in the correct perspective. Attention has been drawn to the

testimony of DW-1 Sh.Devender Kumar Gupta the father of

the appellant. It is stated that the version of DW-1 had been

brushed aside lightly without taking into account that DW-1

had categorically on oath deposed:

"............. Sachin is the nephew of my brother in law Shri Kishan Goel. A case has been regd. against them by Rajesh Burman in which three persons are named. On the night of 3.6.02, after midnight, my son Ankush Gupta was lifted by the police from my house. The alleged incident was reported in the Newspapers wherein it was reported that one boy Raju was arrested by the police in this case but was released. The newspapers reporting are marked A to Mark C."

15. It is argued that the newspaper reports Ex.D/BC and

Mark A to Mark C clearly show that one Raju had been

apprehended by the police in the first instance and this was

pursuant to the public beating which he received at the

hands of the crowd which had gathered there at the time of

incident and had apprehended Raju who was trying to flee

from the place of occurrence; it is stated that the

Investigation Officer, in his cross-examination has admitted

that he had, in fact, questioned Raju but thereafter he was

allowed to go scot free. It is argued that the real culprit is

Raju but prosecution has not been able to answer as to why

he was allowed to let go. It is argued that it also come in the

version of PW-2 and PW-3 that there was a previous

animosity between the families of the appellant Ankush

Gupta and the deceased; all the aforestated reasons clearly

establish that the testimony of PW-2 and PW-3 is suspect and

appellant has been falsely roped in for a crime not

committed by him; real culprit is Raju.

16. PW-2 and PW-3 claim to be the eye-witnesses to the

incident. Before adverting to their versions, let us examine

the site plan Ex.PW-14/A. Perusal of the same shows that

point „A‟ is the public road in front of Flat No.18A, Pocket-A,

Dilshad Garden where the deceased Rajeev Gupta had been

stabbed. Point „B‟ is the place from where Rajesh Burman

the eye-witness had witnessed the occurrence i.e. at a

distance of 8 to 9 feet. The flats are located in the DDA

Colony of Dilshad Garden and the incident had occurred on

the service lane in front of Flat No.18A connecting it to the

main road. This has also been elicited in the version of

Investigating Officer PW-19.

17. Let us now examine the statements of the alleged eye-

witnesses. Anita Gupta PW-2 was the wife of the deceased.

She had on oath stated that she alongwith her husband

Rajeev Gupta had gone to meet her brother in Flat No.18A,

Dilshad Garden situated on the ground floor. At about 7.30

PM when they were returning back they were followed by

their elder brother who had come to see them off; in the

meantime Ankush Gupta came from Flat no.17D and

threatened her husband that he would be killed; he stated

that he had given beatings to his brother in law and now it

was the turn of his well-wishers; accused took out knife and

hit it against the chest of her husband who fell down; he was

thereafter removed to the hospital.

18. In her cross-examination PW-2 has stated that the

place of occurrence is a thoroughfare; incident had taken

place at about 7.30 PM; she had not accompanied her

deceased husband to the hospital. She denied the

suggestion that the accused had been falsely implicated in

connivance with the police.

19. PW-3 the brother-in-law of the deceased as also the

complainant had deposed that one day prior to the incident

i.e. on 02.6.2002 his younger brother Pradeep had been

beaten by some persons who had been sent by Shri Krishan

Goel; pursuant to which a case was registered in Police

Station Seemapuri. This version of PW-3 has been sought to

be corroborated by SI Sultan Singh PW-18, who had on

02.6.2002 while on emergency duty at Police Station

Seemapuri received DD No.20A and on reaching house no.

17D, Pocket-A, Dilshad Garden i.e. the residence of Pradeep,

had learnt that the injured Pradeep had already been

removed to the hospital; he recorded statement of Pradeep

pursuant to which FIR No.175/02 had been registered under

Sections 342/34 IPC. The persons accused of that offence

were one Pawan Bhagat, Sachin Aggarwal and Ashok Jain.

20. In cross-examination PW-3 has stated that Ashok Jain

and his friends had beaten his brother Pradeep on the

previous day. Devender Kumar Gupta DW-1 father of the

accused had deposed that Sachin is the nephew of his

borther-in-law Shri Krishan Goel and a case had been

registered against them on the complaint of Pradeep.

21. This evidence has established that on 02.6.2002 i.e.

one day prior to the fateful day an FIR had been registered

in Police Station Seempuri against Sachin nephew of Shri

Kishan Goel who was the brother-in-law of DW-1 and father

of the appellant. Animosity to the extent of enmity was

brewing between the family of accused Ankush Gupta and

the complainant; matter had reached a sore point which had

necessiciated the registration of an FIR; Pradeep had

sustained serious injuries at the hands of the family

members of present appellant Ankush Gupta; so much so

that he had become bed ridden and was unable to climb the

flight of stairs to his own house; in this situation Lal Chand

Shamra PW-12 his neighbour had permitted Pradeep to

temporarily reside in his ground floor at House No.18A,

Pocket-A, Dilshad Garden which had subsequently become

the place of occurrence. This is corroborated from the

testimony of PW-12.

22. PW-3 had also stated that one month prior to this incident

an altercation between uncle of the appellant Ankush and his

brother Pradeep had taken place on the point of the tying of a

stray dog which has been corroborated by the accused himself

in his statement under Section 313 Cr. P.C. wherein he had

stated that trivial arguments between his family members and

that of the complainant over a pet dog had also taken place

earlier to this incident. Appellant had further voiced his

defence stating that because of this previous enmity he has

been falsely implicated.

23. PW-3 has on oath recited that at about 7.30 PM when his

sister and his Jeeja i.e. Anita and deceased Rajeev Gupta were

coming back to their home, PW-3 being about 8 to 10 steps

behind them, saw that the accused Ankush Gupta come there

and had an altercation with his sister and her husband; he

stabbed Rajeev Gupta who fell down on the spot; accused fled

away with the knife. PW-3 removed the injured to the hospital.

24. In his cross-examination, he has stated that nobody was

present with him when he taken the injured to the hospital; his

sister had not accompanied him to the hospital. He denied the

suggestion that someone else had stabbed the deceased and

the appellant has been falsely implicated.

25. Testimony of DW-1 has already been discussed supra. He

was the father of the accused and his version is to the effect

that because of earlier enmity brewing between the family of

the complainant and that of the appellant, firstly over an issue

of the tying of a stray dog, which incident was a month old and

thereafter on 02.6.2002 FIR have been registered against

Sachin for having caused grievous hurt to Pradeep; and Sachin

being closely related to the appellant, for this reason the

appellant has been falsely implicated.

26. DW-1 had on oath deposed that his son had been picked

up by police on the night of 03.2.2002 after mid-night; the real

culprit was one Raju who had been arrested by the police and

this had also been published in the newspaper but Raju had

thereafter been released. The newspaper cutting had also been

placed on record. DW-1 further deposed that recovery of the

knife had also been falsely planted upon his son.

27. From this evidence what can be gathered is:

PW-2 and deceased Rajeev Gupta had gone to visit

Pradeep on 03.6.2002 who had sustained injuries on the

previous day; when they were returning back altercation

took place between Rajeev Gupta and the assailant; the

assailant stabbed him in his chest pursuant to which he died;

incident had occurred in front of Flat No. 18A, Pocket-A, Dilshad

Garden; Rajeev Gupta was removed hospital by Rajesh Burman;

MLC Ex.PW-5/A is proof of the said fact; admittedly Rajeev

Gupta had succumbed to his death on 03.6.2002.

28. All these facts stand admitted. The sole plea of the

appellant that he is not the culprit and the culprit is Raju who

had in fact been apprehended by the police when he was trying

to flee from the place of occurrence, he had been nabbed,

queried and questioned but for reasons unexplained he had

been allowed to go scot free.

29. PW-2 and PW-3 who are the stated eye-witnesses had

categorically been suggested by learned Defence Counsel that

the present appellant had been falsely implicated and the real

culprit was some other person. This is also the plea taken by

the appellant in his statement under Section 313 Cr.P.C.

wherein he has stated that because of previous enmity between

his family and the family of the complainant this case has been

falsely foisted against him. DW-1 his father had reiterated the

stand of his son and had deposed that because of earlier enmity

between the two families i.e. between the family of the accused

and the complainant, the appellant had been lifted by the police

at the behest of Rajesh Burman and this enmity was evidenced

by the fact that one day prior to the incident i.e. 02.6.2002, on

the complaint of Pradeep (the brother of Rajesh Burman),

Sachin the nephew of brother-in-law of DW-1 and first cousin of

the appellant had been arrested by the police for causing

injuries to Pradeep. It has also come on record that Pradeep

had sustained serious injuries pursuant to the incident of

02.6.2002, so much so, that he had to temporarily shift

residence and stay on the ground floor of a flat of his friend as

he could not climb the flight of stairs to his own flat i.e. House

No.17-D, Dilshad Garden.

30. The newspaper publication brought on record on the

version of DW-1 has also been perused. This publication is

dated 04.6.2002 and categorically states that on 03.6.2002 at

Pocket-A, Dilshad Garden Rajeev had been stabbed on his chest

by one person by the name of Raju and the injured had

thereafter succumbed to his injuries. Raju had been arrested by

the police. Investigating Officer Y.K. Tyagi PW-19 had admitted

in his cross-examination that on the day of incident he had

interrogated one boy named Raju. This is in conformity with the

version of DW-1.

31. It has thus been established that there was some person

by the name of Raju who had been interrogated by the

Investigating Officer on the day of incident itself i.e. 03.6.2002;

as per the newspaper publication he was the culprit and he had

been arrested by the police but he had been allowed to let go.

32. The case diaries maintained by the Investigating Officer

have been summoned and perused by this Court. The entries of

03.6.2002 show that, in fact, Inspector Y.K. Tyagi had

interrogated one person by the name of Raju @ Rajender son of

Anand Singh R/o House No.73, Pocket-D, Dilshad Garden and on

query from him Raju had revealed that he was in the company

of Ankush on 03.6.2002 and at about 6.50 PM Ankush had

asked him to accompany him to his Bua's house at Pocket A,

Dilshad Garden for drinking water; when they returning back

they met one uncle with whom Ankush had altercation. Ankush

took out a sharp instrument and stabbed the said uncle on his

chest; uncle fell down; Ankush managed to flee away. Public

gathered there and he i.e. Raju had been apprehended by the

police; he had disclosed the address of Ankush as Flat No. 52-D,

SG Pocket, Dilshad Garden.

33. This case diary further reveals that Raju had been

apprehended by Const. Ramesh No.752/NE who had produced

him before the Investigating Officer. From this version, it

appears that Raju was the first person who had come to know

about this incident; was he a witness or was he the assailant or

was he an accomplice of Ankush? It appears that the

Investigating Officer himself was confused as to what role had

to be attributed to Raju; either way it was not a fit case where

the Investigating Officer should have allowed Raju to get away

scot free; he was neither cited as a witness nor arrayed as a co-

accused. Assailant

34. The next page of the case diary shows that the

Investigating Officer had recorded the statement of Const.

Ramesh No.752/NE, P.S. Sultanpuri after interrogation of Raju

but in this narration there is no mention that Const. Ramesh

had produced Raju before the Investigating Officer.

35. At this stage it is also useful to advert to the testimony of

Const. Ramesh who had come into the witness box as PW-6. He

had on oath stated that on hearing about the incident he had

reached the spot at about 7.45 PM but no eye-witness was

found. Eye-witness Rajesh Burman had met them in the

hospital where his statement was recorded by SI Sushil Kumar.

He has categorically stated that no name of any person from

whom inquires were made at the spot had been noted. In his

cross-examination he has stated that he does not know that if

any boy by the name of Raju was arrested and released on the

next day.

36. This version of PW-6 on oath is definitely not in conformity

with the case diary prepared by the Investigating Officer;

Investigating Officer PW-19 had categorically recorded in the

case diary that Raju had been apprehended by Const. Ramesh

and had been produced before him pursuant to which he had

been queried. Why was Const. Ramesh evading the answers on

the queries as to whether Raju had been arrested and

subsequently released on the next day? PW-6 as per his

version on oath in Court had been accompanied to the spot by

SI Sushil Kumar PW-9. PW-9 in his cross-examination has also

given evasive answers on the specific queries put to him as to

whether Raju had been arrested in connection with this case

and as to whether such a publication had been effected in the

newspaper dated 04.6.2002. The investigative team appears to

be playing a hide and seek and is not coming out with the

truthful version; why and under what circumstances Raju had

been apprehended and arrested and then allowed to go scot

free had not been answered by the prosecution. The narratives

in the case diary are in conflict with the versions of the

investigative team i.e.PW-6. PW-9 and P-19. This has prejudiced

the investigation for which there is no answer.

37. Under Section 172 of the Cr.P.C., the Court has the

unfettered power to examine the entries in the case diary which

is maintained by the Investigating Officer. This is a very

important safeguard. The legislature has reposed complete

trust in the court which is conducting the inquiry or the trial. It

has empowered the Court to call for any such relevant case

diary, if there is any inconsistency or contradiction arising in the

context of the case diary the Court can use the entries for the

purpose of contradicting the Police Officer as provided in Sub-

section (3) of Section 172 of the Cr.P.C. This is based on the

premise that ultimately there can be no better custodian or

guardian of the interest of justice than the Court trying the

case. No Court will deny to itself the power to make use of the

entries in the diary to the advantage of the accused by

contradicting the Police Officer with reference to the contents of

the diary.

38. In Mukund Lal v. Union of India & Anr., AIR 1989 SC 144,

the Supreme Court while upholding the constitutional validity of

Section 172(3) of the Cr.P.C. had inter alia held:

"The public interest requirement from the stand point of the need to ensure a fair trial for an accused is more than sufficiently met by the power conferred on the Court, which is the ultimate custodian of the interest of justice and can always be trusted to be vigilant to ensure that the interest of accused persons standing the trial, is fully safeguarded. This is a factor which must be accorded its due weight. There would be no prejudice or failure of justice to the accused person since the Court can be trusted to look into the police diary for the purpose of protecting his interest."

39. The appellant was arrested in this case on 04.6.2002 at

8.30 PM from his house at C-52, SG Pocket, Dilshad Garden

which is evidenced from the arrest memo Ex.PW-3/D. It is also

not the case of the prosecution that he was absconding.

40. In the overall scenario, what has emerged is that Rajeev

Gupta had died on 03.6.2002; it was a single stab injury on his

chest; incident had occurred in front of House No.18A, Pocket-A,

Dilshad Garden. However, who was the real culprit/assailant;

the appellant or Raju, has not been established by the

prosecution. Raju had undoubtedly entered the scene of crime

in the first instance when he had been nabbed by a mob while

he was trying to flee from the place of occurrence; Const.

Ramesh had apprehended him and produced him before

Investigating Officer; Investigating Officer had interrogated

him; Raju as per his revelation had witnessed the incident and

as per his version Ankush had committed the crime and had

fled away; news was flashed in the media that Raju had been

arrested for the murder of Rajeev Gupta; Raju was however

allowed to let go by the Investigating Officer and the

Investigating Officer chose neither to cite him as a witness and

nor as an accomplice; Const.Ramesh who as per the

Investigating Officer had first apprehended Raju and produced

him before Investigating Officer was shying from the specific

queries put to him about the arrest of Raju; so also is the

version of SI Sushil Kumar. It has also been established that

there was a previous enmity between the family of the

complainant and the accused and these grievances had been

brewing since the last more than one month; one day prior to

the incident a police case had been registered at the behest of

the brother of the complainant against the cousin of the

accused.

41. In these circumstances, in our view, benefit of doubt has

accrued in favour of the appellant and it cannot be said with a

complete certainty that the prosecution has been able to prove

that it was the appellant who was the offender; so many queries

having been remained unanswered by the prosecution we deem

it a fit case to reverse the finding of the Trial Judge and

accordingly, a benefit of doubt to the accused of the charge

leveled against him, he is accordingly acquitted. Appeal is

allowed. The appellant is acquitted of the charge framed

against him. His bail bond and surety bond are discharged.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE August 06, 2009 nandan