Sanjay vs State
2010 Latest Caselaw 1048 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on : 22nd February, 2010
                        Judgment Delivered on : 23rd February, 2010

+                            CRL.APPEAL NO.41/2010

       SANJAY                                      ..... Appellant
                        Through:   Mr.D.S.Sandhu, Advocate and
                                   Mr.R.S.Mandal, Advocate.

                                   versus

       STATE                                       ..... Respondent
                        Through:   Ms.Richa Kapoor, A.P.P.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     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

PRADEEP NANDRAJOG, J.

1. The appeal was admitted on 14.1.2010 and learned

counsel for the parties had stated that every attempt would be

made to argue the appeal on 22.2.2010. The appeal was

argued on 22.2.2010 and it was recorded in the order that

decision would be pronounced on 23.2.2010.

2. The appeal was fast-tracked for hearing since

learned counsel stated that the fate of the appeal would be

decided with reference to the testimony of PW-2 Smt.Anita.

3. Three persons, Sanjay (appellant), Sunil and

Pramod Kumar were sent for trial. Against Sunil and Pramod

Kumar the charge was that knowing that a desi katta was used

by appellant Sanjay to commit the murder of Ashok they had

helped him in disposing of the same. The charge against the

appellant Sanjay was of having murdered Ashok Kumar with

the desi katta and then concealing the same.

4. The desi katta which was got recovered pursuant to

the disclosure statement of Pramod could not be linked as the

weapon of offence as the ballistic expert found no connection

between a bullet which was recovered from the body of the

deceased and the weapon so recovered and hence Pramod

and Sunil were acquitted.

5. Two pieces of incriminating evidence have been

used against the appellant. The first is the eye-witness

account of Anita PW-2 and the second is of the fact that a

chappal was recovered from near the place of the crime and

its counterpart was got recovered by the appellant after he

was arrested and his disclosure statement was recorded. The

two chappals have been opined by an expert to be the

counterpart of each other and further the soil samples lifted

from the chappals were having same physical characteristics.

6. With reference to the two chappals Ex.4 and Ex.6,

we note that the second exhibit is the foot got recovered by

the appellant and the witness associated with the recovery is

Mohiuddin PW-5 who as per the admission of the investigating

officer Satyavrat Yadav PW-29, then working as the SHO of the

concerned police station, was a witness to the investigation

conducted by him in 2 to 4 cases of murder. It is apparent

that Mohiuddin is a stock witness of the prosecution and hence

we hold that it would be unsafe to use as incriminating

evidence any recovery at the instance of the appellant in

which Mohiuddin has been associated as a witness.

7. Thus, we proceed to consider the testimony of Anita

PW-2.

8. But before that, we may note that the PCR form

Ex.PW-25/A proved by ASI R.S.Bhardwaj PW-25 shows that at

10:30 PM one Shri Srikant Tiwari rang up the police control

room from telephone No.7411655 and informed that a person

had been shot behind Mother Diary, Mangal Bazar Road,

Jahangirpuri, Delhi. Inspector Satyavrat PW-29 proceeded to

the spot and as deposed to by him, by the time he reached the

spot, the injured had already been removed to BJRM Hospital,

he found no eye-witness and saw blood on the ground. He

went to the hospital where he found that the injured had been

declared brought dead by the doctor in the casualty. He

returned to the spot and at that point of time he met Anita

whose statement Ex.PW-2/A was recorded by him and after

making an endorsement beneath the same he got the FIR

registered for the offence of murder. He lifted control earth

and blood control earth from the spot as also a slipper at some

distance which was told to him by Anita as having come out of

the foot of Sanjay. He drew up the seizure memos and

prepared the rough site plan indicating the spot where the

deceased i.e. Ashok was shot and the place wherefrom he

picked up one chappal. He summoned a photographer who

took 16 photographs of the place of the crime including the

chapppal which was lifted from the spot. Thereafter, he seized

the dead body and sent it to the mortuary where Dr.K.Goel

PW-21 conducted the post-mortem on 22.7.2000 and prepared

the post-mortem report Ex.PW-21/A as per which the deceased

had been shot from a close range in the forehead. Death was

due to damage to the brain matter. A bullet was recovered

which was handed over along with the clothes and the blood

sample of the deceased to the investigating officer.

9. Srikant Tiwari has appeared as PW-11. He has

deposed that he is the husband of Anita and that when he

returned to his jhuggi at 10:15 PM on 19.7.2000 he saw Ashok

Kumar lying on the floor. His wife Anita was present and told

him that the appellant had fired on the person of Ashok Kumar

Giri and had run away and that he i.e. Srikant Tiwari informed

the police.

10. Srikant Tiwari's presence soon after the crime has

stood corroborated by contemporaneous record i.e. Ex.PW-

25/A and the testimony of ASI R.S.Bhardwaj PW-25. We note

that the testimony of Srikant Tiwari PW-11 that when he

reached his jhuggi at 10:15 PM on 19.7.2000 his wife met him

and told him as afore-noted, has not been challenged during

cross-examination. We note that Srikant Tiwari admitted that

he was not on speaking terms with Sanjay.

11. Smt.Anita W/o Srikant Tiwari appeared as PW-2 in

support of the case of the prosecution on 11.2.2003 i.e. after

about 2½ years of the incident. During her examination-in-

chief she deposed that about 2½ years ago at the time of

Saawan season, the exact date, month and year which she did

not recollect, she was residing at Jhuggi No.80, A-1 Market,

Behind Mother Diary, Mangal Bazar Road, Jahangirpuri, Delhi.

She stated that her jhuggi was adjacent to the jhuggi of one

person named Surinder who resided there with three-four

more young persons of Bihar. In that jhuggi the accused

Sanjay used to come with the deceased-Ashok. That when she

was cooking meals she heard sounds of a quarrel and accused

Sanjay had come to the jhuggi of Surinder. She heard a loud

noise and immediately came running out of the house and saw

the accused Sanjay running away and that she had nothing

more to tell. At that stage the learned APP cross-examined her,

obviously for the reason she had not stated many facts which

were recorded in her statement Ex.PW-2/A on basis whereof

the FIR has been registered, upon which she deposed that

Sanjay was working along with the deceased as a helper. She

affirmed that a quarrel had erupted between the accused

Sanjay and the deceased in connection with the money

transaction. She said that she came to know about the fact of

this quarrel from Surinder. She denied the suggestion given

by the learned APP that 2/3 days prior to the date of the

incident accused Sanjay had visited her jhuggi with a view to

enquire about the deceased as he wanted to take money from

him. She was confronted with portion 'A' to 'A' of her

statement Ex.PW-2/A where it is so recorded. She stated that

she heard noise between Sanjay and Ashok outside the jhuggi

and in that quarrel accused Sanjay was asking the deceased to

return his money and abusing him. She stated that she heard

a sound of a fire outside the jhuggi and as soon as she came

out of the jhuggi she saw accused Sanjay running towards

Mangal Bazar with a revolver type of weapon in his right hand.

She deposed that while the accused was running away from

the spot one of his chappal was left at the spot and he ran

away wearing one chappal only. She stated that the deceased

Ashok was lying in front of her jhuggi with blood oozing out

from his head and that when her husband Srikant came to the

jhuggi he informed the police on the number 100. She

explained her inability to narrate such detailed facts at the

stage of examination-in-chief owing to lapse of time. She

deposed and affirmed the recoveries effected at the spot on

the day of the crime as per the various memos prepared by

the police.

12. Anita was subjected to an extensive cross-

examination by learned counsel for the accused. During cross-

examination she stated that she knew accused Sanjay prior to

the incident and they were on visiting terms. She stated to

have recognized the accused through his voice as she had

heard the voice of the accused while he was talking to others.

She affirmed that it was Surinder who had told her that the

accused Sanjay was talking to Ashok outside the jhuggi. She

affirmed that public persons used to tell that the accused

Sanjay had to take some money from Ashok and thus she

came to know about the aforesaid fact. She admitted that she

is unable to recollect the exact date, month and year of the

incident since sufficient period of time had elapsed but stated

that the time was 10:00 PM. She stated that as soon as she

came out from her jhuggi she saw the accused Sanjay running

at the distance of 10 steps and further that she had seen him

face to face. She denied the suggestion of having any enmity

with the accused Sanjay. She stated that the accused had

shot the deceased in presence of Surinder and upon hearing

the fire shot she had come out from the jhuggi alone. She

stated that her husband came at about 10:30 PM whereupon

he had made call to the police at phone number 100. The

police came at the spot after 10 minutes from the said call.

The police made enquiry from her but did not make any

enquiry from her husband in her presence. She stated that her

statement was recorded by the police at her jhuggi and not at

the police station. She stated that the police may have read

over the statement to her but she does not remember.

13. Learned counsel for the appellant urged three

submissions. Firstly, that as admitted by Inspector Satyavrat

Yadav PW-29, Anita was nowhere to be found when PW-29 first

came to the spot where the crime was committed and that, as

per learned counsel, this shows that Anita was a planted

witness. Secondly, the factum of relations between Anita and

her husband being inimical with the accused, a fact admitted

by Anita's husband and lastly the fact that Anita was a hostile

witness and thus was wholly untrustworthy.

14. The first plea has to be rejected for the reason

Srikant has deposed that when he returned to his jhuggi he

saw Ashok lying on the ground and Anita told him that Sanjay

had shot Ashok and fled. Srikant has not been even subjected

to a cross-examination on this testimony of his. Thus, Anita's

presence at the spot stands proved by independent evidence.

Further, Anita's testimony that the crime took place outside

her jhuggi has not been challenged when she was cross-

examined. The time of the crime is around 10:30 PM. It is a

time when a housewife would be expected to be in her house.

In the instant case, her jhuggi. Being a poor woman from a

humble background, it is within the realm of possibility that

Anita held herself back when Inspector Satyavrat came to the

spot. Finding nobody present and that the injured had been

removed to the hospital, Inspector Satyavrat immediately left

for the hospital and returned soon after finding the injured

dead and no eye-witness at the hospital. Satyavrat has not

been cross-examined to elicit a response as to whether he

searched for an eye-witness when he first reached the spot.

15. On the issue of enmity, we note that the only thing

said by Srikant is that he was not on speaking terms with the

father of the accused. There may be many reasons for a

person not to be on speaking terms with somebody. Well, A

may feel that B is a person of ill repute and hence is not

worthy of being spoken to. A may feel that B is a quarrelsome

person and hence should be avoided. These would not be

reasons to attribute any motive. The defence has not brought

out the reason why Srikant was not on speaking terms with the

father of Sanjay.

16. Thus, the so-called motive of Anita being an

interested witness is virtually non-existent or is very weak to

justify an inference that Anita would let go the real assailant

and falsely implicate Sanjay.

17. We have extracted herein above the testimony of

Anita and her cross-examination. The slight variations and

embellishments have been explained by her as a loss of

memory; the incident being 2½ years prior to when she

deposed. That she forgot important facets which she had seen

and had told Inspector Satyavrat, but admitted having seen

them and narrated about them when her memory was

refreshed in the form of suggestions does not mean that she is

not a truthful witness. To any reader of her testimony, it is

apparent that she has successfully withstood the test of cross-

examination.

18. The law is clear, where a sole eye-witness stands

the scrutiny of credibility, ignoring improvements and

blemishes which are the natural attributes of every human

being, conviction can be sustained without seeking any further

corroboration.

19. Finding Anita to be a truthful witness and without

any motive to falsely implicate Sanjay and noting that the

deceased was shot in the forehead leaving no scope for

argument that the act did not attract Section 300 IPC, we

dismiss the appeal.

20. Since the appellant is in jail, a copy of this order be

sent to the Superintendent, Central Jail, Tihar to be made

available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 23, 2010 dkb