Ashok Kumar @ Buddha vs State
2010 Latest Caselaw 943 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Decision: 18th February, 2010

+                           CRL.APPEAL NO.73/2010

       ASHOK KUMAR @ BUDDHA           ..... Appellant
               Through: Mr.Sumeet Verma, Advocate

                                   versus

       STATE                                       ..... Respondent
                        Through:   Mr.M.N.Dudeja, Advocate

       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. (Oral)

1. Lest there be any confusion, we may note that the

appellant is named Ashok Kumar. There is another Ashok

Kumar who has appeared as PW-2. Thus, we would be

referring to the appellant not by his name Ashok Kumar but as

accused No.1. We would be referring to the witness Ashok

Kumar as Ashok Kumar PW-2.

2. As per the prosecution, accused No.1 and his

juvenile co-accused Rajan waylaid Gautam near the Eastern

End of Railway Station Badli. The intention was to rob him.

When Gautam resisted, accused No.1 caught him and co-

accused Rajan stabbed Gautam. They removed some money

from Gautam's pocket and fled. Unknown to them, Ashok

Kumar PW-2 had watched the incident.

3. It is the case of the prosecution that Rajan was

apprehended at the instance of Ashok Kumar PW-2 who used

to see Rajan loitering around at the railway station. Ashok

Kumar PW-2 lives in Samaipur Badli itself and either works or

runs a shop in Samaipur Badli.

4. On being arrested, Rajan confessed to the

commission of the crime and informed about the involvement

of accused No.1. He informed the police that he could get

recovered the knife which he had used to inflict injury upon

Gautam. At his instance accused No.1 was apprehended.

Even he confessed to the crime and volunteered to get

recovered the clothes which he was wearing at the time when

the crime was committed. Thereafter, accused No.1 and Rajan

got recovered a knife from the bushes. Accused No.1 got

recovered a pant and a shirt from his jhuggi. Even Rajan got

recovered a pant and a shirt.

5. As per the report of the serologist, human blood of

the same group as that of the deceased was detected on a

pair of pant and shirt. Human blood could be detected on a

shirt but group thereof could not be determined. No blood was

detected on the second pant.

6. There is no evidence as to whether the pant and

shirt on which human blood of group B was detected was got

recovered by accused No.1 or Rajan. Similarly, there is no

evidence as to who got recovered the other shirt on which

human blood was detected. We note that the report of the

serologist is lying in the record of the Trial Court as an

unexhibited document and we further note that while

examining accused No.1 no incriminating evidence pertaining

to blood of the same group as that of the deceased being

detected on the pant and the shirt got recovered by him has

been put. Thus, said part of the recovery and its incriminating

worth have been rendered of zero value.

7. It is apparent that the case of the prosecution has

hinged upon the ocular evidence of Ashok Kumar PW-2, the

sole eye witness cited to prove the case.

8. Having perused the testimony of Ashok Kumar PW-

2, during cross-examination it has been brought out that Ashok

Kumar PW-2 was a witness of the prosecution in another case

registered at the same police station involving a stabbing

incident pertaining to his brother-in-law Dhaniya in which

offence accused No.1 was the accused.

9. It is thus apparent that Ashok Kumar PW-2 could

possibly have a false motive to implicate accused No.1 on

account of the previous enmity. Thus, it became imperative

for the learned Trial Judge to take note of said fact and the see

whether Ashok Kumar PW-2 has been corroborated or

alternatively after scrutinizing (with microscopic care) the

credibility of Ashok Kumar PW-2, could it be said that his

credibility is of the sterling highest value.

10. We note that the learned Trial Judge has just not

bothered to appreciate the testimony of Ashok Kumar PW-2 in

the context of said backdrop.

11. In the decisions reported as AIR 2001 SC 2328

Takhaji Hiraji Vs. Thakore Kubersing Chamansingh & Ors., AIR

2003 SC 2268 State of Punjab Vs. Harbans Singh & Anr. and

AIR 2005 SC 2110 Hemraj Vs. State of Haryana, the Supreme

Court highlighted the importance of seeking corroboration to

the testimony of an interested witness as also to the

importance of putting under microscopic scrutiny of an

interested eye witness. The decisions also highlight the fact

that if the prosecution has cited interested witnesses and

there is evidence of presence of independent witnesses; non-

examination of independent witnesses would be treated as

fatal to the case of the prosecution.

12. As per Ashok Kumar PW-2, he had gone to the

railway station to receive his brother-in-law who was supposed

to come from Firozepur. He claims that after the train left and

since his brother-in-law did not come, as he started walking

back to the shop he saw accused No.1 and another boy

quarreling with a boy. They were demanding money. The

victim was a person working in a shoe factory. He knew him,

but did not recollect his name. He saw accused No.1 catching

hold of the victim and his companion stabbing the victim on

the chest. The victim fell down. Both accused took out money

from the victim. He informed the railway station to further

inform the police on the telephone.

13. On being cross-examined Ashok Kumar PW-2 could

give no proof of his brother-in-law having booked a train ticket

to travel from Firozepur to Badli Railway Station in Delhi. That

may be ignored, but what is relevant is that he admitted that

the train left the station at 1:00 PM. He stated that the

occurrence took place at about 1:30 or 2:00 PM.

14. What was Ashok Kumar PW-2 doing at the railway

platform till 1:30 or 2:00 PM when the train in which his

brother-in-law had to come had arrived at 1:00 PM and left

soon thereafter. His brother-in-law admittedly did not come in

the train. The natural course of events would be that Ashok

Kumar PW-2 would have walked home or to his shop. We note

that in his examination-in-chief he has said that since his

relative did not turn up he started coming back to the shop.

15. It would be relevant to note that information was

received at the PCR about the stabbing incident at 2:10 PM as

is to be noted in the first DD entry recorded at the police

station being Ex.PW-10/A.

16. Learned counsel for the State points out that the

Assistant Railway Master Badli Railway Station Sh.C.Narayan

PW-6 has stated that some people including Ashok Kumar PW-

2 came to him and informed him of the incident and he in turn

rang up the police. Thus, learned counsel urges that the

presence of Ashok Kumar PW-2 at the railway station is

corroborated by the testimony of C.Narayan PW-6.

17. Now, Ashok Kumar PW-2 resides at Samaipur Badli.

It is an urbanized village in the Union Territory of Delhi and the

possibility of Ashok Kumar hearing about some stabbing

incident at the railway station cannot be ruled out. The

probability of his going to the railway station after hearing said

incident cannot be ruled out.

18. But, what is at the heart of the matter and is most

essential to be noted is that the train in question had arrived

at the railway station at around 1:00 PM and left soon

thereafter. The stabbing has taken place at the eastern end of

the platform. The probable time of the stabbing is around 1:30

- 1:45 PM. Even ignoring said probable time, it has come on

record that Ashok Kumar PW-2 reported at the office of the

Station Master at around 2:10 PM. It is an unnatural event that

Ashok Kumar PW-2 hung around at the railway station for over

1 hour after the train in which his brother-in-law had to arrive

had left the station.

19. It is also relevant to note that as per Ashok Kumar

PW-2 the train was to arrive at the station at 11:00 AM. He

was waiting at the railway station since 11:00 AM till 1:00 PM

as the train got late. A person who has been waiting at the

railway station for 2 hours would be expected to depart

immediately after the purpose of the visit to the station is over

or is frustrated.

20. It is also important to note that as per Ashok Kumar

he was returning to the shop. Whether the shop was his or he

was working in the shop is irrelevant. 26.6.2003 the day of the

incident, being a working day, it was all the more reason for

Ashok Kumar to leave the railway station with utmost dispatch.

21. Through the testimony of Sh.C.Narayan PW-6 the

Assistant Railway Master it has come on record that other

persons were also there. We see no reason why the

investigating officer has not examined said independent

witnesses.

22. Needless to state that as held in the decision

reported as 2009 (13) SCALE 114 Rupchand Chindu Kathewar

Vs. State of Maharashtra in the case of a single witness the

evidence must be qualitatively unimpeachable.

23. Looked at from any angle, the appellant would

certainly be entitled to a benefit of doubt as we do not find the

testimony of Ashok Kumar PW-2 inspiring confidence.

24. The appeal is allowed.

25. The impugned judgment and order dated 25.7.2009

convicting the appellant for the offence of murder and robbery

is set aside.

26. The appellant is acquitted of all the charges framed

against him.

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

sent to the Superintendent Central Jail Tihar for necessary

action and with a direction that if not required to be kept in

custody in any other case, the appellant should be set free.

28. We must express our gratitude to Sh.Sumeet Verma

learned counsel for the appellant and Sh.M.N.Dudeja learned

counsel for the State. But for their active co-operation and

assistance the instant appeal which was listed for the first time

before Court and was admitted on 29.1.2010, has been

disposed of on the 20th day of its being listed for admission.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 18, 2010 mm