Pintoo vs State
2010 Latest Caselaw 208 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : 15th January, 2010

+                        CRL. A. No. 444/2006

        PINTOO                                ..... Appellant
                           Through: Mr.Sumeet Verma, Advocate

                      versus

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

         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 Reporter or not?                       Yes
     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Majid's (PW-1) statement Ex.PW-1/A on basis whereof the

FIR in question was registered was recorded by SI S.N.Rajora

PW-16 at around 11.00 A.M. on 28.10.2001. It was dispatched

at around the same time and the FIR in-question was

thereafter registered at the police station.

2. As per the prosecution, the crime i.e. the murder of

deceased Rakesh @ Mota was committed at around 11.30-

12.00 in the intervening night of 27th and 28th October, 2001.

3. It is apparent that there is considerable delay in the

registration of the FIR. We note that the learned trial Judge

has discussed the same in para 10 of the impugned decision,

wherein it has been recorded as under:-

"10. Although, there is some delay in lodging the report, this fact single handedly does not go to demolish the prosecution case root and branch. There must be some evidence to show that due to the above said delay the prosecution had occasion to involve the accused falsely in this case. In absence of this evidence the value of prosecution does not enervate. However, the eye witnesses have well explained that the action of the accused had thrown a scare in their mind and, therefore, they waited till the morning, informed the brothers of the deceased and thereafter the brother of the deceased lodged the report."

4. Before noting the relevant relatable evidence on the

issue as to who had committed the crime, we note that the

learned trial Judge, in para 1 of the impugned decision, has

commenced his journey as under:-

"1. The facts of the prosecution case are these. Deceased Rakesh @ Mota, accused Pintoo, PWs Majid, Dalip, Mantoo Sada and others used to reside in Ghazipur Khatta near road No.24, Delhi within the bounds of P.S.

Kalyan Puri. All of them are junk-dealers. On 28.10.2001, during the evening time at about 7.30 p.m. there was a wrestling competition between PW Dalip and accused. Dalip defeated Pintoo. Due to defeat, accused Pintoo got annoyed. He shouted who was saying that he was defeated and made a scurrilous attack on all of them. In the meantime, deceased Rakesh @ Mota intervened and asked Pintoo not to abuse. He also gave him 2/3 slaps. After sometime both the accused and the deceased buried the hatched and became friends."

5. A perusal of the impugned judgment reveals that the

appellant has been convicted by the learned trial Judge who

has believed the testimony of Majid PW-1, who claimed to be

an eye-witness.

6. With reference to para 1 and para 10 of the impugned

decision, contents whereof have been noted by us

hereinabove, it is apparent that the learned trial Judge has

referred to an incident which took place at around 7.30 P.M.

i.e. the evening of 27.10.2001. It may be recorded that the

date 28.10.2001 noted in para 1 of the impugned decision is a

typographic error as the date actually is 27.10.2001. As per

the learned trial Judge, at 7.30 P.M. there was a wrestling

competition between Dalip and the accused in which the

accused was defeated and he got annoyed. He shouted on

being defeated and made a scurrilous attack. Rakesh @ Mota

intervened and ask the accused not to abuse. 2-3 slaps were

also given but the dispute was buried.

7. As per the learned trial Judge, to seek revenges of his

humiliation in the evening, it appears that the appellant killed

Rakesh @ Mota.

8. With reference to the delay of PW-1 getting recorded his

statement as also the belated information given to the police

as recorded in para 10 of the impugned decision, the learned

trial judge has held that the eye witness have well explained

that the action of the accused had thrown a scare in their mind

and therefore they waited till the morning.

9. Wherefrom has the learned trial Judge referred to

plurality of eye witnesses? We are left bewildered, for the

reason we find that only Majid PW-1 has claimed to be an eye

witness.

10. Let us now note the testimony of Majid PW-1.

11. He deposed in court on 10.02.2003. He stated that about

a year back, we was going to Murga market to take food at

around 7.30 P.M. The accused and 2-3 other persons were

sitting at the road side and the accused invited somebody for

wrestling. A boy replied that since the accused was drunk

therefore the wrestling would take place next morning. But,

another boy Dalip asked accused to wrestle with him. The first

wrestling round took place and was declared a draw. In the

second round Dilip defeated the accused who did not accept

defeat and abused. The deceased who was present asked the

accused not to abuse and the deceased gave 2-3 slap blows to

the accused. The accused apologized. The deceased

threatened the accused that he will kill the accused but the

matter was compromised. He i.e. Majid proceeded to take his

meals and returned at about 9.00-9.30 P.M. and went to sleep.

The deceased used to sleep with him. At around 11.30-12.00

in the night he heard noise of 'DHUM DHUM'. He saw the

accused abusing the deceased and striking blows with a scale.

He chased the accused who ran away from the spot. He came

back with fear and raised hue and cry. He woke up persons in

the neighbourhood but on being scared nobody came near the

dead body and he went away. He returned in the morning and

saw the dead body. The brother of the deceased came in the

morning and the matter was reported to the police and that his

statement Ex.PW-1/A was recorded by the police. He deposed

that the weight Ex.P-1 was used by the accused to assault the

deceased.

12. We have read and re-read the examination-in-chief of

Majid PW-1 and wonder as to wherefrom has the learned trial

Judge recorded in para 1 of the impugned decision that the

accused made a scurrilous attack on all of them.

13. Nothing of this kind happened. On the contrary, since

the appellant had abused the persons who were saying that he

had been defeat by Dalip, Rakesh @ Mota had slapped the

accused and not vice versa.

14. We have highlighted the said fact for the reason it shows

traces of a pre-determined view taken by the Judge to

appreciate the evidence with a taint and that the learned trial

Judge has gone to the extent of incorrectly narrating the facts

as deposed to by the witnesses of the prosecution. This is not

expected at a criminal trial, more so where the accused is

charged of a serious offence which may even entail the

punishment of death.

15. Be that as it may, it is apparent that the only issue which

needs to be considered by us is whether Majid PW-1 was an

eye witness to the incident as claimed by him.

16. Before we answer the question, we need to note certain

parts of the answers given by Majid PW-1 on being cross-

examined.

17. In the cross-examination he admitted that the room

(referred to as Khatta) in which the crime took place was

occupied by 10-12 persons and that he and the deceased were

sleeping on the same bed and that when blood oozed out from

the body of the deceased, his clothes got stained by blood but

the police did not take possession of the said clothes.

18. As noted above, in his examination-in-chief he stated

that he chased the accused when the accused was running

away from the spot. He reiterated the said fact when he was

cross-examined. On being further examined as to who were

the persons sleeping in the room i.e. Khatta, he disclosed that

Munna, Shakeel, Zakir and Soni besides he and the deceased

were sleeping in the room.

19. Learned trial Judge, in para 10 of the impugned decision

has held that the delay in reporting the crime to the police and

the delay in Majid getting recorded his statement before the

police stand well explained inasmuch as the eye witness has

clearly stated that the accused had thrown the scare in his

mind and therefore he waited till the morning.

20. We wonder at the finding returned. It runs in the teeth in

the testimony of PW-1 Majid. Majid has clearly stated that he

chased the accused who ran away from the spot. It is no

doubt that in the very next sentence he says that he came

back with fear and raised hue and cry.

21. The fact that he chased the accused shows that Majid

was not scared. The fact that there were as many as 4 other

persons in the room rules out the scope of any fear in the mind

of Majid.

22. Where does this lead us to? Obviously, to a serious

doubt about the presence of Majid as he claims and Majid

being the eye witness.

23. Conduct of persons who claims to be the eye witnesses

has always weighed with courts while appreciating the

question: Whether at all they were eye witnesses or not.

24. Majid's admission that in the same room Munna, Shakeel,

Zakir and Soni were sleeping, casts a serious doubt that the

appellant committed the crime and managed to run away and

that 5 persons can be scared that they waited till dawn to

report the matter to the police.

25. We may note that Majid has admitted in his cross-

examination that the police barrier was at a mere distance of

500 metres from the room (Khatta) in which the crime was

committed.

26. We hold that the finding returned by the learned trial

Judge para 10 that Majid's presence at the spot could not be

doubted merely on the fact that the incident was reported to

the police after nearly 8 hours is explainable since Majid has

explained by claiming to have got scared, is completely

falsified when we read the testimony of Majid.

27. We reiterate that the claim of Majid who claims to have

chased the accused, shows that far from being scared, Majid

took up courage to apprehend the assailant. This is

unbelievable vis-à-vis his conduct of not reporting the matter

to the police which was available at a mere distance of 500

metres. It has to be highlighted that Munna, Shakeel, Zahir,

and Soni were also sleeping in the same room.

28. The possibility of Majid falsely naming the appellant as

the accused with reference to the incident which took place in

the evening cannot be ruled out.

29. The quality of evidence lead by the prosecution and the

testimony of Majid has failed to reach the standard of proof

required at a criminal trial. We have a serious doubt in our

mind whether at all Majid has deposed truthfully. We are

constrained to give the benefit of doubt to the appellant whose

false implication is within the realm of possibility.

30. The appeal is allowed. The judgment and order dated

26.05.2003 convicting the appellant for the offence of murder

of Rakesh @ Mota is set-aside. The appellant is acquitted of

the charge framed against him.

31. We note that the appellant is in Jail. The appellant shall

be set free forthwith if not required in custody in any other

case.

32. A copy of this order be sent to the Superintendent,

Central Jail Tihar for compliance.

PRADEEP NANDRAJOG, J

SURESH KAIT, J JANUARY 15, 2010 'nks'