Anil Kumar Goswami vs State (Nct Of Delhi)
2011 Latest Caselaw 5183 Del

     *      IN THE HIGH COURT OF DELHI AT NEW DELHI

     %                   Date of decision :   October 21, 2011

     +                       Crl.A No.222/1999


            ANIL KUMAR GOSWAMI                ....Appellant.
                     Through: Mr. Shardul Singh, Advocate


                                   versus


            STATE (NCT OF DELHI)               ....Respondents
                     Through: Mr.Pawan Sharma, St.Counsel (Crl.)
                               With Mr.Harsh Prabhakar, Advocate


             CORAM:
             HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
             HON'BLE MR. JUSTICE S.P.GARG

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

         2. To be referred to Reporter or not?

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

     S.P.GARG, J. (Oral)

1. Appellant-Anil Kumar Goswami, along with Yashbir Singh and Dinesh Goswami (since acquitted) was arrested by the police in case FIR No.322/1994 registered at Police Station Bhajanpura and were challaned for the commission of offences punishable u/S 120-B and 302 IPC. The learned Trial Court convicted the appellant for the commission of the offence punishable u/S 302

IPC and acquitted the other co-accused persons namely Yashbir Singh and Dinesh Goswami. The appellant was sentenced to undergo life imprisonment.

2. Present case was registered on the statement of Dr. Dhan Pal Singh (PW-4), father of the deceased-Pawan Kumar on 01.07.1994. In his statement made to the police, Dr.Dhan Pal Singh disclosed that his deceased son (Pawan Kumar) used to assist him in his clinic being run at his house. On 01.07.1994 at about 04:35 p.m. his deceased son Pawan Kumar had taken key of the cycle and had left the house. He thought that his son-Pawan Kumar (deceased) had gone to open the clinic.

3. At about 5.00 p.m. Dr.Dhan Pal Singh (PW-4) heard a noise outside his house that his son (Pawan Kumar) was stabbed with knife at Mandir Wali Gali. On hearing the noise, he reached at the spot and saw one three wheeler scooter bearing No. DL-IR 5943 near house No.B-120. Dead body of his son-Pawan Kumar was found lying in sitting posture on the rear seat of the TSR. Cycle of his son was standing behind the TSR. He immediately rushed on the cycle to Brahmpuri to inform his relatives and brought his father-in-law at the spot. The police also arrived at the spot.

4. Complainant-Dr.Dhan Pal Singh (PW-4) further disclosed to the police that about six months prior to that incident, his neighbour Dinesh Goswami had come at his clinic in afternoon and had threatened that due to action of his son-Pawan Kumar, condition of his niece had deteriorated. Dinesh Goswami asked him to reach at his house to examine the patient. Complainant-Dr.Dhan Pal Singh, however, refused to

accompany him to his house. On that Dinesh Goswami threatened the complainant that if any untoward incident happened with his niece, he would not let his son alive. PW-4 was informed that the niece of Dinesh Goswami had expired and he informed about the threat given by Dinesh Goswami to the Mohalla people. The complainant suspected Dinesh Goswami, Yashbir Goswami, and to appellants for the murder of his son-Pawan Kumar.

5. Prior to that, on receipt of DD No.10/A dated 01.07.1994 recorded at PS Bhajanpura, the police reached at the spot and found TSR bearing No.DL-IR 5943 in which the dead body of the deceased was lying in sitting posture. The SHO summoned the private photographer who had taken the photographs of the scene of occurrence. Crime team also reached at the spot. Complainant-Dr. Dhan Pal Singh (PW-4) also reached at the spot and his above referred statement was recorded. The IO prepared the rukka and got the case registered.

6. At the spot, the IO seized the TSR, (in which the dead body was found), blood sample, earth sample and prepared the necessary seizure memos. He also conducted personal search of the deceased and various personal belongings of the deceased were seized vide seizure memo.

7. Further case of the prosecution is that on 04.07.1994 the appellant surrendered before the court and his one day police remand was taken. During police remand, the appellant was interrogated and his disclosure statement Ex.PW-4/C was recorded. In pursuance of the said disclosure statement, the appellant got recovered one dagger used in the commission of

the offence from the bushes on the Yamuna pushta opposite Gamri. The dagger was blood-stained. The IO prepared its sketch and seizure memo.

8. Further case of the prosecution is that on the same day co-

accused Yashbir Singh and Dinesh Goswami (since acquitted) were also arrested. They were interrogated and their disclosure statements were recorded. During further investigation, the IO got conducted post-mortem of the dead body of the deceased. The exhibits were sent to FSL and subsequently the IO collected the FSL report. Statements of concerned witnesses were recorded at various stages of the investigation. After completion of the investigation, the police filed challan against all the three aforesaid persons in the court.

9. Before the Court of Sessions, in order to prove its case, the prosecution examined 17 witnesses. Statements of all accused persons were recorded under Section 313 Cr.P.C. They denied their involvement in the commission of the offence.

10. On appraisal of the evidence produced on record by the prosecution and after considering the rival contentions of the parties, the learned ASJ convicted the appellant for the commission of the offence under Section 302 IPC and acquitted the other two co-accused Yashbir Singh and Dinesh Goswami. Aggrieved by the said order, the appellant has come up in this appeal.

11. We have heard Mr. Shardul Singh learned counsel appearing for the appellant and Mr. Pawan Sharma standing counsel for the State and have scrutinized the trial court record.

12. Conviction of the appellant has been based upon circumstantial evidence. Admittedly there was no direct evidence produced on record by the prosecution to prove the commission of the offence. PW-2 (Rafiq Ahmed) completely turned hostile in examination-in-chief before the learned trial court and testified that when he was summoned by the police at PS Bhajanpura and was asked to identify the accused in custody whether he was the same person who had stabbed him at about 10:30 p.m. at road No.66 near gas godown along with two others, he could not identify the persons shown to him by the police. He had not said anything in the presence of the police. This witness was got declared hostile and was cross- examined by the learned Additional Public Prosecutor. In the cross-examination the witness denied the contents of the statement Ex.PW-2/A and Ex.PW-2/B to have been made by him to the police. He denied that he has stated to the police that the appellant Anil Kumar, present before the court, was the same person who had stabbed him along with two other persons on 06.06.1994 at 10:30 p.m. Admittedly this witness was not the eye witness to the incident. His testimony was concerned with some other incidence which remained unproved.

13. Prosecution miserably failed to adduce cogent and reliable evidence before the learned trial court to establish circumstance of motive of the appellant to commit heinous offence of murder. It is alleged that about six months prior to the incident Dinesh Goswami (since acquitted) had extended threats to complainant- Dr.Dhan Pal Singh (PW-4) not to let his

son alive when he had allegedly refused to accompany him to examine his niece. It has come on record that at no stage the Complainant (PW-4) lodged any complaint against Dinesh Goswami or any of his family members for the said threat. There is nothing on record to show that after the said incident, any threat was repeated by the appellant or any overt act was done to execute the said threat. On the day of incident, departure of the deceased from the house was not anticipated by the appellant to murder him. There are material inconsistencies in the depositions of PW-4 (Dr.Dhan Pal Singh) and PW-5 (Mithlesh) regarding the date and time when the alleged threat was extended by Dinesh Goswami. In his deposition before the Court, PW-4 (Dr.Dhan Pal Singh) testified that Dinesh Goswami had come at his clinic at about 11:30 a.m. and had requested him to visit his house to examine his niece. When he expressed his inability to visit his house, Dinesh Goswami had extended threat to him. He did not assert presence of his wife at first instance at that time. In her deposition in examination-in-chief, PW-5 (Mithlesh) gave entirely a different version that Dinesh Goswami had come at the clinic at about 3:00 or 3:30 p.m. Learned Additional Public Prosecutor for the State did not bother to get necessary clarification from PW-5 (Mithlesh) which was contrary to the time given by her husband about arrival of Dinesh Goswami in the clinic at about 11:30 a.m.

14. No independent public witness, present at the clinic at the time of alleged threat by Dinesh Goswami, was examined by the prosecution. A different case has been presented to show that

the appellant and his family members were suspecting objectionable relations between the deceased and the niece of the appellant. It is alleged that a greeting card showing love affair between the niece of the appellant and the deceased was found and it was shown to the deceased at the time of commission of the offence and he admitted to have given the same to the niece of the appellant. No such greeting card was seized by the IO during investigation. No evidence has come on record to infer that there were any objectionable relations between the deceased and the niece of the appellant prompting him to take extreme step.

15. Regarding recovery of weapon of offence i.e dagger Ex.P-1 at the instance of the appellant in pursuance of the disclosure statement, again there are serious contradictions and inconsistencies. The prosecution has failed to prove recovery of weapon of offence Ex.P-1 beyond any reasonable doubt at the instance of the appellant. Admittedly, no independent witness was joined by the IO at the time of recording disclosure statement of the appellant or at the time of affecting the recovery of the weapon of offence. No plausible explanation has been offered by the IO for not joining independent public witnesses at both the occasions. Dr.Dhan Pal Singh (PW-4) at the first instance in examination-in-chief testified that the accused persons did not disclose anything in the police station in his presence. Subsequently he changed his version and stated that accused Anil Kumar got recovered a knife from the bushes on the Jamuna pushta. He even did not testify that any

ground was dug by the appellant to take out the dagger Ex.P-1 which he had allegedly concealed therein.

16. Mere recovery of dagger Ex.P-1 cannot be counted as incriminating as this dagger was never shown to the doctor who had conducted post-mortem on the dead body of the deceased to prove that the injuries found on the body of the deceased could be possible with the said weapon got recovered by the appellant. When PW-3 (Dr.Anil Kohli) appeared as a witness before the court, dagger/knife Ex.P-1 was not shown to him at that time also.

17. The case of the prosecution is that at the time of recovery of knife/dagger it was blood stained. This weapon of offence was sent to CFSL and the report of the CFSL Ex.PX was collected by the IO subsequently. On scanning the CFSL report it reveals that no blood was detected on the knife. Hence the prosecution has miserably failed to connect the weapon of offence Ex.P-1 allegedly recovered in this case to have been used in the commission of the offence.

18. No other cogent circumstance was relied upon by the prosecution to secure the conviction of the appellant. Contrary to that, the investigation conducted by the IO shows number of inherent flaws therein creating dent in the prosecution story presented before the court. TSR No. DL-IR 5943 is stated to have been recovered at the spot in which the dead body of the deceased was found on the rear seat. The IO failed to ascertain as to who was the owner of the said TSR and under what circumstances the said TSR happened to be parked at the spot. IO did not examine any witness from the locality as to how and

when the said TSR reached there. The incident had taken place during day time. Number of persons from the locality were present near the spot but none seems to have been examined by the IO to ascertain about the incident.

19. Conduct of the complainant -Dr.Dhan Pal Singh (PW-4) also creates a doubt about the version presented by him to the police. The incident had taken place at a short distance from his residence. In stead of removing the injured/deceased immediately to the hospital from the spot or to inform the police about the incident, the complainant, who is the father of the deceased, opted to go to Brahmpuri to inform his relatives. Record reveals that the deceased was never taken to any hospital and no MLC was got prepared from any doctor. The complainant also failed to disclose the name of the person from whose noise he had come to know that his son was stabbed in Mandir Wali Gali. During investigation, IO also did not ascertain the identity of the said person.

20. IO did not collect any worthwhile evidence against Dinesh Goswami and Yashpal which resulted in their acquittal before the learned trial court.

21. Considering the circumstances referred above, it stands established that there was no cogent, reliable, trustworthy material on record before the learned trial court to base its conviction on circumstance of motive and recovery of weapon of offence which the prosecution has miserably failed to establish beyond reasonable doubt. The learned trial court fell in grave error in basing its conviction under Section 302 IPC. The judgment and order of sentence of the learned trial court

cannot be sustained and is set aside. The appellant is acquitted of all the charges.

(S.P.GARG) JUDGE

(PRADEEP NANDRAJOG) JUDGE October 21, 2011 sa