Surjit Kumar @ Shakir Ali @ Ganja vs State (Govt. Of Nct Of Delhi)
2012 Latest Caselaw 341 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                DECIDED ON: 18.01.2012

+                         CRL.A. No. 67 /2012

      SURJIT KUMAR @ SHAKIR ALI @ GANJA                       ..... Appellant

                    Through : Ms. Anu Narula, Advocate

                                Versus

      STATE (GOVT. OF NCT OF DELHI)                         ..... Respondent

Through : Mr. Sanjay Lao, APP

CORAM:

MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S. P. GARG

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) %

1. Appeal admitted; the learned APP accepts notice. It was submitted at the outset that the co-accused, Balmukund and Pradeep @Allahabadi, had appealed to this court, and that this Court, by judgment and order dated 15th November, 2011 in Crl. Appeal Nos. 704-705/2011, set aside their conviction and sentence. This fact was not disputed by counsel for the State. Learned Counsel for the Appellant in this case also submitted that the role attributed to him is no worse than that attributed to Balmukund and Pradeep. With consent of counsel for the parties, the Court heard the Appeal finally. The court also had the benefit of the Trial Court records, and the previous judgment of this court, in Crl. A. Nos. 704-705/2011, as well as the records of the other appeal, which were called for today.

Crl.A. No.67/2012 Page 1

2. The appellant impugns a judgment and order dated 31.07.2010 and 09.08.2010 respectively whereby he was convicted for the offence punishable under Section 302 read with Sections 201 and 120B IPC. He was sentenced to undergo life imprisonment and also fined for various amounts, in default of payment of which he was directed to undergo simple imprisonment for further term.

3. The prosecution alleged that on 25.09.2005, the Station Master of New Delhi Railway Station was informed by the guard of the Frontier Mail that a bag lay in Coach No.5 of the train, which was inspected by the security service of the railway station, who discovered that it contained the dead body of a teenaged male. The concerned Police Station was informed and SI Avinash Yadav, PW-16 was assigned the matter. He also became the I.O. PW-16 went to the scene of occurrence and collected the physical evidence such as blood stained clothes, blood samples as well as the body - which was sent for post mortem. A case was registered under Sections 302, 201/ 120B IPC. It was alleged that in the course of investigation, on the same day, PW-16 met with Mohd. Najim; he furnished information about the offenders. It was further alleged that at his instance two individuals i.e. Chandan @ Chikna and Surjit @ Shagir @ Ganja (the present Appellant) nabbed by the police; taken into custody and arrested on 30-09-2005. It was further alleged that Mohd Najim also informed that Raj Kumar, Rajesh Bihari and Bal Mukund were involved in the murder. The police stated that the accused Rajesh and Balmukund were arrested later. It was alleged that on 23.11.2005 the Police received secret information about involvement of another person i.e. Rajesh Allahabadi @ Pradeep (one of the appellants) who was also arrested upon his being identified by the said Mohd. Nazim. On the basis of information and materials collected, a charge sheet was filed. The Trial Court was of the opinion that a prima facie case was made out and charged the accused for Crl.A. No.67/2012 Page 2 committing crime. They claimed to be not guilty and sought trial. The Trial Court examined 26 witnesses and also considered the materials and exhibits produced before it. On the basis of these it concluded that the present appellants were guilty as charged. They were accordingly convicted and sentenced in the manner described above.

4. It was argued that the Appellant Surjit too, was sought to be implicated on the testimony of Najim, who was not joined in the investigation or produced as a witness in Court. Surjit's arrest, and the alleged recovery of an ustra, on 30-09- 2005, in the circumstances, could not have been the basis of his conviction.

5. Learned counsel for the appellant argued that the entire prosecution was based on circumstantial evidence. Counsel urged that in such cases the prosecution's duty is to prove each circumstance and also prove that each link which bound all the circumstances formed a chain so complete as to eliminate the possibility of anyone, other than the accused being the author of the crime. It was urged that the prosecution's entire story relied on the information provided by Mohd. Najim; it was also their case that the appellants were arrested at his instance. Counsel emphasized that the most important element in the entire prosecution was the story or version of Mohd. Najim. However, he was not examined during trial. In these circumstances, the case could not be said to have been proved at all.

6. The appellant's counsel urged that his arrest was not proved objectively since no public witness was joined in the proceedings at that time. It is urged that the Trial Court has in this case relied upon the recoveries allegedly made by the Police at the instance of the present appellant. An ustra was allegedly recovered from a public place i.e. Railway Platform and that much after the incident. Having regard to the entirety of the circumstances i.e., that the appellant was arrested on 30-09-2005 for an incident which occurred on 25.09.2005, and the prosecution's Crl.A. No.67/2012 Page 3 inability to produce the key witness and inability to even explain or link the recoveries with the appellant; the entire story is a falsified one. It was alleged that an ustra is a fairly common object and in the absence of special mark, or even a finger print analysis on the article, the Trial Court could not have concluded that such recoveries were incriminating circumstances. Counsel also urged that two other ustras were allegedly recovered about a month later, after the arrest of other accused. No attempt was made to show how these fairly commonplace articles were used by three individuals, upon the deceased.

7. The learned APP argued that though Mohd. Najim was cited as a witness, he could not be produced during trial because despite all efforts it was not possible to trace his whereabouts. The counsel urged, however, that the deposition of PW-16 who recorded Mohd. Najim's statement could be relied upon as it was not shown to be motivated. It was urged that PW-16 in his deposition narrated the entire sequence about having received information on 25.09.2005 at around 7.45 PM and seeing the blood seeping from Coach S-5 of the Frontier Mail Train and discovering that the source of this blood was a gunny bag. Later, Inspector Ishwar Singh went to the spot, he deposed that since the wires above the train were electrified, it was disconnected by one Jagdish Shah. Upon opening the gunny bag they discovered a body of a young boy aged 13-14; this was wrapped in a blanket. The body was gagged with a cloth, neck was slit and there were injuries on the face and head. The body was identified on 27.07.2005 by one Jamila Khatoon and her son Mohd. Irfan. It is stated that on the same day, he went to RML Hospital to enquire about Raj Kumar @ Chandal (another assailant) who had been admitted for treatment of electric burn injuries. His blood samples were taken.

8. On 30.09.2005 at about 12.30 PM he and three other police-men went to Platform No.1 of the station where he met Mohd. Najim; the latter pointed to Chandan @ Chikna and the Appellant and said that they and the other co-accused Crl.A. No.67/2012 Page 4 had committed the murder. Chandan and Surjit (the present appellant) were arrested. Pursuant to their disclosure statements, blood samples from earth control room were recovered. At the instance of Surjit one ustra which was blood stained was recovered from the Central bridge, Tin shed pillar, Platform No. 8 of the railway station. All these were seized. On 05.10.2005 the witness, PW-16 was entrusted with proceedings under Section 174 in respect of Raj Kumar who had been injured and was admitted to RML hospital on 25.09.2005. Raj Kumar passed away on 30.09.2005.

9. Learned APP contends that on 03-10-2005, Bal Mukund was arrested at the instance of Mohd. Najim. He submitted that on 23.11.2005, Mohd. Najim met the police party at Platform No.1, they further went to Platform No.2 where he identified the accused Pradeep @ Allahabadi, who was arrested; who lead them to Platform No.2 from where they recovered a blood stained ustra at his instance. The learned APP argued that testimonies of PW-16 and PW-22 were corroborated by those of PW-4 and PW-26. Reliance was also placed upon the deposition of some witnesses such as Shagir who testified that Mohd. Najim was his son and that he had left his residence four years ago and had not been heard of since then. Similarly, the post mortem report Ex. PW-13/A, and the deposition of Dr. Kulbhushan Goyal was relied upon. It was urged that having regard to this, it was clear that the deceased Sonu had a 13 cm long cut injury and another throat injury of 9.5 cm, over his occipital region both of which were sufficiently serious to have caused death. The learned APP urged that disclosure statements made in this case were corroborated by the injuries received by the deceased Raj Kumar, who got electrocuted and died subsequently on 30.09.2005. Having regard to all these facts, it was urged that the role played by the accused appellant in killing Sonu on top of the train had been established. The accused- including the Appellant, were also responsible for stuffing his body along with other co-accused in the gunny bag Crl.A. No.67/2012 Page 5 and subsequently hiding the weapons of offence i.e., ustras. Though these articles were kept in public places, yet it were hidden and could not be discovered by normally searching the place. The knowledge of these articles also incriminated the appellant.

10. In the previous judgment of the Court, in the case of the co-accused Pradeep @ Allahabadi & Balmukund v State (Crl. Appeal No. 704 & 705/2011, decided on 15th November, 2011), it was held that:

9. In this case, the prosecution version was that the crime was witnessed by Mohd. Najim. However, he was not produced to testify in court, in support of its case. The State contends nevertheless, that his statement was recorded by PW-16, who deposed to having done so, and that he had implicated the Appellant and the co-accused for the crime. We are afraid that such reasoning is unfeasible. PW-16 can testify to what he saw and observed; his deposition regarding what someone else - who did not later depose in court- said, is clearly inadmissible, under the hearsay rule. At best, what was stated by Najim could be useful to help in the investigation. What however, is admissible in court, and permissible for the court to look into, is whether the witness who deposes about a fact seen or experienced by him, can be relied on. Therefore, this court is of opinion that PW-16's testimony about what was recorded by him, on the basis of Najim's statement, is inadmissible in law.

9. The next question is whether the prosecution was able to prove the arrest, and involvement of the present Appellants in respect of the crime.

The testimonies of various prosecution witnesses is that the accused - except the present Appellants were arrested on 30th September, 2005; one of the attackers died and his inquest and post-mortem examination was done in the first week of October, that year. However, the Appellants were arrested on 3rd October 2005, and 23rd November, 2005. The witness to this arrest is alleged to have been the same Najim. PW-22 and PW-26 deposed in this regard. PW-22 mentioned how the Appellant Pradeep was pointed out, and nabbed. He further stated that upon questioning, the accused made disclosure statements which led to the recovery of articles, such as the ustra, blood stained clothes, etc from some places in the Railway station. Though recoveries cannot by themselves constitute strong incriminating circumstances, what is recovered, pursuant to disclosure statements, and where they are recovered, often assumes significance. It has been held

Crl.A. No.67/2012 Page 6 repeatedly that recovery of common objects - even weapon like articles, such as knives, or sticks, etc do not clothe the prosecution version with any special significance, unless their location naturally points to special knowledge. Also if such objects are recovered from open areas, or places accessible to all, the courts have ruled that the manner of recovery, or the recovery itself, does not assume any significance. On the other hand, if articles are recovered from some hidden places, or remote or inaccessible places, or the articles themselves are not common objects, and have some special link with the crime or the victim, the matter, and the knowledge of its location, assumes some significance. It can become an admissible piece of evidence, by virtue of Section 27 of the Evidence Act. (Ref Pulukuri Kottayya v. Emperor AIR 1947 PC 67).

10. The weapons allegedly recovered from the accused and the appellants were from a place as open and crowded as the New Delhi Railway Station. Despite the fact that traces of blood group 'A' were found on the Ustra belonging to Sujit Kumar (the blood group of the deceased), the fact that they were recovered from an open place renders this evidence highly unreliable. However, the Learned Trial Court only considered the fact that these weapons were recovered in pursuance of disclosure statements and therefore admissible as evidence under Section 27. It paid no heed to the fact that they were recovered from the open and without any public witnesses other than Mohd Najim. Further, in the case of these appellants, the recoveries were made nearly two months after the incident. Strangely, Mohd. Najim was around, to help the police; when it was his turn to depose about all these in court, mysteriously - and perhaps conveniently for the prosecution- he went missing. This aspect has to be kept in mind, because there is a singular lack of any public witness, despite the area being crowded at almost all times of the day (i.e. a Railway Station, frequented by almost 3,00,000 visitors each day). The sheer improbability of this story, and the further aspect that such common objects could remain hidden, for nearly two months, undermines the credibility of the prosecution story in this regard."

11. It is also noteworthy, in addition to the above reasoning, that there is a vital discrepancy in the testimonies of PW-22, and that of PW-16, the latter, according to the prosecution had been associated with recoveries, PW-16 himself was however, silent on this aspect. This aspect persuaded the Court, in the previous appeal, to hold that the prosecution evidence was unsafe and not credible.

Crl.A. No.67/2012 Page 7

12. The burden of proving that the accused alone committed the crime, and that no one else was involved in it, is always upon the prosecution. The question of the accused having to explain incriminating circumstances arises only when all those are proved beyond reasonable doubt. In this case, the prosecution sought to present the court with a case based on direct eyewitness account. However, the eyewitness to the crime did not depose in court. The prosecution's attempt to set up an alternative case based on circumstantial evidence, never really "took off" because the so-called incriminating circumstances, largely based on recoveries, were as noticed earlier- from a place, which by any account, would be deemed public, accessible to all. Though an ustra was recovered, that fact is not of much consequence; the prosecution made no attempt to link these articles with the Appellant. Furthermore, motive - which assumes little or no importance in prosecutions based on ocular evidence, should be proved in cases based on circumstantial evidence. Here, the prosecution made no attempt to prove motive.

13. For the above reasons, this Court is of the opinion that the prosecution failed to prove that the present Appellant was guilty of the offence of murder, and other offences, punishable under Section 302/201 and 120-B IPC. The impugned judgment cannot be sustained, as far as the present appellant is concerned. The appeal consequently succeeds, and is allowed. The Appellant shall be released forthwith, if not required in any other case.

                                                          (S.RAVINDRA BHAT)
                                                                     JUDGE



January 18, 2011                                                     (S. P. GARG)
                                                                           JUDGE
Crl.A. No.67/2012                                                             Page 8