Delhi High Court
Bablu vs State Of Delhi on 31 October, 2012
Author: Sanjiv Khanna
$~6&7.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 257/2012
% Date of decision: 31st October, 2012
BABLU ..... Appellant
Through Mr. K.D. Rao, Mr. K. Seshachary &
Ms. Sukun Chandela, Advocates.
versus
STATE OF DELHI ..... Respondent
Through Ms. Richa Kapoor, APP for the
State.
CRIMINAL APPEAL No. 296/2012
PANKAJ KUMAR GUPTA ..... Appellant
Through Mr. Sumeet Verma, Advocate.
versus
STATE (GOVT. OF NCT) OF DELHI ..... Respondent
Through Ms. Richa Kapoor, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG
SANJIV KHANNA, J.: (ORAL)
Bablu and Pankaj Kumar Gupta have challenged their conviction
vide judgment dated 6th August, 2011 for having committed murder of
Pappu on 17th January, 2010, at about 11.00 P.M., on the pavement of
main road Najafgarh, in front of Metro Pillar No. 564, New Mahavir
Nagar, Najafgarh, Delhi. The two appellants have been sentenced to
life imprisonment under Section 302 read with Section 34 of the Indian
Penal Code, 1860 (IPC, for short). They have been directed to pay fine
of Rs.2,000/- each, in default of which, they have to undergo simple
imprisonment for a period of one month.
2. The prosecution case is premised upon the statement of alleged
eye witness Satpal (PW-4) who, in his examination-in-chief, stated that
he was employed as a watchman at Kamal Tent House, New Mahavir
Nagar, Tilak Nagar. On 17th January, 2010, at about 8.00 P.M., he
came to attend his duty and was warming himself by burning wood.
At about 11.00 P.M. Pankaj and Bablu, who were employed in the tent
house, joined him and started warming themselves. They also had
liquor. Thereafter, he went on a round, as a part of his duty, and when
he returned he saw that the appellants- Pankaj and Bablu- were
quarrelling and abusing Pappu. The appellant-Pankaj dashed Pappu to
the ground and caught him. Meanwhile, appellant Bablu hit Pappu on
his head twice, with a big stone. According to PW-4, the quarrel
occurred over a money dispute. Before hitting Pappu, the appellant
Bablu had said that he would finish him. Thereafter, the appellants ran
away. Satpal (PW-4) avers that he informed his son about the alleged
incident and his son called the owner of the Kamal Tent House. Police
came to the spot and recorded his statement (Exhibit PW-4/A) which
bears his signatures. Subsequently, on 19th January, 2010 at 2.00 P.M.
and 4.30 P.M. respectively, the two appellants Bablu and Pankaj were
arrested, after being identified by PW-4, who is also a signatory to the
arrest memos (Exhibits PW-4/B and PW-4/D, respectively).
3. Learned counsel for the appellants has submitted that PW-4 was
not an eye witness and consequently his version should not be accepted
and has been wrongly believed by the trial court. Various
inconsistencies in PW-4's statement and the statement of ASI
Gurcharan Singh (PW-21) and Constable Charanjeet Singh (PW-14)
have been pointed out. It is submitted that according to PW-21 and
PW-14 when they reached the spot of occurrence, on 17/18 January,
2010, they could not locate any eye witness and this is in stark contrast
to PW 4's version who claims to be at the spot when the police arrived.
4. We have considered the appellants' contentions and heard the
learned Additional Public Prosecutor whether PW-4 was an eye
witness or not and we are inclined to accept appellants' contention for
the reasons set out below.
5. In the present case, the police swung into action after
information was received at Police Control Room on 17th October,
2010 at 2136 hours (vide Exhibit PW-16/A), that near Pillar No. 564,
New Mahavir Nagar, Tilak Nagar, one person was lying unconscious.
The call was made by Kapil Batra from telephone no. 9818019341.
The PCR van reached the crime spot and recorded, at 2359 hours, that
one dead male body was found. What is to be noticed is that name of
the person is not mentioned anywhere in Exhibit PW-16/A. Neither did
the informer, i.e., Kapil Batra (PW-6) give the deceased's name. The
PCR van and the police officers remained present at the crime spot till
at least 1.13 hours on 18th January, 2010. On the basis of information
given by the PCR van, DD entry No. 40A dated 17 th January, 2010
(Exhibit PW-1/A) was recorded at about 11.40 P.M. The said entry
again does not mention the person's name who was found unconscious
at the said spot.
6. ASI Gurcharan Singh (PW-21) reached the spot, after DD entry
No. 40-A (Exhibit PW-1/A) was recorded in Police Station, Tilak
Marg, at 11.40 P.M. He has averred that a dead male body was found
in blood with injuries on the head and the face. Three stones were
lying near the dead body, out of which two stones had blood marks.
An empty liquor bottle and two empty glasses were lying at some
distance. Evidence was collected from the spot. In his examination-in-
chief, PW-21 has stated that, on enquiry, one eye witness, namely,
Satpal Singh (PW-4) met him and revealed that he saw the occurrence.
However, it is noticeable that PW-4's statement (Exhibit PW-4/A) was
recorded, on 18th January, 2010 at 8.30 P.M. Pursuant to the said
statement, FIR No. 10/2010 was recorded at Police Station, Tilak
Nagar, at 8.45 P.M. PW-21, in his cross-examination, has stated as
under:-
"On 17.1.2010, I reached on the spot at 11.50 pm
and stayed there till 10.00 am next day. At about
6.00 am public persons came out and were present
on the spot and before this time no public persons
was seen on the spot on around the spot. We tried
to search public person on the spot, when we
reached there but despite our best effort no public
person found there. Even the Watchman patrolling
the lanes of the locality were not present there.
The owner of the shop Kamal Tent House came on
the spot in the morning at about 6.00 am. His
statement was not recorded. He did not tell
anything about this case. He also did not tell about
any other person who can be acquainted with the
facts of this case.
We returned from the spot at about 10.00
am. The dead body of the deceased was sent to the
DDU mortuary after 2-3 hours of our reaching on
the spot. Thereafter, at about 10.00 am all of us
came be back to PS Tilak Nagar. Thereafter, on
the same day at about 5.00 pm we reached at the
spot. Since we have not recorded our arrival in the
PS at 10.00/11.00 am so we did not record our
departure from the PS at about 5.00 pm for the
spot. We found the eye witness Satpal near
Mother Dairy booth situated at Mahavir Nagar and
this booth was at a distance of about 200 mtrs. We
came to know about this person during our
investigation. We came to know about this eye
witness through secret informer, so I cannot tell
the name of that person. I did not inquire from the
secret informer as to how he came to know about
the eye witness having seen the incident. On
inquiry, the eye witness told me that he was on
patrolling and did not come forward to tell us
about the incident out of fear. From the police
officials, who were on patrolling duty in this area,
we could not come to know about the Watchman
present in the said locality. From the Mother
Dairy booth the PW Satpal was brought on this
spot and there his statement was recorded by me in
my own handwriting. Before sending the Rukka to
the PS, I discussed with SHO S.D Dahiya PS Tilak
Nagar, regarding the eye witness and his statement
and he instructed me to record the Tehrir and sent
the Rukka and did not send any Sr. officer at the
spot. IO of this case Inspector Ramesh Singh
came on this spot alongwith FIR and Asal Tehrir at
about 10.00 pm. He also stayed there for a very
long time but I cannot tell the probable duration of
his stay on the spot."
7. Constable Charanjeet Singh (PW-14) visited the spot with PW-
21. This as noticed was after DD entry No. 40A (Exhibit PW-1/A) was
recorded. In his examination-in-chief, he described what he saw at the
spot but he has not indicated presence or statement by any eye witness.
He has stated that he had taken the dead body to DDU Hospital and
deposited the same in the mortuary of the DDU Hospital but, in his
application made to DDU Hospital, the name and other parental details
of the deceased was not mentioned. Thus, PW-14 was not aware of the
said particulars/details. PW-14 had, thereafter, remained there at the
mortuary. In his cross-examination, PW-14 stated as under:
"On the day of the incident, I along with other
police officials left the police station after 12.00
midnight and reached on the spot in between 12.15
- 12.30 am. When we reached on the spot, nobody
was present there. Patrolling party reached on the
spot after about 15-20 minutes of our reaching on
the spot. The patrolling party remained on the spot
for some time and left the spot after the arrival of
crime team however crime team stayed on the spot
for longer time. I exactly do not remember the
period of stay of the crime team on the spot as I
had already gone with the dead body to the
mortuary. I left the spot with the dead body of the
deceased at about 01.15 am for DDU hospital and
did not come back on the spot. During my stay on
the spot, no public person came over there.
However the watchman was interrogated in my
presence by the IO on the spot on the same day.
The watchman was not able to tell anything and
stated that he had not witnessed anything. His
statement was not recorded by the IO before me. I
do not remember the name of that watchman as he
was very much perturbed and disturbed. The
watchman was quite slim and was having darkish
complexion. The watchman however admitted
that he used to remain on duty in that area
throughout the night and it appeared as if he was
aware of the incident but was not disclosing the
facts."
8. The mobile Crime Team Report (Exhibit PW-8/A) shows that
they had visited the crime spot, on 17th January, 2010 at 12.40 A.M.,
and had remained there till 1.10 A.M. The Report (Exhibit PW-8/A)
does not mention the name of the deceased and does not indicate that
any eye witness was found at the spot. The Investigating Officer was
advised to do the needful. The Crime Team Report took only
photographs at the spot.
9. It is, therefore, clear from the aforesaid evidence that when the
police officers, namely, PW-21, PW-14 and the crime team reached the
spot, they did not find any eye witness. In fact, they did not even know
the deceased's name. No public person could be found and cause of
the injuries could not be ascertained. No one was suspected for
possibly causing the injuries. As per PW-14, a watchman was
interrogated, at the spot itself, and no information could be ascertained.
PW-14's statement indicates that the statement made by the watchman
(PW-4) was debatable and some suspicion was raised. The police
suspected the watchman's (PW-4) involvement. This appears to be
correct. PW-4, the alleged eye witness in his cross-examination has
admitted as under:
"...Thereafter I saw the police arriving at the spot.
Police persons came in the Govt. vehicle. On
enquiry, I narrated the incident witnessed by me.
Police recorded my statement on the same day at
12.00 midnight while sitting inside Kamal Tent
House. In my statement, I narrated each and
everything witnessed by me. Police took me to the
police station. Police released me at about 10.00
am after two days of my detention in the police
station. I was detained in the canteen situated
inside the police station. During the period, police
did not allow me to go anywhere and I was
allowed to leave the police station for the first time
on 20.01.2010. All the papers shown to me today
were got signed by the police in the police station.
Some papers were got signed by the police at
Kamal Tent House office. Again said. No paper
was got signed in the police station or office of
Kamal tent house and all the papers were got
prepared and signed at the spot of occurrence.
Since I did not read those papers, I cannot say
what was written in those papers. I do not know
what was recorded by the police in my statement
Ex.PW4/A. Police has read over my statement to
me. I was told by the police what was written in
my statement. The owner of Kamal tent house had
come to the police station when I was there."
10. We may note that the Public Prosecutor did not re-examine PW-
4 after the aforesaid statement was made in the cross-examination by
him.
11. From the statement of PW-4, in the cross-examination, it is
noticeable that he was detained by the police for two days. He was
detained, in a canteen, inside the police station and was not allowed to
leave. According to PW-4, his version or statement was recorded on
17th January, 2010 at 12.00 midnight when he had met the police
officers, at the crime spot. This factum is completely controverted and
is contrary to the official records, that is the Crime Team Report
(Exhibit PW-8/A) and the application made to DDU Hospital for
deposit of body in the mortuary. It is contrary to statements of PW21
and PW14. As noticed above, the Rukka on the statement of Satpal
Singh (Ex. PW-4/A and PW-21/B) was recorded and sent to the Police
Station, on 18th January, 2010 at 8.30 P.M. and thereafter, the FIR
(Exhibit PW-2/A) was recorded at 8.45 P.M. Thus there is substantial
delay in recording of the FIR, which is not explained and in the present
case casts doubt whether PW4 was actually an eye witness.
12. We may now refer to the statement of Sudhir Singh S/o Satpal
(PW-3) who claims to have informed about the said occurrence to the
owner of Kamal Tent House, from his mobile number. PW-3 has stated
that his father, watchman Satpal (PW-4) had come to him and
informed that two boys killed a boy and ran away. PW-4 did not name
the boys. He, thereupon, made a call to Kapil, Kamal Tent House's
owner. He was declared hostile and in cross-examination, by the
Additional Public Prosecutor, stated that his father Satpal woke him at
11.30 PM on 17.01.2010, and told him that Bablu and Pankaj had run
away after killing Pappu. Thereupon, he made a call to Kamal on his
mobile number. In his cross-examination, he has stated that he went to
the spot and found the deceased lying in front of Kamal Tent House.
After five minutes, the police arrived at the spot. His father was
already present. Relevant portion of his cross-examination reads as
under:-
"On that day I had gone to work at Hari Nagar and
returned home at about 8 P.M. My father Satpal
was also residing with me at DMS Booth. The
Booth where I reside and the place of occurrence is
about 15 shops away from each other. After
informing me about this incident my father
returned on his duty. I went to see the deceased
lying in front of Kamal Tent House after about 5
minutes of the arrival of the police at the spot. The
police reached the spot at about 11.30 P.M. to 12
midnight. My father was already present on the
spot when the police arrived there. The police
stayed there for hardly about 10-15 minutes. The
police picked up the deceased and took my father
with them. I did not enquire from police persons
who took away my father and the deceased as to
where they are going. Police did not do any writing
work there before taking away the deceased and
my father from the spot. Next day in the evening
on 18.01.10 one police person came to my place
and I accompanied the police person on my asking.
I was made to sit in the PS for one night. My
father was also made to sit in the PS with me.
After one night I was allowed to leave the PS but
my father remained there and returned only in the
evening on 19.01.10. My father immediately left
for our native village and he did not inform me
anything."
13. The statement of PW-3 affirms the fact that Satpal (PW-4) and
Sudhir (PW-3) were detained and kept in police custody since the
police suspected their involvement. It is thus clear that there is
material contradiction in the statement made by PW-3 and PW-4, viz.,
the statements made by the crime team, PW-14 and PW-21. The
statement made by PW-3 and PW-4 is to the effect that they were
present at the crime spot and had met the police officers and that PW-4
had informed the police officers that he was an eye witness to the
occurrence. This is, however, not supported by and is categorically
denied in the statement made by PW-14 and PW-21 or the Police
Control Room information (Exhibit PW-16/A). The aforesaid material
contradictions and inconsistencies are extremely relevant and
fundamental. Thus, presence of PW-4 at the spot or his being an eye
witness becomes doubtful. It has become apparent that PW-4 was
initially the prime suspect and had been detained by the police, before
the appellants' were arrested.
14. We may now refer to the statement of Kapil (PW-6). He has
stated that, on 17th January, 2010 at about 11.30 P.M., he was informed
by one Sudhir, on his mobile phone that one boy was lying
unconscious on the pavement, in front of his shop and he had
immediately relayed the information on No. 100. It is noticeable that
in his statement he has not mentioned the name of the boy or the name
of the assailant or that he had employed Satpal (PW-4) as watchman
who had seen the occurence. Neither has he stated that the appellants
and the deceased were employed by him or worked with him, as labour
or as a waiter.
15. It is to be noticed that no finger prints were lifted from either the
liquor bottle or the glasses to match with the finger prints of the two
appellants. The CFSL Report (Exhibit PW-22/G and PW-22/H)
records that the deceased's blood group could not be ascertained. The
CFSL Report does not show that the blood group, found on the alleged
clothes recovered from the appellants, was same as the deceased's
blood group.
16. We may notice here that, as per initial statement of PW-4 in the
First Information Report (marked Exhibit PW-4/A), the deceased had
hit Bablu with a stone. He narrates that:
"Yesterday, on date 17.1.2010 at 8 pm in the night I
had reported for my duty as a watchman and had lit
a fire in front of Kamal Lights and Tent House, and
was warming myself in front of the fire. At
approximately 11 pm at night I was joined by
Pankaj and Bablu who are employed as waiters on
contract with Kamal Lights and Tent House. They
joined me by the fire and started drinking their
liquor from a bottle (pawwa) which they had
brought with them, and after a while another boy
called Pappu who also works as a waiter joined us.
After some time, Pankaj and Bablu started
quarreling with Pappu over a money dispute, at
which Pappu hit Bablu with a large stone. On being
hit by the stone Bablu shouted at Pankaj saying,
"Catch him we shall finish him today". Pankaj
dropped Pappu to the ground and shouted to Bablu
"Hit him with stones," at which Bablu hit Pappu,
who was lying on the ground, twice on his head
with a large stone. Pappu became unconscious and
a lot of blood from his head fell on the pavement,
and Bablu and Pankaj ran away. I became very
afraid at this, and went and woke up my son Sudhir
who was sleeping at the DMS booth and told him
what had occurred. He telephoned the son of the
owner of Kamal Tent House, [email protected] Dipu, and
told him that a man was lying unconscious in front
on his shop, who was Pappu who had been attacked
by Pankaj and Bablu."
17. However, we notice that in the arrest memo of appellant-Bablu
(Exhibit PW4/B) there is no mention of any injury on appellant Bablu.
There is no other record to prove that appellant Bablu had suffered any
injury and no MLC of Bablu is on record. The alleged telephone call
details, with regard to exchange of telephone call between PW-3 and
PW-6, have not also been placed on record and proved.
18. In view of the aforesaid position, we are inclined to accept the
plea and contention of the appellants that they are entitled to benefit of
doubt and the prosecution has not been able to substantiate and prove
beyond doubt the allegation that the appellants had committed the
offence. The appeals are accordingly allowed. The appellants will be
released forthwith unless required in any other case.
SANJIV KHANNA, J.
S.P. GARG, J.
OCTOBER 31, 2012
VKR
