Ravi Shankar @ Chintu vs State
2014 Latest Caselaw 4819 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of Decision : September 25, 2014
+                          CRL.A. 509/2014
       RAVI SHANKAR @ CHINTU                     ..... Appellant
                Represented by: Ms.Saahila Lamba, Advocate

                                       versus

       STATE                                           ..... Respondent
                     Represented by:   Mr.Lovkesh Sawhney, APP

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

1. Believing the testimony of Naresh Chauhan PW-4, the brother of deceased Sonu, and finding corroboration to the fact that the purse Ex.P-1 got recovered by the appellant has been proved to be the stolen property; and keeping in view that the appellant refused to participate in the TIP proceedings, vide decision dated October 19, 2013, the appellant has been convicted for the offence punishable under Section 302, 392 and 397 of the Indian Penal Code. For the offence of murder the appellant has been sentenced to undergo imprisonment for life and pay fine in sum of `20,000/- (Rupees Twenty Thousand only), in default to undergo simple imprisonment for six months. For the offence punishable under Section 392 and 397 IPC the appellant has been sentenced to undergo imprisonment for ten years and pay fine in sum of `5,000/- (Rupees Five Thousand only), in default to undergo three months simple imprisonment. The order on sentence is dated

December 16, 2013.

2. The order on sentence would evidence that the learned Trial Judge has taken note of the fact that the appellant was convicted twice earlier for offences punishable under Section 356, 379 and 34 IPC and once for an offence punishable under Section 25 of the Arms Act and was undergoing trial in two other cases for the offence punishable under Section 326 IPC.

3. In our opinion, said past criminal record of the appellant ought to have been kept in mind by the learned Trial Judge while appreciating the testimony of Naresh Chauhan PW-4, for the reason blind murders are known to have been solved by police officers by foisting the act on known criminals. This helps the police officers in taking credit for solving a heinous crime and at the same time getting rid of a petty thief.

4. The impugned decision of the learned Trial Judge would evidence that certain vital admissions made by Naresh Chauhan PW-4 during cross- examination have been completely overlooked.

5. In his examination-in-chief Naresh Chauhan PW-4 stated that on the day of the incident being July 13, 2012 at about 7.30 P.M. he and his brother Sonu were proceeding to their house in Okhla. It was raining. The two were on foot. At Okhla 'T' point he stopped for urination. Sonu went ahead. Suddenly two boys sprang from behind the bushes and tried to snatch Sonu's purse. He raised an alarm. One boy had caught Sonu and the other was grappling with him to snatch the purse. He tried to catch or grapple with the assailants but he was pushed. Before fleeing from the spot the appellant stabbed his brother in the abdomen and the two fled away.

6. During cross-examination he stated : 'Sonu had gone ahead about 500 meters from him when I stopped for urination. I understand the distance of

500 metres. As there was raining at that time, no other public person was seen passing through the way. It is true that traffic was going on. Sonu and the assailants were visible to him from the place where I was urinating'.

7. Regretfully, this aspect of the admissions made by Naresh Chauhan and especially the emphasis by him that he understands the measure of a 500 meter, would evidence that it was just not possible for Naresh Chauhan to have witnessed the features of the two boys who attacked his brother and robbed him of the purse. The reason is obvious. Not only it was night time but was raining. The distance of 500 meter is half a kilometre. At night, when it is raining, from the distance of 500 meter, how well lit a place may be, it is not possible for a person to see the graphic features of the assailants. It is trite that light defuses in water. When it is raining and an area is lit, the light gets defused and a person standing at a distance of 500 meter can never see the features of two persons.

8. In this connection we also need to note that in the rough site plan Ex.PW-19/B no spot has been marked in the legend where a light hole exists. It is only in the site plan to scale Ex.PW-11/A that a light pole has been shown on the central verge of Maa Anandmai Marg near the spot where Sonu was allegedly stabbed.

9. How did the prosecution reach the appellant and the juvenile co- accused who was referred to the Juvenile Justice Board for trial?

10. The usual story of a secret informer informing the investigating officer that the two accused he was looking for would be found at a particular place.

11. The possibility of the investigating officer foisting the crime on the appellant and the juvenile co-accused cannot be ruled out and especially

keeping in view the admissions made by PW-4 during cross-examination.

12. As regards the finding returned by the learned Trial Judge that refusal to participate in the TIP proceedings and appellant's justification when examined under Section 313 Cr.P.C. of being shown to the witness is without any proof that the appellant was shown to the witness and hence the refusal has to be treated as an incriminating circumstances, regretfully the learned Trial Judge failed to note that except for the investigating officer making a bald statement that the appellant refused to participate in the TIP proceedings. There is no evidence to prove that even an application was made to the learned Metropolitan Magistrate to fix a date for TIP proceedings. The record of the TIP proceedings has not been brought on record. The learned Metropolitan Magistrate, far from being examined as a witness has not even been cited as a witness.

13. The only record of TIP proceedings proved is the one concerning the TIP of the purse Ex.P-1.

14. Regarding the purse Ex.P-1 we find it to be an ordinary purse. We find it strange that the accused would retain in the purse the photograph of the deceased.

15. The order on sentence would reveal that the appellant was a thief and surely his experience would teach him to retain such part of the booty which has a commercial value and is non-incriminating and throw away, at the first available instance, the useless incriminating part of the booty.

16. We are thus constrained to allow the appeal and set aside the impugned order dated October 19, 2013 as also the order on sentence dated December 16, 2013.

17. The appellant is acquitted of the charges framed against him and is

directed to be set free if not required otherwise in some other case.

18. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE SEPTEMBER 25, 2014 skb