Delhi High Court
State ( Govt Of Nct Of Delhi) vs Azad Singh & Anr on 5 November, 2015
Author: Sanjiv Khanna
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05th November, 2015
+ CRL.L.P. 284/2015
STATE ( GOVT OF NCT OF DELHI) ..... Petitioner
Through Mr. Varun Goswami, APP with
Insp. Mohan Singh, ATO/K N
Katju Marg
versus
AZAD SINGH & ANR ..... Respondent
Through Mr. Baban Kr. Sharma and Mr.
Dharambir Chotiwala, Advs.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA
SANJIV KHANNA, J. (ORAL):
1. This leave to appeal impugns judgment dated 29.11.2014 passed
in sessions case No.6/2011 arising out of FIR No.286/2010, PS K N
Katju Marg acquitting respondents Azad Singh and Monu, son of Azad
Singh, of the charge of having murdered, Mahender Singh and offence
Section 201 of the Indian Penal Code, 1860 ('IPC' for short).
2. There is evidence to show that the dead body of Mahender Singh
with ligature marks was found in a plastic sack in Haiderpur Water
Treatment Plant on 14.09.2010 at 7.15 PM. There is also some
evidence to suggest, which at this stage we are inclined to take on
record, that the deceased Mahender Singh used to like Suman (PW-6)
daughter of the respondent-Azad Singh and sister of respondent No.2,
though Suman (PW-6) in the Court deposition had turned hostile. At
best this would indicate and reflect motive, but motive by itself is not
sufficient to implicate the two respondents with the crime in question.
3. It is noticeable and in our opinion the trial court has rightly
observed that purported recoveries do not show and establish that the
offence in question was committed at the residence of the respondents
or that murder was committed with the hammer or associate the cycle
with the crime. Blood was not detected on the hammer or the cycle
[Deposition of Kamlesh Babu (PW-10) relating to the cycle has been
examined below]. It is alleged that the slippers of the deceased were
recovered from the residence of the respondent Azad Singh. The said
assertion is difficult to accept and believe for the reason that the dead
body of Mahender Singh was found at 7.15 PM on 14.09.2010, which
implies that the death had taken place even earlier and there was be no
reason and cause for the two respondents to keep the slippers with
them as late as on 17.09.2010, when they were arrested.
4. This leaves us with the testimony of Kamlesh Babu (PW-10).
Mahender Singh was his nephew. PW-10 professes that Mahender
Singh, for last one year was residing with him. They were both halwai
by profession. Kamlesh Babu (PW-10) avers that Mahender Singh had
left at night on 12.09.2010 stating that he was going to work as a
halwai with the contractor Rishipal at village Pooth Khurd. Thereafter,
Mahender Singh did not return home. Even PW-10 did not return
home for two days as he was busy at work. PW-10 got perturbed on
15.09.2010 after he had received a call from Rustam (PW-4). On
16.09.2010 Rustam and Hare Lal came to Delhi and they went to the
Police Station K N Katju Marg and from there to the mortuary at Sabzi
Mandi, where they had identified the dead body of Mahender Singh.
5. We have some difficulty in accepting this version for it is clear
that on 14.09.2010 when the dead body of Mahender Singh was found
in the sack at Haiderpur Water Treatment Plant, the police had
ascertained and PAN card of Rustam, SIM of Reliance mobile and
some papers on which phone numbers and account number were
found. It is also not understandable why Kamlesh Babu (PW-10) did
not feel appropriate and necessary to talk to Mahender Singh at least
on telephone between 12.09.2010 till 15.09.2010. Even if we accept
that, Kamlesh Babu (PW-10) had left for his work and had remained
busy, it would be normal and natural for PW-10 to remain in touch and
contact Mahender Singh. The aforesaid factual position and conduct of
Kamlesh Babu (PW-10) has become relevant and is significant as
Kamlesh Babu (PW-10) proclaims that he was an eye witness and had
seen the two respondents at about 2 - 2.30 AM on 12.09.2010 when he
had come out of his room to ease himself in the gali (street).
Respondents Azad and Monu were seen by him coming out from house
with a bora (sack), kept on the carrier of a bicycle. They had tied the
bora with a cycle tube. It is on the basis of this statement that the
respondents are being implicated as the perpetrators of the offence, in
addition to the motive noted above. Motive in the present case,
looking at the factual background it could be argued, could be the
reason why Kamlesh Babu (PW-10) has made the said assertion. We
have carefully examined the testimony to Kamlesh Babu (PW-10) and
would have hesitation in reversing the finding of the trial court in not
accepting the eye witness version about the doubtful betide at about 2 -
2.30 AM in the intervening night between 12 and 13.10.2010. If
Mahender Singh had gone missing and PW-10 had seen the
respondents moving about suspiciously at 2 -2 2.30 AM at night, it
would have aroused scepticism and Kamlesh Babu (PW-10) would
have got informed and spoken to the family members of Mahender
Singh. Kamlesh Babu (PW-10) has testified that he came to know
about the murder on 15.09.2010 or 16.09.2010. However PW-10's
statement under section 161 Cr.P.C. was recorded on 17.09.2010. It is
also noticeable that Kamlesh Babu (PW-10) did not identify the plastic
sack in which the dead body of Mahender Singh was found. He did
not depose that the sack was the same sack which he had seen on the
said intervening night.
6. In view of the aforesaid discussion we do not find any merit in
the present leave to appeal and the same is dismissed.
(SANJIV KHANNA)
JUDGE
(R.K.GAUBA)
JUDGE
NOVEMBER 05, 2015
VLD
