Delhi High Court
Amit Kumar vs The State (Nct Of Delhi) on 31 July, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. A. No.174/2017
Reserved on: 10th July, 2017
% Date of Decision: 31 st July, 2017
AMIT KUMAR .....Petitioner
Through: Mr. Rajender Prasad, Advocate
Versus
THE STATE (NCT OF DELHI) .....Respondent
Through: Mr. Rajat Katyal, APP for the State
CORAM:
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
CHANDER SHEKHAR, J.
The appellant has filed the present appeal under Section 374 of the
Code of Criminal Procedure 1973 (Cr.P.C.), against the impugned
judgment, dated 10.02.2015, and order of sentence, dated 12.02.2015,
respectively passed by Sh.Sandeep Yadav, Additional Sessions Judge-5,
South District Court, Saket, New Delhi in case FIR No.359/2009, P.S.-
Vasant Vihar, whereby the appellant has been convicted under Section 302
of the Indian Penal Code (IPC), 1860 and sentenced to undergo simple
imprisonment for life and fine of Rs.5,000/- and in default of payment of
fine further simple imprisonment for one year.
2. The case of the prosecution as noticed by the trial court is that Sujeet,
elder brother of complainant Barjeet, was married with one Jyoti on
15.01.04. Out of this wedlock, one boy namely Kunal was born in the year
2006. In December 2008, Jyoti w/o Sujeet went with appellant Amit and
left her son Kunal with Sujeet. Complainant Barjeet, his elder brother
Sujeet and appellant Amit, were residing at Moti Lal Camp, DDA Flats,
Munirka, New Delhi. When Jyoti came back, a panchayat was held in the
area and as per the decision of the panchayat, marriage between Sujeet and
Jyoti was dissolved and therefore Jyoti started living with Amit in slums.
Appellant Amit used to taunt and abuse Sujeet on this issue. On 10.11.09 at
about 10.30 pm Barjeet (brother of the deceased) and his elder brother
Sujeet, were plucking leaves from tree for their goat on the boundary wall
of Health Society. Sujeet was standing at a distance of 10-15 steps from
complainant Barjeet. At that time, appellant Amit came on a grey colour
scooter and hit against Sujeet, as a result of which Sujeet fell down,
thereafter, appellant Amit shouted that he will not spare Sujeet, as Sujeet
was intending to snatch Jyoti from him. Appellant Amit caught Sujeet by
collar with his left hand and assaulted on his neck repeatedly with a meat
cutting knife. Sujeet after receiving first knife blow from Amit asked Amit
to leave him but Amit did not leave Sujeet. Appellant Amit hit Sujeet on
his face with the heal of his shoes when complainant Barjeet came down
from the wall and rushed to save his brother, appellant Amit rushed towards
Barjeet with the knife to hit him. Barjeet ran away to his house and called
his family members to the spot. By that time, appellant Amit had fled away
from the spot with the scooter. Barjeet categorically stated that appellant
Amit has killed his brother on account of previous enmity regarding Jyoti.
3. The manner in which the crime was detected and investigated stands
detailed in Police report filed under Section 173(2) of the Code of Criminal
Procedure. Thereafter, information regarding this incident was received in
Police Station Vasant Vihar vide DD no. 21-A and thereupon PW-13 SI
Sujit along with Ct. Mahesh reached cremation ground in front of Moti Lal
Nehru Camp, DDA Flats, Munirka and found one person lying in pool of
blood in front of the gate of cremation ground. Police officials found deep
wound with sharp edged weapon on the neck of the injured. Inquiry
revealed the name of the injured as Sujeet, s/o. Naubat Ram, after recording
the statement of Barjeet, dead body was sent to Safdarjung Hospital where
the concerned doctor declared Sujeet as brought dead. Thereafter, a case
under Section 302 IPC was registered. ASI Surjit lifted blood sample of
deceased and earth control from the spot. Blood stained mat of scooter was
lifted from near the dead body and one sleeper was also lifted and seized.
Thereafter, the investigation of this case was transferred to Inspector
Kishore Kumar and appellant Amit was arrested from Nelson Mandela
Road Near Aggarwal Sweets Munirka based on the identification of
Barjeet. Disclosure statement of appellant Amit was recorded. Appellant
got recovered the knife and scooter used in the crime, blood stained pant,
jacket, shoes of appellant which he was wearing at the time of commission
of crime, and he was wearing the same clothes at the time of his arrest, were
also seized. Post-mortem of the dead body was conducted, clothes of dead
body and blood in gauze was preserved. In the post-mortem, the Doctor
opined the cause of death as "hemorrhagic shock due to anti mortem
injury to (Rt) common carotid artery produced by sharp edged weapon.
Injury no. 1-3 are produced by sharp edged weapon. Injury no.1 is
sufficient to cause death in ordinary course of nature. Investigating
Officer also obtained subsequent opinion of the Doctor on the knife and the
concerned Doctor opined that injury no. 1, 2, 3 and 5 are possible by
submitted weapon. Thereafter, Inquiry was conducted about the ownership
of scooter no. DL3SK 1719 and it was found that the said scooter was
registered in the name of Sunil Kumar. Sunil Kumar told the Investigating
Officer that he had sold the said scooter to Manisha Kanti on 03.03.02.
Inquiry further revealed that the appellant Amit had purchased this scooter
from one Kabadi. On 19.11.09, scooter no. DL3SK 1719 was sent to FSL,
Rohini for inspection, blood stains from front side of scooter and left side of
dicky were lifted, after completion of investigation, charge sheet was filed
in the Court. Appellant was charged u/s. 302 IPC on 10.02.10. Appellant
pleaded not guilty and claimed trial.
4. To bring home the guilt of the appellant, the prosecution examined
19 witnesses in all. Statement of appellant was recorded under Section 313
Cr.P.C., wherein he pleaded false implication. During his examination
under Section 313 Cr.P.C, appellant admitted that Jyoti was deserted by
Sujeet and appellant was married with Jyoti. Appellant also admitted that a
panchayat was held wherein a divorce was effected between Jyoti and
Sujeet and thereafter, appellant Amit got married with Jyoti. However,
appellant denied having ever fought with Sujeet regarding his marriage with
Jyoti. Appellant stated that on 10.01.09, he had gone to drop his
grandmother (maternal) namely Shakuntala at JNU where she was working.
Appellant further stated that he does not know how to drive a scooter. One
defence witness namely Shakuntala was also examined on behalf of
appellant.
5. Learned counsel appearing for the appellant has strongly urged
before this court that the learned trial court has erred in passing the
impugned judgment as the trial Court has wrongly appreciated the facts and
passed the judgment and the order of sentence contrary to law. He also
contended that the appellant has been falsely implicated in this case. It has
been strongly urged by the learned counsel for the appellant before this
court that the deposition of PW-3 Barjeet (Brother of the deceased) who is
stated to be an eye witness in the present case, is highly doubtful since the
incident did not take place in his presence, learned counsel for the appellant
further submits that the recovery of the scooter has been planted in order to
falsely implicate the appellant.
6. Per contra, Mr. Rajat Katyal, learned counsel for the State submits
that the prosecution has been able to prove its case beyond any shadow of
doubt.
7. Learned counsel for the State submits that there was ample evidence
available on record to bring home the charges against the appellant
warranting him conviction. He submitted that the prosecution witness PW-
3 Barjeet had duly identified the appellant Amit.
8. PW-3 Barjeet, PW-11 SI Randhir Kumar, PW-13 SI Surjeet Singh,
PW-14 Dr. Abhishek Yadav, PW-15 Ct. Suresh Kumar, Pw-18 Inspector
Kishore Kumar, PW-19 Ms. Seema Nain, are the material witnesses in this
case.
9. We have heard learned counsel for the parties, considered their rival
submissions, examined the trial Court record and the testimonies of
witnesses and considered the impugned judgment rendered by the trial
Court.
10. In this case, on consideration of evidence and material placed on
record and after considering the arguments advanced, we have found that
the following circumstances were relied upon by the trial Court to convict
the appellant:-
(i) Appellant Amit was married to Jyoti who was earlier the wife
of the deceased (Sujeet) as per the decision of the Panchayat
marriage between Sujeet and Jyoti was dissolved and
therefore, Jyoti had started living with Amit. Amit used to
taunt and abuse Sujeet on this issue.
(ii) On 10.11.09 at about 10.30 pm Barjeet and his elder brother
Sujeet were plucking leaves from a tree for their goat on the
boundary wall of Health Society.
(iii) Thereafter, the appellant Amit came at the above-said place on
a grey colour scooter and hit against Sujeet, as a result of
which Sujeet fell down and appellant Amit assaulted on the
neck of Sujeet with a meat cutting knife and hit Sujeet on his
face with the heal of his shoes and killed Sujeet.
(iv) Dead body of the deceased was recovered and was sent to
Safdarjung Hospital where the concerned doctor declared
Sujeet as brought dead.
(v) Thereafter, a case under Section 302 IPC was registered.
(vi) Knife and scooter used in the commission of crime got
recovered at the instance of the appellant Amit and the injuries
found on the body of the deceased could have been caused by
the same.
(vii) Biological and Seriological evidence established that the blood
detected was found to be of human origin blood group being
―O‖ which matched the deceased's blood group.
(viii) Recovery of blood stained pant, jacket, shoes; of appellant
Amit which was worn by the appellant at the time of
commission of crime, was also wearing the same clothes at the
time of his arrest.
11. In order to deal with the contentions of both the parties, it would be
appropriate to examine the testimonies as recorded and noticed by the trial
Court of the material witnesses including PW-3 Barjeet (brother of the
deceased), PW-5 HC Rajbir, PW-6 Chandi Prasad, PW-7 Smt. Murti, PW-8
HC Vinod Kumar, PW-11 SI Randhir Kumar, PW-13 SI Surjeet Singh,
PW-14 Dr. Abhishek Yadav, PW-15 Ct. Suresh Kumar, PW-18 Inspector
Kishore Kumar, PW-19 Ms.Seema Nain, which were strongly relied by the
trial Court to convict the appellant.
12. PW-3 Barjeet, brother of deceased testified as an eye witness of the
incident, who also deposed that in the year 2009, he was residing at
S-99/207, Moti Lal Nehru Camp, Munirka, New Delhi, deceased Sujit was
his elder brother, deceased Sujit got married in the year 2004 with Jyoti, in
the year 2006, a son was born out of the said wedlock, in the year 2008,
Jyoti went away with Amit, there was quarrel between deceased Sujit and
Amit on this ground every day, a panchayat was convened where a divorce
was effected between the deceased and Jyoti, thereafter Jyoti continued to
live with Amit. Even after, the divorce between deceased and Jyoti,
appellant Amit kept on abusing and taunting the deceased. PW-3 Barjeet
further deposed that he and his deceased brother Sujit came to the boundary
wall of Health Centre near the cremation ground, PW-3 Barjeet was
plucking leaves for his goat and his brother Sujit was standing at a distance
of 10-15 steps. In the meantime, appellant Amit came on a grey colour two
wheeler scooter and hit against deceased Sujit from behind, deceased fell
down, appellant Amit drove the scooter over deceased and took out a meat
cutting knife and stabbed deceased Sujit. PW-3 Barjeet got down from the
wall and rushed to save his brother's life, the appellant ran towards him
with a meat cutting knife to hit him and PW-3 Barjeet started running away
to his house due to fear, at the time of being stabbed deceased Sujit asked
Amit to spare him but appellant Amit said that he will not leave him on that
day, appellant Amit also hit on the face of deceased with the heal of his
shoes, PW-3, returned to spot with his family members, by that time
appellant Amit had ran away from the spot with his scooter. PW-3 Barjeet
further deposed that he had made a call to police on 100 number, police
came at the spot and carried out the proceedings and took photographs,
police also collected blood stained earth control in plastic container with the
help of cotton and seized the same vide seizure memo Ex. PW-3/A and
Ex.PW-3/B, police also collected blood stained soil which was sealed in
plastic container and was seized vide memo Ex.PW-3/C, police also seized
sleepers of deceased Sujit vide memo Ex. PW-3/D. PW-3 Barjeet further
deposed that the dead body of his brother was sent to Safdarjung hospital
and his statement Ex.PW-3/E was recorded by police at the spot.
Thereafter, appellant Amit was arrested vide arrest memo Ex.PW-3/F which
bears signature of PW-3 Barjeet, thereafter, appellant Amit got recovered
the knife from the roof of his house, Appellant Amit also got recovered the
scooter which was used in the crime. According to PW-3 Barjeet, the
Investigating Officer also recovered one pair of shoes of appellant Amit
which he was wearing at the time of arrest, Investigating Officer also seized
blood stained jacket of Amit which was sealed in pulinda, seized vide
memo Ex.PW-3/K. PW-3 Barjeet further deposed that the Investigating
Officer also seized blue colour jacket, blood stained jeans of appellant
which he was wearing at the time of commission of the offence as described
by PW-3 Barjeet. PW-3 Barjeet identified blood stained gauze in the Court
as Ex.P-I and Ex.P-I-A, the knife as Ex.P-3, blue colour jeans which
appellant was wearing at the time of committing the crime as Ex.P-4, jacket
of blue colour which appellant was wearing at the time of committing the
crime as Ex.P-5, pair of brown coloured shoes which appellant was wearing
at the time of committing the crime as Ex.P-6, piece of blood gauze as
Ex.P-1-B, another blood in gauze as Ex.P-1-C.
13. PW-5 HC Rajbir testified that he took the case property of case i.e.,
sealed knife vide RC No.112/21 and gave the same to Autopsy surgeon at
Safdarjung Hospital. As per the direction of Investigating Officer, PW-5
HC Rajbir Singh collected back sealed knife from the doctor along with his
opinion and handed over the same to Investigating Officer vide memo Ex.
PW-5/B.
14. PW-6 Chandi Prasad and PW-7 Smt. Murti testified about the
Panchayat which had taken place to effect the divorce between Jyoti and the
deceased. PW-7 Smt. Murti deposed that it was decided in the Panchayat
that Jyoti will not be kept by her husband and other family members and
she was sent out of her matrimonial home.
15. PW-8 HC Vinod Kumar testified that he along with the investigating
Officer took the scooter no.DL3SK 1719 vide RC No.118/21/09 to FSL,
Rohini, blood stains were lifted from the scooter and memo Ex.PW-8/A
was prepared to the effect. PW-10 W/ASI Sunita is the Duty Officer who
registered FIR as well as DD No.21-A and proved the same in the Court.
16. PW-11 SI Randhir Singh (Retd) testified that appellant Amit along
with one more person was arrested by him for the offence 107/151 Cr.PC
when he after receiving DD No. 44-A reached the spot where appellant
Amit was quarrelling with his neighbour Sanjay. Copy of kalandra u/s.
107/151 Cr.P.C. was proved by PW-11 as Ex. PW-11/A.
17. PW-13 SI (Rtd.) Surjit Singh deposed that DD No. 21-A was
assigned to him and after receiving the same, he along with Ct. Mahesh
reached the spot i.e, Moti Lal Nehru Campus Munirka in front of
cremation ground, where a dead body was lying. PW-13 SI (Rtd.) Surjit
Singh informed senior officials, SHO P.S. Vasant Vihar reached the spot,
Crime Team was called and spot was inspected, dead body was sent to
Safdarjung Hospital, MLC of deceased was obtained. PW-13 SI (Rtd.)
Surjit Singh prepared detailed ruqqa Ex. PW-13/A and got the case
registered through Ct. Surender. PW-13 SI (Rtd.) Surjit Singh further
deposed that he lifted the blood, blood stained control, etc. from the spot
vide memo Ex. PW-3/A, Ex. PW-3/B, Ex. PW-3/C. PW-13 SI (Rtd.)
Surjit Singh also seized chappal from the spot vide memo Ex. PW-13/D.
18. PW-14 Dr. Abhishek Yadav, Asstt. Professor, Deptt. of Forensic
Medicine, Safdarjung Hospital, conducted postmortem on the dead body of
deceased Sujit and gave his report Ex. PW-14/A. He in post-mortem
report opined that cause of death was hemorrhagic shock due to ante
mortem injury to right common carotid artery produced by sharp edged
weapon. Injury no. 1, 2, and 3 were produced by sharp edged weapon.
Injury no. 1 was sufficient to cause death in ordinary course of nature. He
also deposed that dead body was wrapped in body bag, wearing yellow
shirt, jeans, blue underwear and chappal. Clothes were blood stained at
places, which were sealed and handed over to Investigating Officer with
sample seal. PW-14 Dr. Abhishek Yadav further deposed that on
12.11.09, he had received an application with sealed pulinda regarding
opinion for injury and weapon examination. PW-14 Dr. Abhishek Yadav
after going through the postmortem report and thoroughly examining the
weapon, was of the opinion that injury no, 1, 2, 3, and 5 were possible by
the submitted weapon.
19. PW-15 Ct. Suresh Kumar was posted as Constable in PS Vasant
Vihar, on that day, he deposed that he along with Ct. Surender, was on
patrolling duty on 10.11.09. PW-15 Ct. Suresh Kumar deposed that he
along with Ct. Surender reached Moti Lal Nehru Camp where ASI Surjeet
Singh and Ct. Manoj met them and they found that a dead body was lying at
the gate of samshan ghat. PW-15 Ct. Suresh Kumar further deposed that
they came to know the name of deceased as Sujit @ Kalu, brother of Sujit
met police officials at the spot and Investigating Officer recorded his
statement.
20. PW-16 HC Girdhar Singh, the photographer, took five photographs
of dead body as per the direction of Investigating Officer and proved same
as Ex. PW-16/1, 2 and 4 and negatives were proved as Ex. PW-16/5
(colly).
21. PW-17 Dr. Jashanpreet Singh, examined the deceased and deposed
that Sujit was brought dead. PW-17 Dr. Jashanpreet Singh prepared the
MLC Ex. PW-17/A and prepared the report Ex. PW-17/C.
22. PW-18 Inspector Kishore Kumar is the Investigating Officer of this
case. PW-18 Inspector Kishore Kumar deposed that on 10.11.09 he was
posted as Inspector in Police Station Vasant Vihar, investigation of this case
was marked to him after registration of case, PW-18 Inspector Kishore
Kumar reached the spot i.e, Moti Lal Nehru Camp. DDA Flats, Munirka,
ASI Surjeet Singh along with his staff met PW-18 there, complainant also
met PW-18 Inspector Kishore Kumar, ASI Surjeet Singh handed over
sealed pulindas to PW-18, PW-18 Inspector Kishore Kumar prepared site
plan Ex. PW-18/A on the pointing out of complainant Barjeet. PW-18
Inspector Kishore Kumar searched the appellant and at about 6 pm,
appellant Amit Kumar was arrested from near Aggarwal Sweet, Nelson
Mandela Road, at the time of arrest of appellant, complainant Barjeet and
Ct. Mahesh were with Investigating Officer and complainant identified the
appellant before his arrest, disclosure statement Ex. PW-18/C of appellant
was recorded and he disclosed that he could get the scooter recovered by
which he struck against deceased and the knife i.e, weapon of offence.
Appellant further disclosed that he was wearing same clothes which he was
wearing at the time of the incident. PW-18 Inspector Kishore Kumar further
deposed that thereafter, appellant took PW-18 and other persons to jhuggi
no. S99/34, Moti Lal Nehru Camp, Munirka and got recovered the scooter
no. DL3SK 1719, grey colour make Classic Bajaj which was parked outside
his jhuggi which was seized vide memo Ex. PW-3/I, there were some blood
stains on the front side of scooter, as well as on the dicky of the scooter.
Appellant got recovered the knife which was used as weapon of offence
from the roof of his jhuggi, the knife was blood stained, sketch of knife was
prepared and it was seized vide memo Ex. PW-3/H, wearing pant of
appellant i.e, blue colour jeans, wearing jacket of appellant which was
blood stained and wearing shoes of dark brown colour make Panasonic of
appellant were also sealed and seized by PW-18. PW-18 Inspector Kishore
Kumar further deposed that on 11.11.09, he moved an application Ex. PW-
18/D to CMO, Safdarjung Hospital for conducting postmortem on the dead
body of deceased, PW-18 Inspector Kishore Kumar conducted inquest
proceedings Ex. PW-18/E, the dead body was identified by complainant
vide his statement Ex. PW-3/N. After conducting post-mortem, the dead
body was handed over to complainant.
23. PW-18 Inspector Kishore Kumar also testified that on 11.11.09, he
had sent sealed pulinda containing the knife i.e. weapon of offence to
Autopsy Surgeon for subsequent opinion vide application Ex.PW-18/G,
PW18 Inspector Kishore Kumar received subsequent opinion from the
doctor Ex. PW-14/B. PW-18 Inspector Kishore Kumar further deposed that
on 19.11.09, he had sent scooter no. DL3SK 1719 make Bajaj Chetak to
FSL, Rohini for inspection and examination vide application Ex. PW-18/H.
PW-18 Inspector Kishore Kumar correctly identified all the parcels and
case properties in the Court viz. knife, jeans/pant of appellant, jacket of
appellant, pair of shoes of appellant, scooter,etc.
24. PW-19 Ms. Seema Nain who is a Sr. Scientific Officer - Biology,
FSL, Rohini, deposed that on 23.11.09, 11 sealed parcels were received in
the office of Director FSL, vide letter no. 2005/SHO/Vasant Vihar dt.
10.11.09 in connection with the present case, same were marked to PW-19
for biological and seriological examination. PW-19 Ms. Seema Nain,
Sr. Scientific Officer, further deposed that on examination, all the parcels
were tallied with the sample seals provided in the forwarding authority
letter and based on biological examination, blood was detected on Ex. 1, 2a,
2b, 2c, 2d, 3, 4, 5, 6, 7, 8, 10 and 11. It has also come in the deposition of
PW-19 Ms. Seema Nain that on seriological examination, blood detected on
Ex. 1, 2a, 2b, 2c, 2d, 3, 4, 5, 6, 7, 8, 10 and 11, is found to be of human in
origin and blood group on Ex. 1, 2a, 2b, 2c and 7 is of ―O‖ group. PW-19
Ms. Seema Nain, Sr. Scientific Officer, further deposed that blood group on
Ex. 3, 4, 5, 6, 8, 9, 10 and 11 could not be ascertained due to no reaction on
these exhibits. PW-19 Ms. Seema Nain, Sr. Scientific Officer, proved her
biological report as Ex.PW-19/A and seriological report as Ex. PW19/B.
PW-19 Ms. Seema Nain, Sr. Scientific Officer further deposed that she
could identify the signature of Mr. Naresh, Sr. Scientific Assistant, Biology,
FSL, Rohini, as she had seen him while he was writing and signing during
the course of her duty hours. She further deposed that Mr. Naresh Kumar
had examined scooter no. DL3SK 1719 at FSL premises on 19.11.09
between 2 pm to 2.45 pm and lifted blood stains from the left side dicky of
the scooter and from front side seat cover (sitting place of driver) and
proved the said report as Ex. PW-19/C.
25. Appellant in his defence examined one defence witness i.e, DW-1
Smt. Shakuntala Devi, who is the maternal grandmother of appellant she
deposed that she is working in Jawahar Lal Nehru University (JNU), she
had reached her office at about 8.30 am and remained in the office till 3 pm.
DW-1 Smt. Shakuntala Devi, further deposed that on 10.11.09, she had
gone to her aforesaid office at JNU at about 8.30 pm, she came to know that
appellant Amit was involved in a murder case. DW-1 Smt. Shakuntala Devi
further deposed that on that day from 8.30 am to 12 noon, Amit was with
her in the office, she had taken him to drop her, to her office as she was
unwell on that day and Amit could assist her in her office work. She further
deposed that she got procured two tablets from Amit on 10.11.09 from
Health Centre within JNU campus and resultantly her health improved and
Amit left at 12 noon. DW-1 Smt. Shakuntala Devi further deposed that she
was not aware as to where Amit went after he left her office. DW-1 Smt.
Shakuntala Devi further deposed that when she came to know about the
implication of Amit in this case, she went to the Police Station at 8-9 p.m.
to tell them the real truth but she was not allowed to enter the Police
Station, DW-1 Smt. Shakuntala Devi asked the police officials in the Police
Station to record her statement but police officials chased her out of the
Police Station. During cross examination, DW-1 Smt. Shakuntala Devi
deposed that she did not make any complaint to any senior police official
when she was not allowed to enter the Police Station on 10.11.09, as she is
an illiterate person. In response to Court's question as to whether Amit was
with her continuously from 8 to 12 noon on 10.11.09, DW-1
Smt.Shakuntala Devi first replied that on 10.11.09 he was with her from 8
am to 12 noon throughout. In the next line, she deposed that Amit went to
take medicines for her at 11 a.m. and he returned with the medicines within
10 minutes.
26. Learned counsel for the appellant submitted that the, recovery of the
knife is also doubtful. He has also submitted that it has not been proved
that the scooter or the rubber mat of the scooter was having any blood stain.
27. On the other hand learned Additional Public Prosecutor for the State
submitted that based on a careful reading of evidence of PW-3 Barjeet
(brother of deceased), PW-11 SI Randhir Singh (Retd.), PW-13 SI (Retd.),
PW-14 Dr. Abhishek Yadav (Astt. Professor, Department of Forensic
Medicine), PW-15 Ct. Suresh Kumar, PW-17 Dr. Jashanpreet Singh, PW-
18 Inspector Kishore Kumar, PW-19 Ms. Seema Nain (Sr. Scientific
Officer-Biology), clearly rebuts the contention's of the learned counsel for
the appellant that PW-3 was not an eye witness or that he was not present at
the time of the incident or that appellant was falsely implicated in the
present case, or that scooter No. No.DL3SK 1719 was planted or that the
trial court has passed the order of sentence in contrary of law.
28. We have carefully examined the testimony of PW-3 as mentioned
hereinabove.
29. We have also carefully examined the testimony of PW-6 and PW-7,
both deposed the fact about the panchayat which took place to effect the
divorce between Jyoti and deceased. These two witnesses also prove the
motive of the crime.
30. During the cross examination of PW-3 as well as PW-6 and PW-7,
there was nothing to discredit their testimonies. It has specifically come on
record that, it stands proved on record that PW-3 was an eye witness of the
incident. We have found no force in the arguments of the learned counsel
for the appellant that the presence of the complainant is highly doubtful
rather we find the evidence of PW-3 to be truthful and reliable. PW-3 has
given a complete account of the incident. There is nothing in the deposition
of the PW-3 which may discard his testimony in any manner. His evidence
is truthful.
31. Similarly PW-6 and PW-7 as discussed hereinabove, proved the
motive of the crime.
32. As far as the submission of learned counsel for the appellant with
regard to the recovery of scooter, we also do not find any substance therein.
33. Learned Additional Public Prosecutor for the State submitted that
PW-18 Inspector Kishore Kumar has deposed that at the time of the arrest
of the appellant, complainant Barjeet and Constable Mahesh were present
with the Investigating Officer and the complainant identified the appellant
before his arrest, disclosure statement Ex. PW-18/C of appellant was
recorded and he disclosed that he could get recovered the scooter by which
he struck against deceased and the knife i.e. weapon of offence recovered.
PW-18 further deposed that the appellant took PW-
18 and other persons to jhuggi No. S-99/34, Moti Lal Nehru Camp,
Munirka and got recovered the scooter No.DL3SK 1719, grey colour make
Classic Bajaj which was parked outside his jhuggi, was seized vide memo
Ex.PW-3/I. There were some blood stains on the front side of the scooter
as well as on the dicky of the scooter. It was also deposed that appellant
got recovered the knife which was used as weapon of offence from the roof
of his jhuggi, the knife was blood stained, sketch of knife was prepared and
it was seized vide memo Ex. PW-3/H, the appellant's clothes which he was
wearing i.e. blue colour jeans, jacket which was blood stained and shoes of
dark brown colour make Panasonic were also sealed and seized by PW-18.
PW-18 Inspector Kishore Kumar further deposed that on 11.11.09, he had
moved an application Ex. PW-18/D to CMO, Safdarjung Hospital to
conduct the post-mortem on the dead body of deceased and the dead body
was identified by the complainant vide Ex.PW-3/N. PW-18 Inspector
Kishore Kumar received subsequent opinion from the doctor as Ex. PW-
14/B. PW-18 further deposed that on 19.11.2009, he sent scooter
No.DL3SK1719 make Bajaj Chetak to FSL, Rohini for inspection and
examination vide application Ex.PW-18/H.
34. There is nothing in the cross examination of PW-18, which would
cast a shadow of doubt, he submitted that he had reached the spot on
10.11.2009 where the alleged offence was committed and he found some
public person at the spot, however, no public witness were made witnesses
at time of recovery of the scooter and knife, except for the complainant.
35. Learned Additional Public Prosecutor for the State submits that there
is nothing in the cross examination of PW-18 Inspector Kishore Kumar,
which may cast a shadow of doubt about the recovery of the scooter and
knife. He submitted that the deposition of PW-18 Inspector Kishore
Kumar has been fully supported and corroborated by the other witnesses
including complainant and constable Mahesh. We have also noticed that
PW-3 Barjeet has clearly deposed that he signed all the relevant documents
viz. seizure memo of blood stained earth control, seizure memo of blood
stained soil, seizure memo of sleeper of deceased, arrest memo of appellant,
seizure memo of knife, seizure memo of scooter and seizure memo of
shoes, jacket and jeans of appellant. There is scientific evidence which
cannot be ignored rebutting the contention of the learned counsel for the
appellant regarding lack of scientific investigation supporting the case of
the prosecution. The biological and seriological report i.e. PW-19/A and
PW-19/B proved that the blood gauze was found to be human in origin and
blood group was of ―O‖ Group which matched with the blood group of the
deceased. Blood stains lifted from the left side dicky of the scooter and
from front side seat cover had been proved and report was exhibited as Ex.
PW-19/C.
36. The scooter No. DL3SK1719, was recovered from the Jhuggi of the
appellant at his instance in pursuance of his disclosure statement, though
the prosecution in the evidence has failed to prove that the appellant is the
owner of the scooter No. DL3SK1719. However, the prosecution has
proved the case beyond any shadow of doubt that scooter No. DL3SK1719
was in possession of the appellant and was recovered from his jhuggi at his
instance in pursuance of the disclosure statement of the accused.
37. Per contra, the contention of the learned counsel for the appellant
was that there was no blood stain found from the scooter No. DL3SK1719
or on the rubber mat of the scooter. However, in this regard, it is found that
the blood stain were found and lifted from the dickey of the scooter No.
DL3SK1719 and also from the rubber mat of the scooter stood proved
through biological and seriological examination and according to it these
blood stain was found to be of human origin and moreover, the scooter No.
DL3SK1719 was found in the possession of the appellant. We would like
to mention here that the recovery of the scooter and knife pursuant to the
disclosure statement of the appellant were covered by Section 27 of the
Evidence Act 1872 which reads as under:-
―27. How much of information received from appellant may be
proved.--Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved.‖
The recovery of the scooter and knife in pursuance of the disclosure
statement of the appellant are admissible in evidence as per Section 27 of
the Indian Evidence Act 1872.
38. Learned counsel for the appellant submitted that there are
contradictions in the testimony of PW-3 and other witnesses but he has
failed to point any major contradiction. A careful analysis of the
testimonies of PW-3 establishes that while he along with deceased Sujeet
were plucking leaves for their goat, the appellant came to the spot and the
incident took place, the deceased did try to pacify the matter. Thus, the
presence of the appellant also stands established. Minor contradictions if
any, in the testimonies of witnesses which do not affect the core of the
prosecution case, should not be made a ground on which the evidence can
be rejected in its entirety. Our view is further fortified by the view rendered
by the Hon'ble Supreme Court in the case of State of U.P. v. Naresh
reported at (2011) 4 SCC 324, after considering a large number of its earlier
judgments held as under:
"30. In all criminal cases, normal discrepancies are bound
to occur in the depositions of witnesses due to normal errors
of observation, namely, errors of memory due to lapse of
time or due to mental disposition such as shock and horror
at the time of occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also make
material improvement while deposing in the court, such
evidence cannot be safe to rely upon. However, minor
contradictions, inconsistencies, embellishments or
improvements on trivial matters which do not affect the core
of the prosecution case, should not be made a ground on
which the evidence can be rejected in its entirety. The court
has to form its opinion about the credibility of the witness
and record a finding as to whether his deposition inspires
confidence.
"9.Exaggerations per se do not render the evidence
brittle. But it can be one of the factors to test credibility
of the prosecution version, when the entire evidence is
put in a crucible for being tested on the touchstone of
credibility."
Therefore, mere marginal variations in the statements
of a witness cannot be dubbed as improvements as the
same may be elaborations of the statement made by the
witness earlier. The omissions which amount to
contradictions in material particulars i.e. go to the root
of the case/materially affect the trial or core of the
prosecution's case, render the testimony of the witness
liable to be discredited."
(Emphasis Supplied)
39. We also do not find any force in the contention of the learned
counsel for the appellant that the public witness were not made witnesses.
Hence, no reliance can be placed upon the evidence adduced by the
prosecution. We would like to mention that generally the public does not
come forward to depose, even otherwise there were no public stated to be
present at the time of the incident at the spot, moreover, the non joining of
the public witness is not fatal to the prosecution in this case in view of the
evidence already led and discussed herein above.
40. The deposition of PW-3 Barjeet, PW-5 HC Rajbir similarly PW-6
Chandi Prasad, PW-7 Smt. Murti, PW-8 HC Vinod Kumar, PW-11 SI
Ranbir Singh (Retd.), PW-13 SI Surjit Singh (Retd.), PW-14 Dr. Abhishek
Yadav, Asstt. Professor and PW-15 Constable Suresh Kumar, PW-18
Inspector Kishore Kumar, PW-19 Ms. Seema Nain proved the imputation
of the crime to the appellant.
41. In the present case, a careful analysis of the testimony of PW-3
Barjeet who was an eye witness to the incident, proved the motive and the
offence of the appellant. The appellant while he was arrested was wearing
the same clothes i.e. blood stained pant, jacket, shoes, which he was
wearing at the time of commission of crime. Even the knife (weapon of
offence) and scooter got recovered at the instance of the appellant.
Forensic evidence proved the guilt of the appellant as the blood group of
the deceased Sujeet matched with the blood stain lifted from the dickey of
the scooter No. DL3SK1719 and also from the rubber mat of the scooter.
42. In the light of the above discussion, we hold that the prosecution has
established its case beyond any shadow of doubt against the appellant and
we are in agreement with the conclusion arrived at by the learned Trial
Court, consequently, the appeal is held to be devoid of any merit and is
accordingly dismissed.
43. Copy of this judgment be sent to the Jail Superintendant Central,
Tihar Jail, Delhi for updating the jail record.
44. Trial Court Record be sent back along with a copy of this judgement.
(CHANDER SHEKHAR)
JUDGE
(G. S. SISTANI)
JUDGE
JULY 31 st , 2017
b
