Sanjay Kumar @ Anu v. State

JUDGMENT SUNITA GUPTA. J. For orders, see Crl.A. 1540/2013. FEBRUARY 24,2015 as (SUNITA GUPTA) JUDGE <<- * IN THE HIGH COURT OF DELHI AT NEW DELHI DateofDecision: 24*'' February,2015 + CRL.A. 1540/2013 & Crl.M.B. 10109/2014 KANHAIYA Appellant Through: Mr.K.Singhal and Mr.R.C.S.Bhadhauria, Advocates. versus STATE Respondent Through: Mr.O.P.Saxena, Additional Public Prosecutor for the State. • + CRL.A. 1617/2013 • DALIP @ BABBAN Appellant Through: Mr.Krishan Kumar with Ms.Sunita Arora, Advs. versus STATE NCT OF DELHI .....Respondent Through: Mr.O.P.Saxena, Additional Public Prosecutor for the State. + CRL.A. 1071/2014 & Crl.M.B.10226/2014 SANJAY KUMAR @ ANU Appellant Through: Mr.Chetan Lokur, Adv. versus STATE Respondent Through: Mr.O.P.Saxena, Additional Public Prosecutor for the State. % CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA Crl.A.1540.2013,1617.2013 &1071.2014 JUDGMENT ; SUNITA GUPTA, J.

¶1Vide this common judgment, I shall dispose off three, criminal appeals bearing Crl.A.Nos. Crl.A. 1540/2013, Crl.A.1617/2013 and 1071/14, filed by Kanhaiya, Dalip @ Babban and Sanjay Kumar @ Anu respectively, challenging the common judgment dated 21.10.2013 and order on sentence dated 31.0.2013 whereby they had been convicted u/s 304 IPG and sentenced to undergo R.I for 5 years and also directed to pay fine of Rs.10,000/- each in Sessions Case No.12/2013 arising out of FIR No.181/2010 u/s 302/34 IPG, P.S. Naraina.

¶2Prosecution case succinctly stated is as under:- On 26.12.2010, Aslam, son of Mohsir had gone to the rehri of PW6 Mamtawhereshe usedto sell eggs. The accusedpersonsajso came to the rehri. Aslam was hearing songs on his mobile which was objected by the accused persons on which quarrel took place. Kanhaiya caught hold of Aslam while Dalip gave him fist blows and Sanjay hit him with a danda on his head. On alarm being raised by Kesh Mohd. all the three accused escaped along with danda. Aslam fell down. He was bleeding profusely from his nose, ear and mouth. Kesh Mohd removed him initially to Behl hospitalfi'om where he was directedto be takento DDU hospital,as such he was removed to DDU hospital. PWll Asrar Ahmad informed PGR fi"om his mobile on which DD.No.29A, Ex. PW13/A was recorded. On receipt of informationPW16 ASI Vijay Pal along with PW8 Gt.Mahipal reachedthe spot where neitherthe injurednor the assailantswere found. Blood was found on the ground in front of shop no.Z-238. Thereafteron receivingDD.No.31Acontaininginformationthat injuredAslam had been admittedinDDU hospital,he alongwith Gt. PanlcajreachedDDU hospital where Aslam was found admittedin injuredconditionalong with one of Crl.A.1540.2013,1617.2013&1071.2014 ^of his relatives, namely Kesh Mohd. He recorded his statement Ex.PW3/A and got the case registered u/s 308 IPG. He returned back to the spot and lifted the blood sample, earth control and blood stained earth. Complainant Kesh Mohd. handed over his blood stained pant which was also seized. At the instance of the complainant, rough site plan was prepared. On 27.12.2010, information was received about death of Aslam in the hospital and, therefore, the investigation was taken over by SHO himself On 28.12.2010, post mortem was got conducted on the dead body of the deceased.

¶3It is further the case of prosecution that on 30.12.2012, on the basis of secret information, accused Dalip and Sanjay were arrested. Accused Sanjay made a disclosure statement Ex. PW 15/D and got the danda recovered. Accused Kanhaiya was arrested on 31.12.2010. During the course of investigation, the weapon of offence was produced before the Doctor and he gave his subsequent opinion that the injuries on the person of deceased were possible by the weapon of offence shown to him. After completing investigation, charge sheet was submitted against the accused persons for offence u/s 302/34 IPG. Gharge for offence u/s 302/34 IPG was framed against the accused, to which they pleaded not guilty and claimed trial.

¶4In order to substantiate its case, prosecution in all examined 20 witnesses. The case of accused persons was one of denial simplicitor. They pleadedtheir innocence. After scrutinisingthe evidenceadducedby theprosecution,thelearnedTrialGourtconvictedtheappellantsu/s 304/34 IPG and sentenced as mentioned hereinabove.

¶5Feeling dissatisfied and aggrieved, separate appeals have been preferred by the convicts.

¶6Assailingthe findingsofthe learnedTrialGourt,it was submittedby Mr. KrishanKumar, learnedcounselfor appellantDilip@Babbanthat the Crl.A.1540.2013,1617.2013&1071.2014 Page3of 14 r r prosecution case hinges upon the testimony of PW3 Kesh Mohd.and PW6 Mamta. However, there are material contradictions in the testimony of the witnesses. Moreover, there was serious dispute regarding the identity of the accused. However, no Test Identification Parade of any of the accused was got conducted. The Trial Court also observed that even regarding the identity of the accused, two views were forthcoming. Having observed so, the Trial Court fell in error in convicting the accused persons, as such accused were entitled to benefit of doubt. According to prosecution, accused Sanjay got recovered the weapon of offence. However, recovery of weapon of offence has not been believed by the learned Trial Court.

¶7Sh. K.K.Singhal, learned counsel representing the appellant Kanhaiya submitted that the factum of homicidal death of Aslam is not disputed by them. However, the crucial question is who is the perpetrator of the crime. Learned Trial Court did not believe the recovery of weapon of offence at the instance of accused Sanjay. Even PW3 was not believed to be an eye witness of the incident and PW6 was not reliable, yet the conviction was based on a suggestion given by counsel for the accused. But that itself cannot form the basis of conviction. FIR was lodged after three hours of the incident and in fact it was ante timed as copy of the same was sent to the Metropolitan Magistrate after seven days. Alternatively, it was submitted that the appellant was 21 years of age at the time of incident; his antecedents are clean; he remained in jail for a period of two years, as such in case his conviction is upheld, then he may be released on the period already undergone.

¶8Mr. Chetan Lokur, Advocate representing accused Sanjay submitted thatprosecutioncase quathis accusedwas twofold:

(i) Recoveryofweaponofoffenceathis instancewhichhas rightlybeen disbelieved by the learned Trial Court.

(ii) Eye witnessaccountof the incident; CrI.A.1540.2013,1617.2013&1071.2014 Page4of14 // PW3 has not been behevedto be eye witnesswhereasPW6 is not a rehable witness. No convictioncouldhave been based on the basis ofany suggestion givenby counselfor the accusedas the prosecutionhadto standon its own legs, as such it was submitted that the impugned judgment deserves to be set aside.

¶9As againstthis, learnedAdditionalPublic Prosecutorfor the State supportedthe reasoninggivenby the learnedTrialCourtfor convictingthe appellantsand submittedthat no interferenceis warrantedand as such the appealsare liabletobedismissed.

¶10I have closelyexaminedthe evidenceas also the originalrecordsof the matter and am convincedthat the prosecutionhas not been able to establishthe guiltofappellantsbeyondreasonabledoubtand learnedTrial Court erred in convicting the accused persons due to the following reasons There can be no dispute that deceasedAslam had died homicidal death. The questionis whetherthe prosecutionhas been able to connect the appellantswiththe crime. To substantiateits case,prosecutionhas examinedPW3 KeshMohd. and PW6 Mamtaallegedtobe eye witnessestothe incident.

¶11PW3 Kesh Mohd is the cousinbrotherofdeceasedAslam. FIRwas registeredon the basisofstatementEx.PW3/Agivenby thiswitnessto the policeofficialwhereinhe statedthat Aslam used to residewith him. On the fatefulday, at about9p.m, his wifetoldhim thatsomerationhadto be brought from the market, as such he made a telephone call to Aslam enquiringabouthis whereabouts.Aslaminformedhim thathe was present at the egg rehri and was gettingomlettprepared.He told him that he was comingover there. As soon as he came out of his jhuggi,he saw many CrI.A. 1540.2013,1617.2013&1071.2014 )- T-, personsrunningand were sayingthat some quarrelwas takingplace. He reachedthe spotandsaw accusedSanjaygivingdandablowon the;headof his brotherAslam. Kanhaiyacaughthold ofhim while Dalip was giving fist blows. When he raised alarm, they ran away,along with the danda. Aslam fell dovra. He was bleeding profusely from his nose, ears and mouth. He immediatelyremovedhim to Behlhospitalin the car ofsome neighbourwherehe was advisedto take him to somebig hospital,as such he took him to DDU hospital and got;him adniittedthp.^ ^^^ :informedby the egg sellerMamtathat Asfc was:Hstening;:son|son mobile phone which was objected by Sanjay, Dilip and; Kanhaiya. Thereafterall four startedabusingeach other and gave merciless'beatings to Aslam. All the threeboys were knownto him from before. He prayed for actionagainstthem. However,whenhe appearedin the witnessbox in xrossexamination,he deposedthatnoneofthe accusedwerektiownfo ; befbrethe date ofincident. However,he went on statingthathejhadse^;; thembeforethe incidentas theyusedto residein his neighbourhood.The claimofthis witnessas beingan eye witnessto the incidenthas rightlynot beenbelievedby the learnedTrialCourtby observingas under;- ; "28. The claim of PW3.thai he had witnessed the incident, is doubtful consideringthefact thatin his cross-examinationthe saidwitnesshcis admitted • thathe didnot know anyofthe accusedbeforethe dateofincident,buthadseen ' . them, as they reside in his neighbourhood. From the same, it is clearthat the complainant(PW3)was notawareofthe namesofthe accusedpersons,priorto the incident. Once he was not knowingthe namesofthe accusedpersonsprior. to the incident,then how the complainant(PW3) namedthe accusedpersonsin his complaintEx. PW3/A(on the basisofwhichFIRwas registered)regarding^ incident,givento the.police,is beyondcomprehension. Theprosecutionhas not given any explanationfor the same. It is also not the case ofthe prosecution that the complainantcame to know about the names ofthe accusedpersons, afterascertainingthe samefrom the personspresentat the ^Potorfromegg^ seller {P1V6) This when seen coupledwith thefact that it was suggestedo behalfof,L learnedAMUionalPPfor State 'o^Pm-Mam^t^ witness(who was sellingeggs on eart). when,she thedeceasedhadreachedthespot, lateron. Thus,a /pi,,, saidmaterialprosecutionwitness,on behalfofthe Statethatthe brother(" ) - ofthe deceasedwas not presentat the spot, at the time ofmcM and had reachedlateron and, thus, had not witnessedthe incident,whichis contraryto Crl.A.1540:2013,1617.2013&1071.2014 the case of the prosecution. Also, in his cross-examination by learned counsel for accused persons, the said witness had deposed that the brother of the deceased reached the spot about 5 minutes after the quarrel between the deceased and the accused persons. From the same also, it stands established that the brother of the deceased i.e. PW3 (complainant) reached the spot after • the incident and had -not witnessed the incident and it seems that he has exaggerated in his testimony regarding having witnessed the incident and appears to be an interested witness, as he is admittedly a relative of the deceased and, hence, might be interested in conviction of the accused persons. However, from his testimony and the testimony of other material prosecution witnesses, including the doctor, who prepared the MLC of injured Aslam (since deceased) and his (PW3) blood stained pant which was stained with the blood of deceased, it is clear that he reached spot immediately after the incident and took the injured to the hospital. " . 12, The other witness of the prosecution is PW6 Mamta in front of whose rehri the incident allegedly took place. She is the solitary eye . ^ witnessofthe incident. It is asettledpropositionoflaw ofevidencethatit is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Laliu Manjhi and Anr. v. State of Jharkhand

(2003) 2 see 401, Supreme Court had classified the oral testimony of the witnesses into three categories; a. Wholly reliable; b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable.

¶12In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been CrI.A.1540.2013,1617.2013&1071.2014 Page 7of14 statedbytheprosecution.Whenthe prosecutionreliesuponthe testimony of a sole eye-witness,then such evidencehas•to be wholly reliableand trustworthy.Presence of such witness at the occurrenceshould not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses,it may not be safe to make such a statementas a foundationof the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the cases of Joseph v. State of Kerala (2003) 1 SCC 465; Tika Ram v. State of Madhya Pradesh (2007) 15 SCC 760 and Govmdaraju@ Govmda v. State (2012) 4 SCC 722.

13.. Reverting to the case in hand, this witness has deposed that three personsby the name of Sanjay,Dilip andKanhaiyahad come to take eggs from her cart. Deceased also came there and handed over his mobile phone to the three persons for listening songs. Thereafter, he started quarrellingwith the aforesaid three persons. Initially deceased started beatingthem andthereafterthosethreepersonsgave beatings to him. She could not say whether the deceased was beaten by fists or by any weapon. V She could not identifythe accusedpersons and could not say whether any of those personswere presentin the Court at the time of her deposition. As such, after seeking permission of the Court, this witness was cross . v., examined by learned AdditionalPublic Prosecutorfor the State and in cross examination she admitted that the deceased was listening songs on his mobile phone and three persons,namely Sanjay,Dalip and Kanhaiya asked him to switchoffthe phone. When the deceasedrefusedto switch off the mobile phone, the three persons started abusing him and gave beatings to him. However she denied the suggestion that accused Kanhaiyacaught hold ofthe deceasedand startedbeatinghim with fists and kicks. She also denied that accused Sanjay hit the deceasedon his Crl.A.1540.2013,1617.2013&1071.2014 ^ C • head by apiece of wood lying nearby. She admittedthat brotherof the deceasedreachedthe spot later on. She denied that two days after the incident,policehad broughtSanjayand Dalipto the spot and theypointed out the place of incident to the police. Thereafter, she changed her statementby stating thatthe accusedwerethethreepersonswho had come to her rehri on the date of incidentand had quarrelledwith the deceased. However, she denied that the three accused persons had beaten the deceased or deceaseddied on account ofbeatings given by the accused persons. She ftirtheradmittedthat when the deceasedgave beatings to Kanhaiya,Kanhaiyaleftthe spotimmediately.

¶14Aperusal of testimonyof this witness goes to show that the very genesisofthe incidentwhichresultedin the unfortunatedeathofAslamis doubtftil. At one stageshe statedthatthe deceasedgave his mobilephone to three persons who had come to her rehri for listening songs and thereafterhe startedabusingthem and also gave them beatings. In turn, the threepersonsgave him beatings. However,at anotherstageshe stated that deceasedwas listeningsongs on his mobilephonewhichwas objected by the threepersonsand they askedhim to switchoffthe mobilephone,to which the deceased reftised. Thereafter the three persons gave him beatings.

¶15Not only that, her testimonyregardingthe identityof the accused personsis not consistentas at one stage she couldnot identifyany ofthe accused by stating that she did not know them. However, in cross examinationby learnedAPP for the-State,althoughshe admittedthat the accused persons came to her rehri on the date of incident and had quarrelledwiththe deceasedbut she deniedthatthe threeaccusedpersons gave beatingsto the deceasedas aresultofwhichthe deceaseddied. She also deniedthe role assignedto eachofthe accusedby the prosecution.In Crl;A.1540.2013,1617.2013&1071.2014 . view ofthe shaky testimonyof the sole eye witnessto the incident, identityoftheaceusedbeing assailantoftheerimebeeomesdoubto^^

¶16Moreover:although the complainant in EXPW3/Ato the policestatedthatthe three personswere known,to him fromearlier,however,it is pertinentto notethatevenin thisstatement,he didnotgivetheparentageorthe addressofthe accusedpersonsto pinpomt ^ theiridentity. In hisdepositionbeforethe Court,he deposedthat:accused y were notknown to hun fram earlier. However,;he:wentm •theyusedtoresideinthenei^bourhood.Inthisscenario,i^^^^ : the accused was imperative. Evenif it;is assurnedthat mview of the;. . earlierstatementgivenbythe complainantthataccusedweretaownto • " from before,therefore,identificationofaccusedby this : : necessary. Even then identificationof the 'accused by' .mandatory:Admittedlyno TestIdentificationParadeofanyof^ ' was arrangedby the investigatingofficerofthecase. ; 17. PWMiHC SamundarSingh, PW 15 SI: Sandeep and PW 16 ASI - VijayPal have deposedthat afterthe arrestofaccusedSaryayand Dalip, theytookthepolicepartyto thespot,pointedouttheplaceofm^^^ atthattimePW6Mamtaidentifiedalltheaccused.However,PW6Mamta . deniedthat-two days after the incident,police had brought^ - Dalipto the spot andthey^ ^^^^ ~ . - police. Thatbeingso, theiridentificationby this witness not arise. In any case,Kanhaiyawas arrestedlateron and of prosecutionthat he was identifiedby PW6 Mamta. In this scenario whennoneofthe accusedwereknownto PW6Mamtafrombefbre^itw^^ ; incumbent: upon the investigatmg officer to have arran^d IdentificationParadeoftheaccusedpersons. Theomissiononthepartof the prosecution to arrange such identification proceedings and identificationofthe accusedfor the firsttime in the Court • , . • . : Page'lOof14 • Crl.A.1540.2013,1617.2013&1071.2014 r )1 the prosecutioncase. In fact PW3 Kesh Mohd. is not an eye witnessof the incidentand testimonyof PW6 at best is confinedto the fact that the accused persons had come to her rehri and had quarrelled with the deceased. But she denied that the accused gave any beatings to the deceased which resulted in his death. Under the circumstances,the evidence comingon recorddoes not prove beyondreasonabledoubtthat theaccusedweretheperpetratorsofthe crime.

¶18The other piece of evidence rehed upon by the prosecution is recoveryofweaponofoffenceatthe instanceofaccusedSanjay. Different versions,are forthcoming in this regard. PW3 Kesh Mohd. m his examination-inChief deposedthat the danda was seized from the spot. However,he could not identifythe danda when shown to him. In cross examination,he statedthatthe dandawas takenawayby the accused.

¶19PW12 HC Amar Singh, PW14 HC Samundar Singh, PW15 SI Sandeep,PW16 ASI VijayPal and PW20 InspectorRakeshare the police officialswho have deposedthatpursuantto the disclosure statementmade by accusedSanjay,dandawas recovered. However,differentversionsare forthcomingin their testimonyregardingthe. place from where recovery allegedlytookplace.Accordingto PW12HC Amar Singh,accusedSanjay got recoveredthe rod from nearthe placeof incident. However,he could not identifythe rod which was allegedlyrecoveredat the instanceofthis accused. Accordingto PW14 HC SamundarSingh, accused Sanjay got recovereddanda from a gali of YBlock, Loha Mandi, Narainawhereas accordingto PW15 SI Sandeep,recoverywas effectedfrom Nanak Pura railwaystationwheredandawas lyingon the ground. However,according •to PW16 ASI Vijay Pal and PW20 Inspector Rakesh, recovery was effectedat the instanceof Sanjayfrom near railwaytrackYBlock,Loha Mandi, Naraina. Under the circumstances, different versions are forthcomingregardingthe place from where the weapon of offence is CrI.A. 1540.2013,1617.2013&1071.2014 r alleged to have been recovered. Admittedly there is no independent witnessto the recovery. No bloodstainswas found on the woodendanda. Moreover,the recoverywas not believedrightlyby the learnedTrialCourt as the same was effected from an open place.

¶20Learned counsel for the appellant relied upon Mani v. State of TamilNadu in Crl.A.443/2006decidedon 08.01.2008wherethe recovery was effectedfrom the open ground,thoughunderthe bush aftermore than -' 10 days ofthe incident,as such,it was observedthatsuchdiscoverywould be withoutany credenceand the discoveryis aweakkind ofevidenceand cannot be wholly relied upon and conviction in such a serious matter carmot be based upon such a recovery. Once the discoveryfails, there . wouldbe literallynothingwhichwouldsupportthe prosecutioncase.

¶21Substantiallysimilarview was taken in Heeralalv. State Govt. of NCT in Crl.A.No.979/2012and it was further observedthat despite the opinion of the post mortem doctor that the injury to the deceased was possible by the said iron rod, the same cannot be held discriminately against the accused in view of the recovery being from an open and 'V accessibleplace. ^

¶22The learnedTrial Courtneitherbelievedthe recoveryofweaponof offenceat the instanceofaccusedSanjaynor the identificationofaccused by PW6 Mamta. It was furtherobservedthattherewas also discrepancyas to what was the genesis of the incidentand whetherthe accusedpersons werethe aggressors.However,fromasuggestiongivenby learnedcounsel for accused that it was the deceased who had beaten up the accused Kanhaiya,the learnedTrial Court observedthat from this suggestion,the identityofall the three accusedpersonsas the one who had committedthe offence in questionstands established. While so observing,the learned Trial Court fell in erroras the cardinalprincipleof criminaljurisprudence is thatthe onus is squarelyupon the prosecutionto prove its case beyond Crl.A.1540.2013,1617.2013&1071.2014 reasonabledoubt. Amere suggestiongivenby the accusedpersonduring crossexaminationofthe witnessis not sufficientto arriveat aconclusion that it werethe accusedpersonswho werethe assailants.

¶23The present case is not based on circumstantialevidence but is basedon eyewitnessaccountofthe incident. The solitaryeyewitnesswas PW6 Mamtaandthiswitnesshas been changingher standtime and again. Initiallyshe did not identifyany ofthe accused. In crossexaminationby learned APP, althoughshe identifiedthe accused persons with whom a quarrelhad taken place with the deceasedbut even at that time she was categoricalin stating that the accused persons did not administerany beatingsto the deceasedand the deceaseddid not die due to any beatngs • givenby them.Thiswitnessnowherespeaksofgivingany dandablowby any ofthe accusedontheheadofthe deceased.

¶24Under the circumstances,the prosecutioncase remained mthe realm of suspicion. However,it is settledlaw that suspicion,howsoever, grave, camtot take the placeofproof The burdenofproofis alwayson the prosecutionto establish its case beyond reasonable doubt and an C ' accused is presumedto be innocenttill his guiltis establishedto the hilt. • In view of the fact that PW3 Kesh Mohd. is not an eye witness of the incident,testimonyof PW6 Mamta is not wholly reliable, recovery of weapon of offence at the instance of accused Sanjay is not proved, therefore,merely on the basis of suggestiongivenby learnedcounselfor accused during the cross examination,the accused could not have been convictedfor the offenceallegedagainstthem.

¶25Thatbeingso, the impugnedjudgmentand orderon sentencecannot be sustainedand is accordinglyset aside. All the appealsare allowed. The appellantsare acquittedofthe offenceallegedagainstthem. Theybe set at liberty,ifnotwantedin any othercase. Pendingapplications,ifany, stand disposedoff. Crl.A.1540.2013,1617.2013&1071.2014 qAP TrialCourtrecordbe sentbackalongwiththe copyofthejudgment. Copy of the judgmentbe also sent to SuperintendentJail for information and necessary action. (SUNITAGUPTA) JUDGE FEBRUARY 24,2015 as Papp 14 of 14 Crl.A.1540.2013,1617.2013 &1071.2014

* IN THE HIGH COURT OF DELHI AT NEW DELHI DateofDecision: 24*'' February, 2015 + CRL.A. 1071/2014 & CrI.M.B.10226/2014 SANJAY KUMAR @ ANU Appellant Through: Mr.Chetan Lokur, Adv. versus STATE Respondent Through: Mr.O.P.Saxena, Additional Public Prosecutor for the State. % CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA