CRL.A.--1244/2018. Case: NIKHIL SAXENA Vs. STATE (N.C.T OF DELHI). High Court of Delhi (India)
| Case Number | CRL.A.--1244/2018 |
| Citation | NA |
| Judgement Date | December 09, 2019 |
| Court | High Court of Delhi (India) |
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1244/2018
NIKHIL SAXENA ..... Appellant
Through Mr. Jai Khanduja, Advocate.
versus
STATE (N.C.T OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP for the with Insp. Anil Kumar and ASI Ajit Kumar, PS Adarsh Nagar.
WITH
+ CRL.A. 1249/2018
VISHAL SONKAR ..... Appellant
Through Mr. M.L. Yadav, Advocate.
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP for the State with Insp. Anil Kumar and ASI Ajit Kumar, PS Adarsh Nagar.
AND
+ CRL.A. 95/2019
PUNIT @ RAJU ..... Appellant
Through Mr. Sahil Talwar, Advocate with
Mr. Chander Kant and Mr. Nikhil Garg, Advocates.
versus
CRL. A. Nos.1244/2018, 1249/2018, 95/2019 Page 1 of 33
THE STATE GOVT. OF N.C.T OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP for the State with Insp. Anil Kumar and ASI Ajit Kumar, PS Adarsh Nagar.
% Reserved On : 02nd November, 2019
Date of Decision: 09th December, 2019
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
J U D G M E N T
MANMOHAN, J:
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Criminal Appeal Nos.1244/2018, 1249/2018 and 95/2019 have filed by appellants-convicts Nikhil Saxena, Vishal Sonkar as well as @ Raju respectively challenging the judgment dated 16th November,
and the order dated 19th November, 2018 passed by the Additional Judge/Pilot Court, North District, Rohini Courts, Delhi in Sessions Case No. 482/2018 arising out of FIR No.101/2018 under Sections 302/393/397/34 the Indian Penal Code (hereinafter referred to as ‘IPC’) and Sections Arms Act registered with Police Station Adarsh Nagar. The convicts have been convicted under Sections 302/393/34 IPC and to undergo rigorous imprisonment for life with fine of Rs. 10,000/-offence punishable under Section 302 read with Section 34 IPC as rigorous imprisonment for five years with fine of Rs. 5,000/- for punishable under Section 393 read with Section 34 IPC. The convict Punit @ Raju had also been convicted under Section 25 Arms and sentenced to rigorous imprisonment for one year with fine of Rs. 5,000/-
CRL. A. Nos.1244/2018, 1249/2018, 95/2019 Page 2 of 33
CASE OF THE PROSECUTION
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The case of prosecution in brief is that Naresh (deceased) working at Bharat Petroleum Petrol Pump and on 13th April, 2018, at
1.00 A.M, he had gone to bring tea from a nearby stall for his When he did not return for about twenty-twenty five minutes, two workers - Devender Pratap Mishra (PW-1) and Yashpal (PW-2) went to for him. After walking some distance, they saw Naresh lying on the and three people standing near him. After seeing Devender Pratap (PW-1) and Yashpal (PW-2), those three people fled on their bike,
was of red colour and having green colour on its engine while ‘bhago-bhago‘. Devender Pratap Mishra (PW-1) and Yashpal immediately rushed towards Naresh, and they saw that he was conscious and had an injury on his chest. He told them that the three boys had snatch his mobile phone and when he resisted, two boys held him while third stabbed him using a knife. Thereafter, Naresh was brought to the petrol pump, the police was informed and he was shifted to a hospital in a Van. Mr.Naresh succumbed to his injuries at AIIMS Trauma Centre same day at about 8 a.m.
FINDING OF THE TRIAL COURT
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The Trial Court convicted all the appellants-convicts under 302/393/34 IPC and appellant-convict Punit@Raju additionally Section 25 Arms Act. However, in the absence of evidence to establish who had used the weapon of offence, appellant-convict Punit @ Raju acquitted of the charge under Section 397 IPC. The conclusion of the Court is reproduced hereinbelow:-
CRL. A. Nos.1244/2018, 1249/2018, 95/2019 Page 3 of 33
―128. It has not been proved on record as to who out of these three accused persons stabbed Naresh and used the knife commission of offence. However, the dying declaration and other circumstances shows that all three were having common intention to rob Naresh and when Naresh resisted they stabbed him resulting into his death. The post mortem report Ex.PW23/P40 clearly shows that injury No.1 was sufficient cause death in ordinary course of nature. Keeping in view above discussion as the prosecution has failed to prove establish as to who used the weapon hence Punit is acquitted u/s 397 IPC. But keeping in view the dying declaration and other circumstances all the accused are convicted u/s 393 r/w 34 302 r/w 34 IPC. Accused Punit is also held guilty u/s 25 Arms Act for being found in possession of button actuated knife.‖
ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT SAXENA
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Mr. Jai Khanduja, learned counsel for the appellant-convict Saxena stated that the FIR in the present case had been registered basis of DD No. 6A and not as per the statements made by any eyewitnesses. He pointed out that SI Tej Singh (PW-24), who had the scene of crime i.e. Bharat petroleum outlet had deposed that he had found any eyewitness to the incident. Therefore, according to him, Devender Pratap Mishra (PW-1) and Yashpal (PW-2) had been introduced subsequent stage to solve a blind murder case.
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Learned counsel for the appellant-convict Nikhil Saxena that the petrol pump, where the deceased used to work, was covered CCTV cameras. He stated that though the scaled site plan (Ex.PW-6/P showed the presence of a CCTV pole, but the police had not seized CCTV digital video recorder. In support of his contention, he relied
CRL. A. Nos.1244/2018, 1249/2018, 95/2019 Page 4 of 33
testimonies of Devender Pratap Mishra (PW-1) and Yashpal wherein they both had stated that CCTV cameras were installed at the petrol pump. He submitted that the said CCTV footage was the ‘best which the prosecution had failed to produce. In support of his submission he relied upon the judgment in Tomaso Bruno and Anr. Vs. State of (2015) 7 SCC 178 , wherein the Supreme Court has held as under:-
―21. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW 1 Ram Singh, Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been the best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of the crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.‖
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He also pointed out that since there were multiple contradictions the testimonies of Ravi Kumar Jha (PW-14), SI Tej Singh (PW-24) Insp. Anil Kumar (PW-30) regarding the presence of CCTV cameras, same indicated that the police had intentionally not seized the footage.
CRL. A. Nos.1244/2018, 1249/2018, 95/2019 Page 5 of 33
ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT SONKAR
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Mr. M.L. Yadav, learned counsel for the appellant-convict Sonkar stated that no specific role had been attributed to Vishal Sonkar the alleged incident and nothing incriminating had been recovered from him which could connect him to the crime.
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He contended that the prosecution’s case was that the convicts had tried to snatch the mobile phone of the deceased admittedly, the said mobile phone had not been seized or produced in Court. He emphasised that in absence of the said mobile phone, the prosecution had failed to prove the motive of the crime.
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Learned counsel for the appellant-convict Vishal Sonkar per the prosecution’s story, Devender Pratap Mishra (PW-1) and (PW-2) had taken the deceased to the petrol pump and from there they accompanied him to the hospital in the PCR van. He pointed out that despite the aforesaid fact, the said witnesses had deposed that their clothes were not bloodstained.
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He emphasised that the deceased had not made any dying to any police officer who had accompanied him to the hospital in the van. He contended that neither Devender Pratap Mishra (PW-1) nor Yashpal (PW-2) had told any other police official about the alleged dying declaration made by the deceased. According to him, in view of the abovementioned facts, the testimonies of Devender Pratap Mishra (PW-1) and Yashpal
2) were not trustworthy and consequently, the presence of the convicts had not been proved and the alleged dying declaration was unreliable. In support of his contention, he relied upon the
CRL. A. Nos.1244/2018, 1249/2018, 95/2019 Page 6 of 33
judgments:-
A. Heikrujam Chaoba Singh vs. State of Manipur, (1999) 8 SCC wherein it has been held as under:-
―3. An oral dying declaration no doubt can form the basis of conviction, though the courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. We are, therefore, called upon to examine the evidence of PWs 2 and 5 to find out whether the courts below were justified in relying upon their testimony and in believing the statements alleged to have been made by the deceased while being carried to the hospital in ambulance and thereafter while he was an indoor patient in the hospital itself. So far as the statement in the ambulance is concerned, it was made to PW 2 who is the brother of the deceased. PW 2 while he was coming in a jeep towards the scene of...
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