CRL.A.--158/2015. Case: RAHUL @ BHURI Vs. STATE, NCT OF DELHI. High Court of Delhi (India)
| Case Number | CRL.A.--158/2015 |
| Citation | NA |
| Judgement Date | September 12, 2017 |
| Court | High Court of Delhi (India) |
% Judgment Reserved on: 2nd August, 2017
Judgment Pronounced on: 12th September, + CRL.A. 1702/2014
RAJ KUMAR @ LALA ..... Appellant Through : Mr. Sheikh Israr Ahmad, Advocate versus
STATE NCT OF DELHI ..... Respondent Through : Ms. Radhika Kolluru, APP
+ CRL.A. 158/2015
RAHUL @ BHURI ..... Appellant
Through : Mr. Jitendra Sethi, Mr.
Tewari, Mr. Hemant Gulati and Anshika Sethi, Advocates versus
STATE, NCT OF DELHI ..... Respondent Through : Ms. Radhika Kolluru, APP
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J.
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Both the appeals arising out of a common judgment have argued together and are being disposed of by a common judgment.
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Present appeals have been instituted under Section 374 of the of Criminal Procedure, 1973 („Cr.P.C.‟) against the judgment
10.11.2014 and order on sentence dated 13.11.2014 passed by Additional Sessions Judge („Trial Court‟) in Sessions Case 08/ arising from FIR 17/2013 Police Station Ambedkar Nagar, by of which both the appellants have been convicted under
and sentenced to undergo simple imprisonment for life with a Rs.20,000/- each and in default of payment of fine, to undergo simple imprisonment for one year. The appellant Kumar @ Lala was also convicted under Section 27 of Arms 1959 and was sentenced to undergo simple imprisonment period of three years with a fine of Rs.10,000/- and in default payment of fine, to further undergo simple imprisonment for a period of six months. Both the sentences awarded to the appellant Kumar @ Lala were ordered to run concurrently.
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The present case pertains to the murder of one Rohit („deceased‟) the hands of the appellants and one Asif (declared juvenile with law „JCL‟). Before the rival submissions of the learned of the appellants can be considered, we deem it appropriate to the case of the prosecution, as noticed by the Trial Court, which under:
“1. DD No.51-A regarding stabbing of a person near the bus stop of Bus Route No. 521, Sector 5, Ambedkar Nagar, was received in Police Station Ambedkar Nagar on 14.01.2013 and the said DD was marked to ASI Mam Chand for necessary action. After receiving the DD No.51- A, ASI Mam Chand along with Ct. Ram Avtar reached near bus stand 521, the road dividing C and D Block, Dakshin Puri, but could not find any public witness there. Police officials came to know that injured has been taken to hospital in PCR Van. In the meanwhile, staff of the beat also reached the spot. ASI Mam Chand left beat HC Ratan Lal and Ct. Vineet at the spot and proceeded to Trauma Centre, AIIMS with HC Ram Avtar and in the hospital collected the MLC of Rohit Gupta s/o Sh. Rakesh Kumar Gupta, The injured was declared dead in the hospital by the concerned Doctor and no public witness was found at the hospital. ASI Mam Chand came at the spot and found lot of blood there. No public witness was found at the spot. Hence, an FIR u/s. 302 IPC, PS Ambedkar Nagar was
SHO PS Ambedkar Nagar. The spot was got inspected by the crime team, photographs were taken. Investigating Officer prepared the site plan of the spot. Investigating Officer collected the chappals of the deceased, earth control and blood samples from the spot and got them sealed in sealed pullanda and deposited the same in the police station. Thereafter Himanshu, brother of the deceased, came to the spot and Investigating Officer recorded the statement Himanshu. Himanshu in his statement u/s 161 Cr.PC stated that he is running a dhaba at Bus Stand Route No. 521, Dakshin Puri and his brother Rohit used to come to his dhaba occasionally to assist him. On 14.01.2013, at about 11 pm when Himanshu and deceased Rohit were in the process of closing the dhaba, accused Raj Kumar @ Lala, Rahul @ Bhuri and Asif, who were known to Himanshu came to the dhaba and demanded food from Rohit. Rohit told them that dhaba has been closed and food is not available. On hearing this accused Raj Kumar and his associates started abusing Rohit. Himanshu intervened and rescued his brother and accused Raj Kumar @ Lala, Rahul @ Bhuri and Asif left the dhaba. After sometime, Himanshu and Rohit closed the dhaba and started going to their house. Himanshu was 20-25 steps ahead of Rohit, when all of a sudden Rohit cried and when Himanshu turned back, he found that Raj Kumar, Rahul and Asif were fighting with Rohit. Himanshu run [sic: ran] save his brother and found that accused Rahul @ Bhuri and Asif have caught hold of Rohit and Raj Kumar @ Lala attacked Rohit on his thigh with a knife a number of times. When Himanshu cried for help, accused Raj Kumar @ lala and Rahul @ Bhuri alongwith Asif (juvenile in-conflict with law) ran away. Someone called 100 number. Himanshu was terribly scared. After sometime, PCR Van came to the spot and took Rohit to Trauma Centre. Himanshu reached Trauma Centre after sometime and found that Rohit was unable to speak and Rohit was declared dead by the Doctor. Himanshu was highly perturbed and stayed outside the hospital for one and half hour. After sometime, when Himanshu became normal, he went to his house and from the house he went to the spot. Himanshu specifically stated in his statement u/s 161 Cr.PC that accused Raj Kumar, Rahul a
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Thereafter, Investigating Officer searched for the accused but the accused could not be found. The dead body was got identified by relatives. On 17.01.2013, Investigating Officer received a wireless message that three boys have been apprehended in case FIR No.18/13 and one of those boys juvenile and those three boys have disclosed their involvement in the present case. On receiving this information, Investigating Officer along with his staff reached big park at H-Block, Dakshin Puri and Inspector Investigation presented the three boys to the Investigating Officer and told him that these three boys have admitted their involvement in the present case. The names of those boys came to be known as Asif, Raj Kumar and Rahul. Asif was found to be juvenile and separate proceedings were conducted with respect to Asif as per the directions of the Juvenile Justice Board. Accused Rahul @ Bhuri and Raj Kumar @ Lala were interrogated by the Investigating Officer and they were arrested in the present case. Accused Raj Kumar got recovered a knife used in the commission of the crime from the H-Block park, Dakshin Puri. The knife was seized and kept in a pullanda. The place of incident was identified by both the accused persons.”
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After completion of the investigation chargesheet was filed both the appellants. Charge under Section 302 read with Section of IPC was framed against both the appellants. A charge Section 27 of Arms Act was also framed against the appellant Kumar. To bring home the guilt of the appellants, prosecution examined 23 witnesses in all. The statement of the appellant was recorded under Section 313 Cr.P.C wherein he p innocence and stated that he was picked up from his home falsely implicated in the present case. In his statement under Section 313 Cr.P.C., the appellant Raj Kumar stated that on 15.01.2013, had gone to Karkardooma Court Complex to attend the proceedings of his case; his father was forced to call him to the Police Station and
Station where he was falsely implicated. The appellants three witnesses in their defence.
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The Trial Court found that the testimonies of PW-2 Himanshu PW-1 Sharwan Kumar coupled with the medical evidence if appreciated, without taking into consideration the defects in investigation, it could safely be concluded that accused/appellants had committed the murder of the deceased convicted the appellants as noticed in paragraph 2 aforegoing.
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Mr. Jitender Sethi, learned counsel appearing for the appellant submits that the judgment of the Trial Court is based on surmises and conjectures. The Trial Court has failed to take into consideration that PW-2 Himanshu was in fact not an eyewitness as he was present at the time of the crime, which is evident from the fact PW-2 did not accompany his injured brother from the place of incident to the hospital. Moreover, his name does not find mention in the MLC prepared by the doctor and further from the testimony of PW-7 ASI Mam Chand, it has emerged that there was no eyewitness at the spot. Elaborating his arguments further, Mr. Sethi that the statement of PW-2 Himanshu who is real brother of deceased cannot be believed as having been present at the place the incident he would have tried to save his brother or at least made a call to police officials or his own family members. It is, contended that the testimony of PW-2 is unreliable and cannot trusted. Reliance is placed on the judgments in the cases of (Govt. Of NCT of Delhi) v. Naresh & Anr, 2012 (2) JCC (paragraph 8) and Balraj Singh v. The State of Punjab, 1976 LJ 1471 (P&H) (paragraphs 13 and 20).
contended that this witness has deposed that he received a 11:50 PM on the intervening night of 14-15.01.2013 and he came at the spot and found no eyewitness either at the spot the hospital. Reliance was placed on the rukka to show even at stage no person was named and PW-2 appeared only around AM. i.e. after three and half hours of the incident.
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Mr. Sethi contends that a phone call was made to the Police by Sharwan Kumar from his mobile phone No.9716078703 who running a flower shop near the place of the incident. This has also testified that he had informed Himanshu (brother of deceased) about the incident. PW-1 also deposed that arrived at the spot within 5-7 minutes of the telephone call. It is contended that had Himanshu been at the spot there was no occasion for PW-1 Sharwan Kumar to inform PW-2 Himanshu.
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The attention of this Court has been drawn to the PCR form, wherein the name of Himanshu also does not find mention though it is that at 01:00 AM family members were present at the hospital how the deceased was stabbed was not known. This is in contravention to the testimony of PW-2 that after the incident went home to get his family members while...
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