Pankaj v. The State (Govt. of NCT of Delhi)

1. These appeals assail the judgment dated 28th August, 2019 whereby the appellants have been convicted for the offence punishable under Section 302/34 IPC and awarded life imprisonment with fine of Rs.1,000/- each, and simple imprisonment for one month each in default of the payment of fine vide order on sentence dated 29th August, 2019. The third accused Amit @ Dabar as per the chargesheet dated 5th September, 2013, passed away in jail on 31st December, 2017 and therefore, the proceedings against him were abated vide order dated 16th April, 2018 during trial. The Incident:

2. As per the case of the prosecution the deceased (Kamal Bansal) was residing with his girlfriend in the house of appellant Ankush but was not paying him expenses, which led to a quarrel between Kamal Bansal and Ankush. Kamal Bansal alongwith his girlfriend left the house, without paying the expenses and shifted to his factory. This enraged Ankush and with a view to teach Kamal Bansal a lesson, he allegedly discussed the matter with the appellant Pankaj and Amit @ Dabar. On 29th May, 2013, Amit borrowed a motorcycle from his relative and then alongwith appellants Pankaj and Ankush went to the house of Kamal Bansal at about 10:30 p.m. On learning that he was in the factory, on 30th May, 2013 at about 1:30 a.m., both the appellants and Amit @ Dabar reached the factory on a motorcycle and asked Kamal Bansal to accompany them. As per the prosecution, Kamal Bansal was called outside by the appellant Pankaj and Amit @ Dabar and as soon as he came out, appellant Pankaj held him by the shoulder and demanded to why he did not pay appellant Ankush. Kamal Bansal was taken away from the factory to end of the gali where the appellants started thrashing him with fists and legs. When Kamal Bansal resisted, Amit @ Dabar held his hand to overpower him and appellant Pankaj hit Kamal Bansal’s head with a big piece of stone lying nearby. Kamal Bansal collapsed and then appellant Pankaj pulled him to the side of the road to avoid detection and all three namely Pankaj, Ankush and Amit @ Dabar fled on a motorcycle. However, one ASI Inderjeet and Constable Kuldeep were passing through that place in performance of their duty. They chased the motorcycle, saw the accused persons and also noted the number of the motorcycle. The injured was taken to the hospital by PCR van but succumbed to injuries and died on 5th June, 2013. Changes were framed against the appellants and Amit @ Dabar, the prosecution examined 24 witnesses, statement of the appellants under Section 313 Cr.P.C. was recorded and the appellants did not lead any evidence in defence. Submissions by the Appellants:

3. The appellants contended through the learned counsel appearing on their behalf, through the appeal and written submissions that conviction by the learned Trial Court was not sustainable since the prosecution had failed to prove the motive behind the alleged murder of the deceased by the appellants. Further, despite that police officials were deployed to collect exhibits and guard the scene of offence from 30th May, 2013, the recovery of the concrete stone was done from an open space at the place of occurrence on 8th June, 2013 allegedly at the instance of appellant Pankaj, which shows that the police officials had planted the recovery of the concrete stone. The appellants further contended that the prosecution’s version that the deceased was last seen with the assailants by his girlfriend Maneka who had come to the factory, was not examined by the prosecution and therefore, the last seen theory was unsupported. Even material witnesses viz. Constable Kuldeep who alongwith ASI Injerjeet allegedly saw the assailants on their bike / scooter and Gulran who made the PCR call were also not examined as prosecution witnesses.

4. The appellant also contended that as per the MLC death summary, the cause of death was ‘cardio pulmonary arrest’ showing no direct relation between the injury and the cause of death and no further opinion was taken whether the alleged head injury could be caused by the concrete stone. PW-22, the doctor who prepared the MLC, admitted that the injury can also be caused if a person falls backward on a hard surface. Further, as per arrest memo dated 7th June, 2013 appellant Pankaj was arrested in front of D-226, Gali No.3, Swarup Nagar, Delhi by Inspector Rajinder Dubey and the arrest memo was signed by the sister-in-law of the appellant. However, as per the cross examination of the police officers PW-23 and PW-25, who arrested the appellant, arrest was made at this address and information was later sent to the relatives of the appellant through a constable. Further, the disclosure statements of the appellants were not signed by them and therefore, not admissible in evidence.

5. The alternative submission put forth by appellants was that the deceased was not made to die on the spot itself but succumbed to injuries only after five days of the incident. Had the appellants been equipped with the intention to cause death, they would have been carrying a particular kind of weapon with them. A bare perusal of the body diagram (part of the post mortem report) shows that a fist blow may have been given on the eye which resulted in the deceased falling down and hitting himself on a concrete stone. Thus the appellants could not be convicted for an offence of culpable homicide amounting to murder. In the circumstance that the appellants have already undergone around 7 years 6 months of incarceration excluding remissions, this Court may accordingly assess the nature of the conviction. Submissions by the Prosecution:

6. The learned Additional Public Prosecutor on behalf of the State countered the contentions of the appellants and submitted that doctor who conducted the post mortem opined that injury no.1 was caused by a blunt force and even though a subsequent opinion was not taken regarding the possibility of concrete stone having been used as weapon, the Court could take notice that such injury could be caused by a heavy stone. Attention was invited to the testimony of PW-23 and PW-25 who testified that the concrete rock / stone was recovered at the instance of appellant Pankaj on which some blood was also seen. Reliance is also placed on testimony of PW-6 ASI Inderjeet where he identified appellant Ankush in TIP proceedings but identified appellant Pankaj and accused Amit from the online dossiers of criminals in the police station. Therefore, even if the TIP proceedings are discarded, his identification as a responsible police officer ought to be accounted for and since they had the full opportunity to see the assailants from a very close distance in the motorcycle /scooter chase. The Evidence:

7. PW-2 Bhagwat Singh, the complainant testified that he ran a store in village Ramgarh of timber supply and used to store some timber planks near the park in Gali No.8, Ramgarh and used to sleep near that park for security of his material. In the intervening night of 29th and 30th May, 2013, he heard a commotion and that someone was running and someone was screaming “ruk ja ruk ja ruk ja’. He heard a quarrel start and someone was saying, ‘mujhse galti ho gayi, mujhe maaf kar do’. Thereafter, PW-2 saw one red colour motorcycle coming from the side of Anand Maya Hospital and two persons riding the same. The person who was already quarrelling, dragged another person to the motorcycle and after dropping the injured at the spot, the said person also boarded the motorcycle and three of them left on the motorcycle towards Jahangir Puri main road. He further testified that he could not note down the registration number due to it being dark and he made a call to the police from his mobile number whereupon PCR officials reached the spot and he helped them in removing the injured to the hospital. In the meantime, as per PW-2, two police officials came on a scooter from the side of Sanjay Enclave and upon his pointing out about the motorcycle, the two police officials went in the direction of Jahangir Puri to chase the motorcycle.

8. PW-7 Nagender Rai was working at the factory of the deceased and on the night of the incident, as per his testimony, someone rung the bell of the factory and he went downstairs to open the main gate. The person standing outside entered the factory and went to the ground floor and he himself went to the bed at the first floor. After about an hour, the bell rung again and he saw from the first floor that three boys were standing at the main gate of the factory and they asked him to call the person on the ground floor. PW-7 responded that they can call that person on their own and that he saw the three boys and the employer of the ground floor standing outside the main gate of the factory and the motorcycle alongside. But he did not testify as to registration number or colour of the motorcycle.

9. PW-3, brother of the deceased testified that on 29th May, 2013 at about 10:30 p.m. three persons viz. the two appellants and Amit @ Dabar had come to his house (PW-3 identified all three accused in the court). They had come on a red colour motorcycle asking for his brother Kamal Bansal and PW-3 informed them that he would be at their factory in Ramgarh. He then received a call from the police on his mobile at about 1:45 p.m. – 2:00 p.m. that his brother had met with an accident and was admitted in hospital at Jahangir Puri. In his cross examination, he denied having told the police that his brother was living with his girlfriend Maneka at the house of appellant Ankush for the last 1½ months and was not paying expenses to appellant Ankush and therefore, there was a dispute between them. Upon being confronted with his statement recorded under Section 161 Cr.P.C., he denied the same and volunteered that he came to know this fact as disclosed by the accused to the police.

10. PW-6 ASI Inderjeet testified that on the night of the incident he was posted at Police Station Mahendra Park and was going with Constable Kuldeep (who has not been examined as a witness) to the police station on a scooter and were passing by Ramgarh Road. When they reached Gali no.8, PW-2, the complainant informed them that three boys had fled away on red motorcycle to the side of the main road after quarrelling and beating up one person. PW-6 made a call to the police and then went from the main road at a high speed to chase the assailants. PW-6 testified that he saw one motorcycle having registration no. DL8S AR 7632 with three people riding on it, and he chased the motorcycle and moved parallel to the motorcycle. He stated that he saw the three boys and due to heavy traffic he could not continue to chase. On 31st May, 2013, he was called by the SHO of Police Station Mahendra Park and showed online dossiers of criminals in the computer on the official website of Delhi Police. Out of these dossiers he identified two criminals viz. Amit @ Dabar and appellant Pankaj who were both residents of Jahangir Puri, as those who were riding the motorcycle. PW-6 identified these two accused in the court as well and also identified appellant Ankush in the court. He confirmed that on 29th June, 2013 he had participated in judicial TIP and correctly identified appellant Ankush. In his cross examination he stated that he met PW-2 at about 1:30 p.m. – 1:45 p.m. and stayed with him for about 2 minutes and had not seen the place where the incident had taken place. He further confirmed that he had not been called by the Investigating Officer for the judicial TIP of accused Amit @ Dabar. He denied that he had seen appellant Ankush in lockup of Police Station Mahendra Park since there was no lockup and they lodged the accused in Police Station Shalimar Bagh.

11. PW-8 Sandeep was the cousin of accused Amit @ Dabar who testified that Amit @ Dabar had borrowed his motorcycle which was registered in the name of his father, PW-5. He testified that the accused Amit @ Dabar had not returned the motorcycle to him but came to know from the police that the motorcycle was found in possession of the accused persons. PW-5 Rambir also confirmed that the motorcycle belonged to him.

12. PW-4 ASI Naresh Kumar was posted at PCR, North West Zone and he testified that on receipt of call on 30th May, 2013 he reached Anand Maya Hospital, Gali No.1, Ramgarh where one injured was lying and was bleeding from his head. They removed the injured to the BJRM hospital where he was admitted. PW-1 ASI Babu Khan testified that on 30th May, 2013 at about 4:30 a.m. Constable Laxman came to the Police Station Mahendra Park and gave him rukka for registration of FIR. He then registered the FIR No.145/2013.

13. PW-23 SI Hemant Kumar who was the first Investigating Officer, testified that on 30th May, 2013 upon receiving information about the incident, he reached the spot and met PW-2. The injured had already been shifted to the hospital. In the next few days he tried to trace the owner of the motorcycle and also showed the dossier of habitual criminals to PW-6 who identified Amit and appellant Pankaj from the dossier. PW-23 further testified that on 7th June, 2013 upon receipt of secret information they arrested Amit and appellant Pankaj from Block D, Swaroop Nagar and on disclosing the location of the third accused, appellant Ankush was arrested as well. As per PW-23, the three accused were taken to the place of incidence where appellant Pankaj recovered a big stone lying by the side of the park wall which (as per him) had been used to inflict injury on the deceased. He further confirmed that the place from where stone was recovered was a public place and was accessible to everyone. He testified that he also lifted the blood sample from the spot and the blood stained earth control which was duly sealed.

14. PW-25 ACP Rajender Dubey joined the investigation as the second Investigating Officer on 5th June, 2013 and corroborated the testimony of PW-23 including recovery of a red colour motorcycle and keys at the instance of appellant Ankush as well as block of concrete at instance of appellant Pankaj.

15. PW-22, the doctor who conducted the post mortem on the body of the deceased, opined that the death was due to due to cranial cerebral damage consequent upon blunt force trauma to the head. As per the post mortem report Ex. PW-22/A, there were two external injuries, the first being a lacerated wound 4cm x 0.[5] cm x 1 cm present on the right occipital region and the second being a bluish black contusion 1cm x 1 cm present around the right eye. PW-22 further testified that the death was due to injury no.1 which was sufficient to cause death in ordinary course of nature. In his cross examination, PW-22 stated that both the injuries no.1 and 2 could also be caused by a stick blow / stone blow or through impact of any vehicle or if a person fell backward on a hard surface. Analysis: