RAJESH @ KALIA Vs. THE STATE

JUDGEMENT

(1.) RAJESH @ Kalia by this appeal has challenged his conviction under Section 302 of the Indian Penal Code, 1860(IPC) for murder of Head Constable S.K. Jha vide judgment dated 26th March, 2011, arising out of FIR No. 335/2007, Police Station Adarsh Nagar. By order on sentence dated 28th March, 2011, he has been sentenced to imprisonment for life with the direction that he must undergo actual sentence of 30 years and grant of remission will not be considered before the said period. Fine of Rs. 2,000/ - has also been imposed, and in default of payment of fine, he has to undergo simple imprisonment of one year. Counsel for the appellant has submitted that the impugned judgment does not take notice of the contradictions in the statement of the two eye witnesses, namely, Asha Devi (PW -6) and Sai Dass (PW -1). Our attention is drawn to the statement of Satinder Mishra (PW -2), brother -in -law of the deceased, and Monu Kumar Jha (PW -9), son of the deceased, to point out that there is difference in timings of the events and other related discrepancies, in their depositions. Delay in recording of Section 161 Cr. P.C. statements of both Asha Devi (PW6) and Sai Dass (PW1) is highlighted and it is submitted that the FIR was belatedly sent to the concerned Magistrate. It is further submitted that the medical records of Base Hospital, Delhi Cantt. contradict the oral depositions of Satinder Mishra (PW2) and Monu Kumar Jha (PW9) as well as that of Asha Devi (PW6) and Sai Dass (PW1). In view of this, the appellant's counsel argues, the prosecution case is shaky and does not meet the standard of proof of beyond doubt and prove that the appellant was the perpetrator of the alleged crime.

(2.) THE prosecution primarily relies on the testimonies of certain witnesses who it is stated happened to be present there at the time of occurrence. As per the prosecution version, Sai Dass (PW1), who was the owner of a Dhaba at Azadpur Sabzi Mandi, and Asha Devi (PW6), who worked at a STD booth, were eye witnesses to the occurrence in which the appellant Rajesh @ Kalia had given a 'danda' blow on the head of the deceased. PW -1 has deposed that he was running "Balwant ka Dhaba" at Azadpur Sabzi Mandi and, though 1st July, 2007 was a Sunday, he was at the Dhaba for cleaning. The deceased, HC S.K. Jha was sitting inside the STD booth, situated on the right side of the dhaba, to make a call. The appellant came and attacked him on the back of his head with a 'danda'. In order to save himself, S.K. Jha came running to PW -1's dhaba. This incident occurred at about 2.30 P.M. or 2.45 P.M. After 10 -15 minutes, the appellant again came back armed with a danda. He exhorted that S.K. Jha should come out and he would kill him; "usko bahar nikalo mein usko jaan se maarunga". PW -1 informed the police post. He saw that there was a missed call on the mobile phone of S.K. Jha which was lying at the dhaba. He called back and apprised Satinder (PW -2), brother -in -law of S.K. Jha, on the mobile of the deceased and asked him to come and take S.K. Jha to the hospital. Four family members of S.K. Jha came and took him in a TSR to the hospital. PW1 has affirmed that he had informed S.K. Jha's family regarding the appellant attacking SK Jha with a 'danda'. In the cross -examination, he has accepted that his statement was recorded on 4th July, 2007. He has also accepted that two servants were also present in the Dhaba, at the time of occurrence. He was confronted with his statement (Ex. PW1/DA) recorded under Section 161 Cr. P.C. wherein he had not mentioned that the appellant came back after 10 -15 minutes and exhorted that he would kill S.K. Jha. Lastly, he has deposed that family members of the deceased had arrived at the Dhaba at around 3.00/4.00 P.M. This portion of the statement, as noticed below, is incorrect and is not acceptable, keeping in view the statements made by Satinder Mishra (PW2) or Monu Kumar Jha (PW9). The possible reasons for and effect/consequence of this statement shall be dealt with subsequently.

(3.) SATINDER Mishra (PW2), brother -in -law of the deceased, was working as a Constable ITBP, but has stated that he was in Delhi on 1st July, 2007. He has deposed that S.K. Jha had gone on duty on 1st July, 2007 at 9 a.m. and PW -2 had spoken to him on the mobile phone at around 4.30 P.M. At that time, S.K. Jha told him that he would come back within an hour or two. Since S.K. Jha did not return, PW -2 made another call on his mobile phone. This time, he spoke to Sai Dass (PW -1), owner of the dhaba, who informed him about the quarrel between the deceased and another person. Thereafter, he along with his nephew Monu, reached the Dhaba at Azadpur Sabzi Mandi where he was informed that Rajesh @ Kalia, a vagabond, had hit his brother -in -law S.K. Jha with a 'danda', on his head. S.K. Jha was lying unconscious. PW -2 took him to the Army Base Hospital in a TSR. On the basis of his statement (Ex. PW2/A), FIR (Ex. PW -7/A) was registered. He has accepted that due to nervousness (in Ex. PW2/A) he had mentioned about iron rod, but in fact Rajesh had hit a 'danda' on the head of the deceased. After post mortem report (Ex. PW -3/A) dead body of S.K. Jha was handed over to him. In the cross -examination, he has deposed that he had reached the Dhaba at about 8.30 P.M., but has voluntarily stated that, at that time, owner of the dhaba was present.