PRADEEP PASWAN Vs. STATE (GOVT OF NCT) DELHI

JUDGEMENT

(1.) PRADEEP Paswan, in this appeal, challenges his conviction under Section 302 of the Indian Penal Code, 1860, for having committed murder of his friend Ashok in the intervening night of 2nd and 3rd March, 2009 at Railway Line near Harijan Basti, Gali no.10, New Rohtak Road, Delhi. The impugned judgment convicting the appellant Pradeep Paswan is dated 23.08.2011 and the order on sentence imposing punishment of imprisonment for life and a fine of Rs.6,000/ - is dated 02.09.2011. In default of payment of fine, the appellant shall undergo simple imprisonment for three months.

(2.) LEARNED counsel for the appellant has submitted that this is a case of circumstantial evidence and not of direct evidence. The Trial Court has erred in relying upon the oral dying declaration made by the deceased Arun as the complainant, Jai Ram (PW -5), had turned hostile and disowned his earlier statement to the police (Ex. PW -5/A). In these circumstances and in view of such contradictions, the trial court should not have relied upon the testimony of Vicky (PW -6). Statement of Vicky (PW -6) under Section 161 Cr.P.C. was recorded on 06.03.2009, three days after the incident, and thus, his presence at the spot and his deposition regarding the oral dying declaration is unreliable and should be disbelieved. Evidence of last seen is weak and should be rejected. The statement of Suraj Singh (PW -7) under Section 161, Cr.P.C. (Ex. PW -7/E) was recorded on 16th March, 2009 and even as per the deposition of Pintu Tiwari (PW -1) and Kalim (PW -2), the deceased Ashok, the appellant Pradeep and one Chotu were residing together in a room at house no. 364/2, Gali No.8, Nehru Nagar, Anand Parvat, Delhi. The appellant as well as Chotu were missing. Chotu was not cited as a witness and has not deposed in the court. Thus, this would create a doubt for Chotu could well be the perpetrator. Recovery of the alleged knife and blood -stained clothes at the instance of the appellant is disputed. The recoveries, it is highlighted, were affected nearly 13 days after the occurrence and are for this and other reasons, unbelievable. The police during the period between 3rd March, 2009 to 16th March, 2009, had explored and scanned the room in question, and the articles could have been easily planted. Recovery of knife as alleged was from an open space. Further, as per the FSL report (Ex. PW -21/B, Ex. PW -21/C and Ex. PW -21/E), human blood was found on the knife and on the clothes as well, but the blood group could not be ascertained. PW -7 Suraj Singh, the landlord, has not supported the recovery of clothes, etc. Motive has not been established.

(3.) ON the question whether the deceased Ashok had met a homicidal death due to stab injuries in the intervening night of 2nd and 3rd March, 2009, we have unimpeachable evidence in the form of the MLC of deceased Ashok (Ex. PW -8/A) and the post mortem report (Ex. PW -4/A). The MLC (Ex. PW -8/A) records the time of arrival of the deceased in Hindu Rao Hospital, Delhi (H.R. Hospital, for short) as 12:45 am on 3rd March, 2009. Deceased Ashok was brought to the hospital by SI Ram Karan (PW -3). The MLC mentions that on local examination, the following external wounds were noticed: