Robin Tamang @ Jo-Jo v. State

$~ *IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 882/2016 % Date of decision : 10th January, 2017 ROBIN TAMANG @ JO-JO ..... Appellant Through:

Mr. Chetan Lokur and Nitish Chaudhary, Advs.

versus STATE ..... Respondent Through:

Ms. Aashaa Tiwari, APP for the State with Insp. Ramesh Chand from PS Burari

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE ANU MALHOTRA JUDGMENT (Oral) GITA MITTAL, J.

1.

By way of the instant appeal, the appellant assails his conviction by the judgment dated 26th July, 2016 for commission of an offence under Section 302 of the Indian Penal Code, 1860 ('IPC' hereafter) with which he was charged in the case being SC No. 27842/16 (Old No.86/15) arising out of FIR No.421/13 by Police Station Burari.

2.

Mr. Chetan Lokur, learned counsel appearing on behalf of Crl. A. 882/2016 Page 1 of 20

the appellant has primarily assailed the impugned judgment on the ground that the conviction of the appellant rests on the solitary eye witness account of one Bikas Gurang who was examined as PW1. Learned counsel would contend that the testimony of this witness is unreliable and shaky and, therefore, the conviction based thereon cannot be sustained.

3.

It is further submitted that the testimony suffers from improvements in material particulars as well as embellishments which render the eye witness account given by him as unreliable. It is submitted that given the nature of his testimony in court, the learned trial judge should have insisted upon corroboration of the evidence tendered by this witness.

4.

The investigation into the case was set into motion based upon telephonic information received by the Police Station Burari in the night intervening 14/15th October, 2013 at 0025 hours from the Police Control Room to the effect that one person had been stabbed in Gali No. 1, A-2 Block, West Sant Nagar and that appropriate action be taken thereon. This information was recorded by the duty officer HC Ram Phool (PW6) as DD No.10B (Exh.PW6/A) and copy thereof was handed over to SI Devender (PW18).

5.

On receipt of the copy of DD no.10B (Exh.PW6/A), SI Devender (PW18) accompanied by Ct. Hanuman proceeded to the spot in front of House No.8, Gali No.1, A-2 Block, West Sant Nagar, Burari and found blood lying scattered in the gali as well as a bloodstained green shirt which was produced by Bikas Gurang Crl. A. 882/2016 Page 2 of 20

(PW1) and blue coloured jeans. On enquiry, it was learnt from the public persons present that one Neeraj had been stabbed by Robin Tamang in a quarrel over a girl named Hira and a sim card and that friends of the victim had rushed him to the Hindu Rao Hospital. In the meantime, Inspector Sher Singh (PW20), SHO of Police Station Burari also reached the spot while SI Devender (PW18) also received information that the victim Neeraj as declared having been brought dead in the Hindu Rao Hospital. 6.

In the meantime, the eye witness Bikas Gurang (PW1), who had taken the deceased Neeraj to the Hospital returned to the spot and SI Devender (PW18) scribed his statement which is Exh.PW1/A. This statement as noted by the learned trial judge in para 2 of the impugned judgment reads as follows : "2.

As per statement of said complainant Bikas Gurang, he is preparing and selling Momos and about two days ago his sister in law (Bhabhi), namely, Pinki had called him on phone to her house No.8, Gali No.1, A-2 Block, West Sant Nagar, Burari for doing the work of selling Momos as the work load had increased due to the festival of Dusshera and he was residing and working with the said Pinki since then, said Neeraj, who hailed from his village was also residing with the said Pinki and was doing the same work on 14.10.2013 at about 11.30 pm, he along with Ram returned back to the house of said Pinki after selling Momos at Jharoda, Delhi and paid the amount of the sale to the said Pinki and he came out and started wearing his shoes Crl. A. 882/2016 Page 3 of 20

outside the door of the house and at that time said Neeraj was talking to someone inside the house on phone and in the meantime, one Robin, who also hailed from his village, and related to said Pinki being her brother in law, came in the gali and started calling said Neeraj loudly.

One Amin Kheshtri @ Abhishek, who also came with said Robin went inside the house of said Pinki and that after repeated calls given by the said Robin, Neeraj came out of the house and Robin started quarrelling with him over some SIM card and one girl Heera and suddenly gave knife blows at the chest and hand of said Neeraj and when he (the complainant) shouted, said Pinki, Ram and Amin Kheshtri @ Abhishek also came out of the house and on looking at all the said persons, said Robin started rushing from there with the knife and that he (the complainant) chased said Robin upto some distance but came back to help the said Neeraj, who was blood soaked and was lying inconscious in the gali and with the help of said Pinki and other persons, he and said Ram removed the said Neeraj in an auto to Hindu Rao Hospital, where doctor had declared him as dead."

7.

SI Devender (PW18) made his endorsement on the statement Exh.PW18/A and sent the rukka for getting the case registered through Ct. Hanuman Yadav (PW16) as the statement disclosed commission of an offence of murder.

Crl. A. 882/2016 Page 4 of 20

8.

At the police station, HC Ram Phool (PW6) registered FIR No.421/13 (Exh.PW6/C) through the computer operator vide DD No.4A and also made an endorsement on the original rukka (Exh.PW6/D). The computer generated copy of the FIR was sent to Inspector Sher Singh (PW20) for further investigation through Ct. Hanuman Yadav (PW16) vide DD no.5A (Exh.PW6/F). HC Ram Phool (PW6) also issued and proved the requisite certificate under Section 65B of the Evidence Act with regard to the computer generated FIR Exh.PW6/E.

9.

The copy of the FIR was delivered to Inspector Sher Singh at the spot by Ct. Hanuman Yadav (PW20).

10.

Copy of the FIR No. 421/13 was also sent on 15th October, 2013 at 0340 hours through a special messenger Ct. Dharampal on motorcycle to the concerned Magistrate as well as senior officers which information was logged as DD no.5A on 15th October, 2013 itself (Exh.PW6/F) in compliance with the requirements of subsection 2 of Section 157 of the CrPC. 11.

During the course of investigation by Inspector Sher Singh (PW20), the police vide seizure memo Exh.PW1/B seized bloodstained earth control at the spot; bloodstained tiles; one green colour bloodstained shirt and a blue coloured jeans. These articles were converted into parcels and sealed with the seal of 'SS'. The sample seal was handed over to SI Devender (PW18) after use. 12.

On 15th October, 2013, Inspector Sher Singh also seized an XTEL mobile phone vide seizure memo Exh.PW18/B bearing model no. X909 and IMEI no. 359987045359507. On 16th Crl. A. 882/2016 Page 5 of 20

October, 2013, Inspector Sher Singh (PW20) vide seizure memo Exh.PW1/C seized one Samsung mobile from Bikas Gurang (PW1) which belonged to the deceased Neeraj. The sealed articles were duly deposited with HC Devender (PW11) who was working as the MHC(M), case property in the police station Burari at the relevant time who made the entry no.2298/13 in Register No.19 in the original malkhana register no.19 (Exh.PW11/A). 13.

The mobile phone which was seized vide seizure memo Exh.PW1/C on 16th October, 2013 was also deposited in the malkhana vide entry no.2301/13 (Exh.PW11/B).

14.

Inspector Sher Singh (PW20) deposited two sealed parcels alongwith the sample seal of the articles seized from the Hospital which were deposited in the malkhana vide entry at serial no.2308 in register no.19 (Exh.PW11/C).

15.

The investigating officer Inspector Sher Singh (PW20) prepared a rough site plan Exh.PW20/A on the pointing out of the complainant Bikas Gurang.

16.

The crime spot was also got inspected by the mobile crime team which included Ct. Irshad Ahmed (PW10) and SI Pradeep Kumar (PW14). Ct. Irshad Ahmed had taken 12 photographs of the spot which were proved on record as Exh.PW10/A-1 to Exh.PW10/A-12. Their corresponding negatives were proved on record as Exh.PW10/B-1 to Exh.PW10/B-12.

17.

SI Pradeep Kumar (PW14) has corroborated the testimony of SI Devender Dahiya (PW18) with regard to the position which was subsisting at the spot with regard to the bloodstains on the walls of Crl. A. 882/2016 Page 6 of 20

the houses; bloodstains in front of house no. 18 and the bloodstained green coloured shirt. This witness also proved the report of the crime team on record as Exh.PW14/A and had instructed Ct. Irshad Ahmed (PW10) to take the photographs. 18.

The appellant could be arrested in the case only on 19th October, 2013 by HC Chanderpal (PW13) when a search was effected for him in Sector 18, Gurgaon, Haryana and he was brought to the Police Station Burari. The custody of the appellant was handed over to Inspector Sher Singh who interrogated the appellant and arrested him vide arrest memo Exh.PW13/A while his personal search was effected vide Exh.PW13/B. 19.

It appears that during interrogation, the appellant made a disclosure statement Exh.PW13/C. Pursuant to the disclosure statement, the bloodstained clothes of accused which he was wearing at the time of crime which included a multicoloured check shirt bearing the label "CR-Y 100% Cotton Made in India" and jeans bearing the label "Fashion Jeans" which had been recently washed and were hanging for drying on the first floor of his house were got recovered from the house near Amit Theatre and seized vide memo Exh.PW13/D.

20.

The appellant was subjected to medical examination in Aruna Asaf Ali Hospital on 20th October, 2013. The appellant thereafter led the police party, which included HC Chanderpal and Insp. Sher Singh, to Gurgaon.

21.

So far as deceased Neeraj is concerned, SI Devender Dahiya (PW18) visited Hindu Rao Hospital on the night of 15th October, Crl. A. 882/2016 Page 7 of 20

2013. We find that the prosecution has proved the MLC No. 8046/13 of the deceased Neeraj Pradhan, on record as Exh.PW9/A. The MLC notes that the person was brought to the hospital at 12.50 a.m. in an unconscious condition with "alleged h/o physical assault" in which the doctor had declared the patient dead at 12.52 am. The MLC further notes that the person was brought to the hospital at 12.50 a.m. in an unconscious condition when his pupils were not reactive to light and his body was sent to the mortuary. 22.

A request was made by Inspector Sher Singh vide his letter dated 17th October, 2013 (Exh.PW20/B) to the Head of the Department of Forensic Medicine, Hindu Rao Hospital for performing the autopsy on the body of deceased Neeraj and to get an opinion with regard to cause of death. Pursuant thereto, an autopsy was conducted on the body of Neeraj Pradhan by Dr. M.K. Panigrahi of the Department of Forensic Medicine, Hindu Rao Hospital on 17th October, 2013 at 12.30 p.m. The report of the post mortem examination (Exh.PW17/A) has noted the following injuries on the body of the deceased:

"5.

External Injuries (1) A stab wound of size 2.8 cm x 1 cm x chest cavity deep, obliquely placed on the anterior aspect of the left side of the chest wall. The lower end of the wound is acute angled and is laterally placed and the upper end is rounded and medially placed. The wound is placed just below the medial end of the Lt. clavicle about 3 cm away from the midline from the sterna notch, Crl. A. 882/2016 Page 8 of 20

'14' cm above the Lt. Nipple, 12 cm medial to the Lt. anterior axillary fold and 133 cm above the heel of left foot. The margins of the wound are clean cut.

(2) A stab wound of size 2 cm x 1 cm x muscle deep, obliquely placed on the Lateral Aspect of the lower part of the Lt. Arm. The lower end of the wound of acute angled and the upper end appears rounded. The wound is placed about 5 cm above the lateral apicandyle of the humerous bone and about 21 cm below the tip of the Lt. shoulder. The margins of the wound are clean cut. The depth of the wound is about 2 cm.

(3) A stab wound of size 2 cm x 1 cm x muscle deep, Horizontally placed on the back of the lower part of the Lt. Arm just above the Lt. elbow joint. The wound is placed about 2 cm above the (illegible) process of ulna bone and 25 cm below the top of the Lt. shoulder. The margins of the wound are clear cut. The depth of the wound measures 2 cm.

(4) Incised wound of size 6 cm x 1.5 cm x muscle deep obliquely placed on the anterior medial aspect of the upper part of the Lt.

forearm just below the Lt. elbow joint. The margins of the wound are clear cut. The muscles and tissues and blood vessels underneath are clean cut. The wound is placed about 5 cm below the medial epicandyle of the Crl. A. 882/2016 Page 9 of 20

Lt. humerous bone and 18 cm above the stylid process of the lower end of the ulna.

(5) Incised wound of size 1 cm long, superficial and is placed horizontally as the palmar aspect of the Lt. hand 1.5 cm below the matacarpophalangeal joint of the Lt. index finger. Margins of the wound are clear cut.

(6) Incised wound of size 1 cm long, superficial in nature is placed horizontally on the palmar aspect of the base of of the distal phalanx of the Lt. middle finger."

23.

The post-mortem doctor has noted the track of the external injury no.1 which was as follows:

"Track of Ext. Injury No.- I :- A track has been established from the external injury No.(1) which pierces through the subertaneous tissues underneath and cut the medial end of cartiligenous part of the left clavicle 0.5 cm lateral to the Lt. Sterno clavicular joint, the intercostal muscles below and partially cut the superior border of the cartiligenous part of the 2nd rib (Lt) about 1.5 cm lateral to the sterno costal joint, which measures about 3 cm long. Then it completely cut the Lt. Subclavian artery and other vessels nearby and underneath the chest wall and then pierces through the cervical parietal pleural (Lt.) on its anterior aspect and later into the Lt. pleural cavity and ends in the Lt. side. A superior Crl. A. 882/2016 Page 10 of 20

medi......after piercing. The media...pleura. The track measures about '5' cm long. The directions of the track is downwards, before backwards and or from lateral to medial. The Lt. pleural cavity is filled with about 12 litre of blood mixed with clots."

24.

As per the opinion of Dr. M.K. Panigrahi, the cause of death of the deceased was due to "haemorrhage and shock consequent to the injuries. All the injuries mentioned above" were opined to be "are ante-mortem in nature".

25.

The doctor had also opined the time since death at the time of the post mortem examination as being about 60 hours to 61 hours approximately.

26.

On 7th January, 2014, Inspector Sher Singh (PW20) directed HC Ram Phool (PW8), the then MHC(M) at the Police Station Burari to hand over the sealed exhibits and sample seals to Ct. Krishan Kumar vide RC No. 1/21/14 in sealed condition for depositing the same at the Forensic Science Laboratory, Rohini, Delhi. These articles were duly deposited at the Laboratory against the receipt dated 7th January, 2014 (Exh.PW11/G). 27.

The Forensic Science Laboratory, Rohini duly conducted the forensic examination on the articles received in nine parcels in sealed condition and gave a report dated 30th May, 2014 (Exh.PW20/D). We extract hereunder the description of the articles in nine parcels forwarded by the Police Station Burari in sealed condition which were examined by the Laboratory: Crl. A. 882/2016 Page 11 of 20

DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1'

: One sealed paper envelope sealed with teh seal of "FM HRH" containing exhibit '1a', '1b', '1c', '1d' stated to be of deceased.

Exhibit '1a'

: One dirty knicker having dark brown stains at places.

Exhibit '1b'

: One dirty T-shirt having dark brown stains at places.

Exhibit '1c' : One dirty baniyan having dark brown stains at places.

Exhibit '1d'

: One dirty underwear.

Parcel '2'

: One sealed paper envelope sealed with the seal of "FM HRH" containing exhibit '2' stated to be of deceased.

Exhibit 2 : Blood stained gauzed cloth piece described as "Blood sample".

Parcel '3'

: One sealed plastic dibbi sealed with the seal of "SS" containing exhibits '3' stated to be recovered from place of occurrence.

Exhibit 3 : Lumps of earth along with loose earth described as "Blood stained earth".

Parcel '4'

: One sealed plastic dibbi sealed with the seal of "SS" containing exhibits '4' stated to be recovered from place of occurrence.

Crl. A. 882/2016 Page 12 of 20

Exhibit 4 : Lumps of earth along with loose earth described as "Earth control".

Parcel '5'

: One sealed plastic dibbi sealed with the seal of "SS" containing exhibits '5' stated to be recovered from place of occurrence.

Exhibit 5 : Two pieces of stone having dark brown stain described as "Blood stained tile".

Parcel '6'

: One sealed plastic dibbi sealed with the seal of "SS" containing exhibits '6' stated to be recovered from place of occurrence.

Exhibit '6'

: One piece of stone described as "Control tile". Parcel '7'

: One sealed cloth parcel sealed with the seal of "SS" containing exhibits '7' stated to be recovered from place of occurrence.

Exhibit 7 : One dirty shirt having dark brown stains at places Parcel '8'

: One sealed cloth parcel sealed with the seal of "SS" containing exhibits '8' stated to be recovered from place of occurrence Exhibit 8 : One dirty jeans pant having darker stains Parcel '9'

: One sealed cloth parcel sealed with the seal of "SS" containing exhibits '9a', '9b' stated to be of accused Exhibit 9a : One dirty jeans pant Exhibit 9b : One dirty shirt 28.

A comparison of the seizure memos and the above exhibits Crl. A. 882/2016 Page 13 of 20

marks given by the Laboratory would show that Exhibit 1a, 1b and 1c are the clothes of the deceased which were seized by the doctor who conducted the post mortem of the deceased. The blood sample of the deceased collected on the gauze, cloth piece was marked Exhibit 2 by the Forensic Science Laboratory. Exhibits 3, 4 and 5 were the bloodstained samples of earth and stone which were seized by the investigating officer while conducting the investigation at the spot on 15th October, 2013. Exhibits 7 and 8 were the bloodstained shirt and the jeans which had been worn by the complainant at the time of the incident and that he had rushed the deceased to Hindu Rao Hospital. Exhibits 9a and 9b were the jeans and shirt which were recovered at the instance of the accused pursuant to disclosure statement on 19th October, 2013. 29.

After examination the Forensic Science Laboratory submitted the following report so far as the presence of blood on the seized articles is concerned :

"Results of analysis 1.

Blood was detected on exhibit '1a', '1b', '1c', '1d', '2', '3', '5', '7', '8' & '9a'

2.

Blood could not be detected on exhibit '4', '6', '9b' 3.

Report of serological analysis in original is attached herewith 30.

The articles on which blood was found were thereafter Crl. A. 882/2016 Page 14 of 20

subjected to examination using serological techniques. The result of this examination as reported by the Laboratory in the report dated 30th May, 2014 is extracted in extenso below: Exhibits Species of Origin ABO Grouping/Remarks '1a' knicker Human Group 'A'

'1b' T-shirt Human Group 'A'

'1c' Baniyan Human Group 'A'

'1d' Underwear Human No reaction 2 Bloodstained gauze Human Group 'A'

3 bloodstained earth Human No reaction 5 bloodstained tile Human Group 'A'

7 shirt Human Group 'A'

8 pant Human Group 'A'

9a Jeans pant Human Inconclusive Crl. A. 882/2016 Page 15 of 20

31.

On completion of the investigation, the prosecution filed a charge sheet under Section 173 CrPC before the court of the learned Magistrate. The Magistrate committed the case for trial to the Court of Sessions in accordance with law and the matter was placed before the learned Additional Sessions Judge for further proceedings.

32.

After consideration of the entirety of the matter placed by the police on record, by an order dated 1st April, 2014, the learned Additional Sessions Judge found a prima facie case for commission of an offence under Section 302 of the IPC against the appellant and charged him accordingly. The appellant pleaded not guilty and claimed trial.

33.

During trial, the prosecution examined 20 witnesses in support of its case. An opportunity was given to the appellant to explain the incriminating circumstances against him under Section 313 of the CrPC. The appellant led no evidence in his defence. 34.

The matter was considered at length by the learned Additional Sessions Judge, thereafter by the impugned judgment dated 26th July, 2016 as above, the appellant was found guilty of commission of the offence with which he was charged and by an order on sentence of even date sentenced him to life imprisonment and fine of `25,000/- and in default of payment of fine, he was further directed to undergo simple imprisonment for a period of two years. The benefit of Section 428 CrPC stood allowed to the appellant.

Aggrieved thereby, the present appeal has been filed. Crl. A. 882/2016 Page 16 of 20

35.

We have heard Mr. Chetan Lokur, learned amicus curiae as well as Ms. Aashaa Tiwari, learned APP for the State who have carefully taken us through the record of the case. 36.

As noted hereinabove, the primary ground of challenge rests on the plea that the solitary testimony of Bikas Gurang (PW1) ought not to be accepted and that the conviction for such a serious offence cannot be premised on the solitary evidence of this witness. 37.

We have noted above the statement of Bikas Gurang which formed the basis of the registration of the FIR No. 421/2013. This statement was recorded barely a couple of hours after the infliction of the fatal injuries upon the deceased Neeraj Pradhan by multiple blows of a knife. We find that Bikas Gurang has given a graphic account of the manner in which the incident occurred and has described the presence of the appellant at the spot; his having called deceased Neeraj and inflicted the multiple injuries with the knife which was in his possession. In Exh.PW1/A itself, Bikas Gurang has described the manner in which the appellant had attempted to flee and how he had unsuccessfully tried to chase him. 38.

Bikas Gurang (PW1) has appeared and has been examined as a witness in court on 6th August, 2014. In the witness box, Bikas Gurang (PW1) has given a testimony which is identical to his narration of the events as disclosed in Exh.PW1/A. 39.

While under cross examination, Bikas Gurang (PW1), has mentioned that apart from Ram, he was accompanied by two persons of the locality when they had removed the deceased to the hospital. It is submitted by Mr. Lokur that this is a contradiction Crl. A. 882/2016 Page 17 of 20

with the evidence on record.

40.

Mr. Chetan Lokur, learned amicus curiae for the appellant has pointed out that Bikas Gurang has also made a reference to one Bhopal as having chased the appellant while he was fleeing with the knife after the incident. An objection is taken that Bhopal was not produced in the witness box.

41.

At best, the reference to two additional persons having accompanied the witness to the hospital and one having also chased the appellant while he was fleeing are the best embellishments which do not make any difference to the substantive testimony of the witness so far as manner in which the events unfolded is concerned. In our view, these two additions in the statement in court do not impact the clear and graphic account given by the witness with regard to the manner in which the appellant had come to the spot, called out to the deceased, then entered into a quarrel with him and inflicted the fatal injuries on his person. 42.

In the present case, Bikas Gurung (PW1) is a reliable witness who has given a credible account of the events of the fateful day. We find that the incident has occurred in the early hours of 15th October, 2013. There is nothing on record which would establish that any other eye witness was present at the time when the incident had occurred.

43.

The report of the Forensic Science Laboratory was per se admissible in evidence under Section 293 of the CrPC and has been produced in evidence by the investigating officer Inspector Sher Singh (PW20). The forensic evidence establishes that the deceased Crl. A. 882/2016 Page 18 of 20

was having blood group A which was identified on not only his clothes but also on the clothes of the complainant corroborating his testimony that he had helped the deceased Neeraj Pradhan and rushed him to the hospital.

44.

So far as the clothes of the accused are concerned, the Laboratory has identified human blood on the jeans which had been worn by the accused. The presence of human blood is sufficient corroboration of the eye witness account in the case with regard to the involvement of the appellant in the commission of the offence.

45.

The oral testimony of PW1 is corroborated by the forensic evidence and medical evidence as recorded above which establishes the injuries on the body of the deceased. 46.

The inability of the investigating officer to trace out the weapon of offence would not impact the result of the case given the clear testimony of the prosecution witness with regard to the culpability of the appellant for commission of the murder. 47.

It is trite that if the testimony of a solitary eye witness is found credible and worthy of proof, it is open to the court to premise the conviction for the commission of the offence with which the person has been charged. Consequently, the finding of the trial judge that the appellant was guilty of commission of the offence with which he was charged cannot be faulted on the ground that the prosecution had examined only Bikas Gurang (PW1) as the solitary eye witness to the occurrence.

Crl. A. 882/2016 Page 19 of 20

We appreciate the assistance rendered to this court by Mr. Chetan Lokur, learned amicus curiae as well as Ms. Aashaa Tiwari, learned APP for the State.

48.

For all the foregoing reasons, the appellant is unable to assail the impugned judgment dated 26th July, 2016 on any legally tenable ground.

We find no merit in this appeal which is hereby dismissed. Let a copy of this judgment be sent to the appellant through Superintendent, Tihar Jail, Delhi.

GITA MITTAL, J ANU MALHOTRA, J JANUARY 10, 2017/kr Crl. A. 882/2016 Page 20 of 20