{"id":127969,"date":"2011-08-10T00:00:00","date_gmt":"2011-08-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deepak-vs-state-on-10-august-2011"},"modified":"2016-09-17T04:02:33","modified_gmt":"2016-09-16T22:32:33","slug":"deepak-vs-state-on-10-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deepak-vs-state-on-10-august-2011","title":{"rendered":"Deepak vs State on 10 August, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Deepak vs State on 10 August, 2011<\/div>\n
Author: Veena Birbal<\/div>\n
         THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                                  Judgment delivered on: 10th August, 2011\n\n+       CRL.A. No. 838\/2009\n\nDEEPAK                                                         ..... Appellant\n\n                          versus\n\nSTATE                                                        .... Respondent<\/pre>\n
Advocates who appeared in this case:-\n<\/p>\n
For the Appellant : Mr Uday Gupta with Mrs.Shivani Lal &
\n                    Mr M.K.Tripathi, Advocates<\/p>\n
For the Respondent : Mr Sanjay Lao, APP<\/p>\n
CORAM:-\n<\/p>\n
HON’BLE MR JUSTICE BADAR DURREZ AHMED
\nHON’BLE MS JUSTICE VEENA BIRBAL<\/p>\n
1.      Whether reporters of local papers may be allowed
\n        to see the judgment? Yes<\/p>\n
2.      To be referred to the Reporter or not? Yes<\/p>\n
3.      Whether the judgment should be reported in the Digest? Yes<\/p>\n
VEENA BIRBAL, J<\/p>\n
1.      Present appeal is directed against the judgment dated 29th<\/p>\n
August, 2009 passed by the learned Addl. Sessions Judge, New Delhi<\/p>\n
arising out of FIR No.297\/07 registered under Section 302 read with<\/p>\n
Crl. A. No. 838 of 2009                                         Page 1 of 19<\/span>
\n section 34 IPC wherein appellant Deepak has been convicted for the<\/p>\n
offence punishable under Section 302 IPC.            The appeal is also<\/p>\n
directed against the order of sentence dated 10th September, 2009<\/p>\n
whereby the appellant has been sentenced to undergo life<\/p>\n
imprisonment         and to pay a fine of Rs.10000\/- and in default of<\/p>\n
payment of fine to undergo simple imprisonment for six months.<\/p>\n
        The co-accused i.e. the father of the appellant has been acquitted<\/p>\n
of the charge.\n<\/p>\n
2.      The case of the prosecution is that complainant Hans Raj, PW5,<\/p>\n
had made a statement to the police, Ex. PW5\/A, alleging that on 21st<\/p>\n
April, 2007, his father Wazir Singh, i.e., the deceased had gone to<\/p>\n
Patiala House Courts to attend a complaint case filed by him against<\/p>\n
his brother Sri Kishan i.e., the accused in the present case as well as<\/p>\n
his sons Deepak i.e., the appellant, Ram Khiladi and wife of Sri Kishan<\/p>\n
and Santosh wife of Kailash. All the aforesaid persons had also gone<\/p>\n
to attend the said case on the said date. At about 1.30 pm his father<\/p>\n
i.e., the deceased had returned to his house i.e., House No.616, Village<\/p>\n
Devli. When Hansraj PW-5 went to meet the deceased, he told him<\/p>\n
that he had come back with the aforesaid persons in the same bus and<\/p>\n
Crl. A. No. 838 of 2009                                     Page 2 of 19<\/span>
\n when he had got down at Devli bus stand, his son Sri Kishan and<\/p>\n
appellant Deepak had abused him and he did not say anything to them<\/p>\n
and came back to his house quietly.         It is alleged that when<\/p>\n
complainant Hans Raj, PW-5, was taking his father i.e., deceased to his<\/p>\n
house and reached the door of his house, appellant Deepak and his<\/p>\n
father Sri Kishan were standing in front of their house and started<\/p>\n
abusing and beating the deceased. On hearing the commotion, both<\/p>\n
the sons of Hans Raj-PW5 came out and tried to save the deceased<\/p>\n
from the accused persons. In that process, there was a scuffle between<\/p>\n
appellant Deepak and Sandeep, PW1. Thereafter appellant Deepak<\/p>\n
went to his house while Sri Kishan continued quarrelling with the<\/p>\n
deceased. Immediately, Deepak came back with a stick like object in<\/p>\n
his hand and from that he took out a “Gupti” and uttered the words that<\/p>\n
AAJ DADA KA KAAM TAMAM KAR DETA HU and stabbed in the<\/p>\n
stomach of deceased with the said Gupti and at that time co-accused<\/p>\n
Sri Kishan had held deceased Wazir Singh from his back. Thereafter<\/p>\n
appellant and co-accused ran towards their house and both the sons of<\/p>\n
Hans Raj PW-5 brought the deceased to their house and made him lie<\/p>\n
on the cot. It is alleged that thereafter Hans Raj PW-5 called 100<\/p>\n
Crl. A. No. 838 of 2009                                  Page 3 of 19<\/span>
\n number from his mobile. It is alleged that blood was flowing profusely<\/p>\n
from the stomach of the deceased. He was taken to Batra hospital in<\/p>\n
the car of a relative, namely, Dharmaveer. The doctor of the said<\/p>\n
hospital had declared him as having been brought dead. It is alleged<\/p>\n
that Sri Kishan and his son Deepak had committed the murder of<\/p>\n
Wazir Singh. On the said statement, IO had made the endorsement<\/p>\n
and got registered FIR Ex.PW 11\/E against the appellant as well as co-<\/p>\n
accused under Section 302\/34 IPC. Thereafter, the Additional SHO<\/p>\n
Sandeep Byale, IO PW-11, reached the spot with his staff. The crime<\/p>\n
team was called at the spot and took photographs Ex. PW11\/F1 to F4.<\/p>\n
The blood, earth control, blood samples were lifted from the spot by<\/p>\n
the I.O. PW-11 and the same were seized by preparing memos<\/p>\n
Ex.PW5\/D. The I.O. PW-11 also seized one mattress, bed-sheet from<\/p>\n
the cot by preparing memo Ex. 11\/G. The I.O. PW-11 also prepared<\/p>\n
the site plan and thereafter went for the search of appellant and co-<\/p>\n
accused with Hans Raj PW-5.\n<\/p>\n
3.      As per prosecution case, appellant Deepak as well as co-accused<\/p>\n
Sri Kishan were arrested on the same day i.e., 21st April, 2007 at Holi<\/p>\n
Chowk, Devli Gaon, New Delhi by the Investigating Officer PW-11<\/p>\n
Crl. A. No. 838 of 2009                                  Page 4 of 19<\/span>
\n vide arrest memo Ex. PW-5\/B and Ex. PW-5\/C respectively.                On<\/p>\n
interrogation, they had made separate disclosure statements PW 5\/E &<\/p>\n
PW 5\/F respectively.      On the pointing of appellant-Deepak alleged<\/p>\n
weapon of offence Gupti Ex.P-1 was recovered from his house which<\/p>\n
he had kept beneath the stairs of his house i.e., house No.499 A, Devli<\/p>\n
village, which was seized vide Ex.PW-5\/B.           After completing<\/p>\n
necessary formalities in this regard, postmortem examination of<\/p>\n
deceased was got done at AIIMS. The weapon of offence Ex.P-1<\/p>\n
which was seized during investigation was also sent to the concerned<\/p>\n
Doctor who had conducted the postmortem examination of deceased<\/p>\n
and his opinion was also taken in this regard.\n<\/p>\n
4.       After completion of necessary investigation, a report u\/s 173<\/p>\n
Cr.P.C was filed before the learned M.M., Delhi. Thereafter case was<\/p>\n
committed to the Sessions court where charge was framed against the<\/p>\n
accused persons for having committed the offence punishable u\/s<\/p>\n
302\/34 IPC. The appellant and the co-accused had pleaded not guilty<\/p>\n
to the same and claimed trial and thus were tried before the learned<\/p>\n
Additional Sessions Judge, Delhi.\n<\/p>\n
Crl. A. No. 838 of 2009                                  Page 5 of 19<\/span>\n<\/p>\n
 5.      The prosecution in all had examined 22 witnesses. Out of which<\/p>\n
Sandeep PW-1, Prateek PW-2 and complainant Hans Raj PW-5 were<\/p>\n
the alleged eye witnesses to the occurrence.        Remaining evidence<\/p>\n
relates to police and medical witnesses.\n<\/p>\n
6.      Incriminating evidence was put to the appellant as well as to the<\/p>\n
co-accused in their statement u\/s 313 Cr.P.C       They had denied the<\/p>\n
same and stated that they were innocent persons and were falsely<\/p>\n
implicated. The appellant also stated that Gupti Ex.P1 and blood had<\/p>\n
been planted upon him.\n<\/p>\n
7.      The ocular witnesses i.e., Sandeep PW-1, Prateek PW-2 and<\/p>\n
Hansraj PW-5, did not support the prosecution case and denied having<\/p>\n
seen the alleged occurrence.        The learned Addl. Sessions Judge<\/p>\n
relying on circumstantial evidence convicted the appellant Deepak for<\/p>\n
having committed the offence u\/s 302 IPC whereas his father i.e., the<\/p>\n
co-accused Sri Kishan was acquitted.\n<\/p>\n
8.      Learned counsel for the appellant has contended that the eye<\/p>\n
witnesses of the prosecution i.e., Sandeep PW-1, Prateek PW-2 and<\/p>\n
Hans Raj PW-5 did not support the case of prosecution and were<\/p>\n
declared hostile and were cross examined at length by the APP.<\/p>\n
Crl. A. No. 838 of 2009                                    Page 6 of 19<\/span>
\n Despite lengthy cross-examination, nothing relevant has come out<\/p>\n
which could connect the appellant with the alleged occurrence. It is<\/p>\n
contended that the circumstantial evidence relied upon by the Addl.<\/p>\n
Sessions Judge is common for the appellant and the co-accused Sri<\/p>\n
Kishan. On the same set of evidence, appellant has been convicted<\/p>\n
while the co-accused has been acquitted.\n<\/p>\n
9.      It is contended that the learned Addl. Sessions Judge, New Delhi<\/p>\n
has relied upon PCR information Ex. PW-9\/A giving the name of<\/p>\n
appellant as one of the assailants. It is contended that the learned Addl<\/p>\n
Sessions Judge has also relied upon the recovery of weapon of offence<\/p>\n
i.e., Gupti Ex.P1 alleged to have been recovered at the instance of<\/p>\n
appellant. It is contended that the witness to the alleged recovery are<\/p>\n
complainant Hansraj PW-5 and SI Om Parkash, PW-21 in whose<\/p>\n
presence the appellant is alleged to have got recovered Gupti Ex.P1<\/p>\n
and thereafter, same was seized by the IO PW-21 vide seizure memo<\/p>\n
Ex.PW-21\/B. It is contended that Hansraj PW-5 has not supported the<\/p>\n
alleged recovery. As per his deposition, no recovery was effected at<\/p>\n
his instance and police got his signatures on blank papers. It is further<\/p>\n
contended that as per testimony of SI Om Parkash, PW-21 the alleged<\/p>\n
Crl. A. No. 838 of 2009                                   Page 7 of 19<\/span>
\n recovery was effected before recording of disclosure statement<\/p>\n
Ex.PW-5\/F of appellant Deepak.        It is contended that even the<\/p>\n
evidence of IO PW-11 is also not believable in this regard. It is<\/p>\n
contended that Dr. Chittaranjan Behera PW-8 had conducted the<\/p>\n
postmortem examination on the body of deceased on 22.04.2007 vide<\/p>\n
report Ex.PW 8\/A. As per prosecution case on the said date, at noon<\/p>\n
time weapon of offence Gupti ExP1 was sent to the said doctor in a<\/p>\n
sealed packet. The said doctor has deposed that on opening the said<\/p>\n
packet, a wooden case containing Gupti was found which was having<\/p>\n
\u201edried reddish stains\u201f. It is contended that in the sketch Ex.PW-21\/A,<\/p>\n
seizure memo Ex.PW-21\/B which were prepared by the IO at the time<\/p>\n
of alleged seizure of weapon of offence, there is no mention of such<\/p>\n
stains. Even in the deposition of SI Om Prakash, PW-21, IO PW-11<\/p>\n
nothing in this regard has come.        It is contended that in these<\/p>\n
circumstances, the alleged recovery of Gupti Ex.P1 becomes doubtful.<\/p>\n
It is further contended that the said piece of evidence cannot be relied<\/p>\n
upon and the chain of circumstances relied upon by the learned Addl.<\/p>\n
Sessions Judge to convict the appellant breaks there.      It is further<\/p>\n
contended that when there is a doubt in the recovery of Gupti Ex.P1,<\/p>\n
Crl. A. No. 838 of 2009                                   Page 8 of 19<\/span>
\n the benefit of same ought to have been given to the appellant. It is<\/p>\n
further contended that disclosure statement Ex. PW-5\/E of co-accused<\/p>\n
Sri Kishan was recorded prior to recording of disclosure statement of<\/p>\n
appellant Ex. PW-5\/F. In the disclosure statement of Sri Kishan Ex.<\/p>\n
PW-5\/E he had already stated to the police that appellant-Deepak had<\/p>\n
kept Gupti in the house as such the place of recovery was already in<\/p>\n
the knowledge of Investigating Officer. In these circumstances, the<\/p>\n
alleged recovery at the instance of appellant has no meaning.<\/p>\n
10.     Learned APP has argued that the name of appellant has come in<\/p>\n
PCR information Ex. PW-9\/A, the second call which was received at<\/p>\n
1310 hrs. It is further contended that litigation was going on between<\/p>\n
the deceased Wazir Singh and his son Sri Kishan as well as grandsons<\/p>\n
Deepak i.e., appellant and Ram Khiladi as such there was a motive to<\/p>\n
eliminate him. It is further contended that there is no doubt about the<\/p>\n
alleged recovery of Gupti Ex.P1 and the evidence in this regard does<\/p>\n
not create any doubt as is contended. The dried reddish stains were<\/p>\n
found on the Gupti Ex.P1 as is evident from the testimony of Dr.<\/p>\n
Chittaranjan Behera PW-8. As per CFSL report Ex.PW-9\/B blood is<\/p>\n
detected on Gupti Ex.P1 and as per CFSL report Ex.PW-10\/A the<\/p>\n
Crl. A. No. 838 of 2009                                  Page 9 of 19<\/span>
\n blood group is \u201eA\u201f which tallies with the blood group of deceased. Dr.<\/p>\n
Chittaranjan PW-8 who has conducted the postmortem examination on<\/p>\n
the body of deceased has opined that injury no.1 on the body of<\/p>\n
deceased could be sustained by the Gupti.\n<\/p>\n
11.     It is contended that there are documents on record i.e., complaint<\/p>\n
Ex. PW17\/B dated 25th July, 2006 of deceased Wazir Singh filed<\/p>\n
against co-accused Sri Kishan and his family including the appellant<\/p>\n
before ACMM, New Delhi to the effect that they were harassing him<\/p>\n
and wanted to reside in the property of the deceased. It is contended<\/p>\n
that there are other complaints of deceased i.e., Ex.PW 22\/B to Ex.PW<\/p>\n
22\/D against his family members including the appellant and from the<\/p>\n
said complaints motive of appellant to commit the alleged occurrence<\/p>\n
is clearly established. It is contended that on the pointing of Hans Raj<\/p>\n
PW-5, IO PW11 had apprehended the appellant and co-accused. It is<\/p>\n
further contended that the learned Addl. Sessions Judge has rightly<\/p>\n
convicted the appellant on the basis of circumstantial evidence<\/p>\n
established against the appellant and the appeal is liable to be<\/p>\n
dismissed.\n<\/p>\n
Crl. A. No. 838 of 2009                                     Page 10 of 19<\/span>\n<\/p>\n
 12.     We have heard learned counsel for the parties at length and<\/p>\n
perused the material on record.\n<\/p>\n
13.     There are three eye witnesses to the alleged occurrence i.e.<\/p>\n
Sandeep PW-1, Prateek PW-2, both sons of Hans Raj PW-5. The<\/p>\n
deceased Wazir Singh was the father of Hans Raj PW5. The aforesaid<\/p>\n
prosecution witnesses have not supported the case of the prosecution in<\/p>\n
any manner. Sandeep, PW-1 and Prateek, PW-2 were confronted with<\/p>\n
their statements Ex.PW1\/A & Ex.PW 2\/A respectively alleged to have<\/p>\n
been made by them to police. The witnesses have denied having made<\/p>\n
any such statements to the police. The complainant Hans Raj PW-5<\/p>\n
was also confronted with the statement Ex.PW 11\/C alleged to have<\/p>\n
been made to the police on the basis of which FIR Ex.PW-11\/E was<\/p>\n
registered. He has also denied having made any such statement to the<\/p>\n
police. He has deposed that police got a number of blank papers<\/p>\n
signed from him. There is nothing in the evidence of the alleged eye<\/p>\n
witnesses by which it can be said that appellant had caused the alleged<\/p>\n
occurrence.\n<\/p>\n
14.     The circumstantial evidence relied upon by the prosecution is<\/p>\n
PCR form Ex.P-9\/A and Ex.PW 15\/A, arrest of the accused persons at<\/p>\n
Crl. A. No. 838 of 2009                                  Page 11 of 19<\/span>
\n the instance of complainant Hans Raj PW-5, Blood stained Gupti<\/p>\n
Ex.P1 which is alleged to have been recovered from beneath of the<\/p>\n
staircase from the house of appellant at his instance. The opinion<\/p>\n
Ex.PW-8\/B of Dr Chitranjan Behera about weapon of offence and<\/p>\n
CFSL report Ex.PW-10\/A as per which blood group `A\u201f is found on<\/p>\n
the Gupti which is that of deceased.\n<\/p>\n
15.     As per PCR form Ex.15\/A, on 21st April, 2007 at about 12.41<\/p>\n
pm, Head Constable Mahavir PW-15 had received a telephone call<\/p>\n
from Hans Raj, PW-5, phone no.9968199212, who had informed about<\/p>\n
a quarrel at Holy Chowk, Devli village regarding stabbing of father of<\/p>\n
caller by a knife. HC Mahavir PW-15 transmitted the call details to<\/p>\n
wireless operator and reduced the said information into writing vide<\/p>\n
PCR form Ex. PW15\/A. It may be noticed that in the said information<\/p>\n
name of the person having stabbed is not given. As per prosecution<\/p>\n
case, the said message was transmitted to the PCR South Zone Vehicle<\/p>\n
Eagle 47.       As per recording in PCR form Ex. PW9\/A, under the<\/p>\n
heading of action taken by the police in the PCR form, it is stated<\/p>\n
therein that the police official posted at E-47 had met Hans Raj PW-5<\/p>\n
at the spot and was told by him that his father Wazir Singh aged 87<\/p>\n
Crl. A. No. 838 of 2009                                 Page 12 of 19<\/span>
\n years had been stabbed by the grandsons and the name stated therein<\/p>\n
are Srikishan, Deepak and Ram Khiladi.           The said information<\/p>\n
recorded in the PCR form is contrary to the deposition of ASI Om<\/p>\n
Prakash PW-19 who at the relevant time was posted in the PCR South<\/p>\n
Zone Eagle 47. As per his deposition, on reaching the spot, injured<\/p>\n
was not found and he was informed that it was a property dispute<\/p>\n
between the family members.         In these circumstances, even the<\/p>\n
aforesaid information recorded in Ex.PW19\/A cannot be relied upon.<\/p>\n
The other two entries of PCR form Ex. PW9\/A are recorded at 1359<\/p>\n
hours and 1442 hours. As per information record at 1359 hours, it is<\/p>\n
stated that at Batra Hospital, CMO informed that Wazir Singh aged 87<\/p>\n
years was brought dead in the hospital. The seat of injury is also stated<\/p>\n
therein.     In the said information, name of accused persons is not<\/p>\n
mentioned. The other information was recorded at 1442 hours wherein<\/p>\n
it was recorded that caller had informed that incident had occurred five<\/p>\n
minutes back and his father had been stabbed by khukri by his son Sri<\/p>\n
Kishan and the two sons Deepak and Ram Khilari.\n<\/p>\n
16.     Further the case of the prosecution is that on 21st April, 2007,<\/p>\n
appellant and co-accused were apprehended at 11 pm at the instance of<\/p>\n
Crl. A. No. 838 of 2009                                   Page 13 of 19<\/span>
\n Hans Raj PW-5.            It is stated that appellant disclosed that he could get<\/p>\n
the weapon of offence Gupti Ex.P1 recovered. Thereafter, he led the<\/p>\n
police party to his house and got recovered the weapon of offence<\/p>\n
Gupti Ex.P1 from beneath the staircase. The Gupti Ex.P-1 was seized<\/p>\n
by the IO PW-11 in the presence of SI Om Prakash PW-21 and PW-5<\/p>\n
Hans Raj. Hans Raj PW-5has not supported the recovery of Gupti Ex.<\/p>\n
P-1. SI Om Prakash PW-21 has deposed that after conducting the<\/p>\n
personal search of appellant Deepak and co-accused Sri Kishan, vide<\/p>\n
memo Ex.PW-5\/B and Ex.PW-5\/A respectively, they led the police<\/p>\n
party to House No.499A, Devli Village and the appellant got recovered<\/p>\n
Gupti Ex.P-1 beneath the staircase of their house. Thereafter, sketch<\/p>\n
of Gupti was prepared Ex.PW-21\/A which was also signed by him and<\/p>\n
Gupti was also seized vide Ex.PW-21\/B and it was sealed with the<\/p>\n
seal of SB. Thereafter, IO PW-11 recorded the disclosure statement<\/p>\n
of appellant Deepak and Sri Kishan signed their Ex.PW.5\/F and<\/p>\n
Ex.PW.5\/E respectively and he also signed both the disclosure<\/p>\n
statements. Thereafter, they came back to police station along with the<\/p>\n
case property.\n<\/p>\n
Crl. A. No. 838 of 2009                                           Page 14 of 19<\/span>\n<\/p>\n
         As per the above deposition of SI Om Prakash PW-11, the<\/p>\n
alleged recovery was effected prior to recording of disclosure<\/p>\n
statement Ex. PW 5\/F of appellant Deepak, which is no recovery in the<\/p>\n
eyes of law as such is not admissible under Section 27 of the Indian<\/p>\n
Evidence Act. Further he has nowhere stated that Gupti Ex.P1 was<\/p>\n
having reddish stains. The Gupti Ex. P1 was sent to Dr. Chitranjan<\/p>\n
Behera PW-8 for seeking his opinion on the weapon offence. The said<\/p>\n
witness has categorically stated in his evidence that Gupti Ex.P-1 was<\/p>\n
having \u201edried reddish stains\u201f and he recorded the same in report Ex.<\/p>\n
PW-8\/B. It is also an admitted position that no finger prints were lifted<\/p>\n
from the weapon of offence i.e. Gupti Ex.P-1 before the same was<\/p>\n
seized. It is also admitted position that in the sketch Ex.PW 21\/A,<\/p>\n
seizure memo it is not mentioned that Gupti was having \u201edried reddish<\/p>\n
stains\u201f on any portion of it. After reading the evidence it is noticed<\/p>\n
that after sealing the pulanda and seizing the weapon of offence, the<\/p>\n
seal after use was not handed over by the IO to Hans Raj PW-5 or to SI<\/p>\n
Om Praksh PW-21.\n<\/p>\n
17.     ACP Sandeep Bayala, PW-11 was the additional SHO of P.S<\/p>\n
Ambedkar Nagar at the relevant time and was the IO of the case. As<\/p>\n
Crl. A. No. 838 of 2009                                   Page 15 of 19<\/span>
\n per his deposition, appellant had made a disclosure statement Ex.PW-<\/p>\n
5\/F and had disclosed that he could get recovered the weapon of<\/p>\n
offence. Thereafter, he had led the police party to House No. 499-A,<\/p>\n
Devli Village and got recovered Gupti Ex.P1 beneath the staircase of<\/p>\n
the aforesaid house which was seized vide seizure memo Ex. PW-21\/B<\/p>\n
and he had proved his signature on the disclosure statement Ex.PW-<\/p>\n
5\/F. In the seizure memo Ex.PW-21\/B, it is clearly stated that before<\/p>\n
seizing, Gupti was checked. It is no where recorded in the said memo<\/p>\n
that Gupti was having \u201edried reddish stains\u201f. Even in the sketch Ex.<\/p>\n
PW 21\/A of Gupti, Ex.P1 there is no mention of \u201edried reddish stains\u201f.<\/p>\n
Even in the evidence, it is not so stated by him. IO PW-11 has also<\/p>\n
stated in the evidence that he did not lift any finger prints from Gupti<\/p>\n
Ex.P1.\n<\/p>\n
18.     In view of evidence discussed above, different versions are<\/p>\n
coming about alleged recovery of Gupti Ex.P1.         The complainant<\/p>\n
Hans Raj PW-5 has denied that the appellant got recovered the alleged<\/p>\n
weapon of offence Ex.P1 under the staircase of his house no.499,<\/p>\n
Devli Village. According to SI Om Prakash PW-21, Gupti Ex.P1, was<\/p>\n
recovered first and thereafter disclosure statement Ex.PW-5\/F was<\/p>\n
Crl. A. No. 838 of 2009                                   Page 16 of 19<\/span>
\n recorded. In these circumstances, the recovery of weapon of offence is<\/p>\n
not admissible u\/s 27 of the Evidence Act. Even if the evidence of<\/p>\n
aforestated witnesses is ignored, the testimony of IO PW-11 also does<\/p>\n
not inspire confidence.   IO PW-11 in his deposition has stated that<\/p>\n
after sealing the pulanda, he has handed over the seal to SI Om<\/p>\n
Parkash PW-21 but the said fact is not recorded in the seizure memo<\/p>\n
Ex. PW-21\/B. As noted above, it is nowhere stated in the sketch of<\/p>\n
Gupti Ex.P1 or in the seizure memo Ex. PW-21\/B of Gupti that the<\/p>\n
same was having dried reddish stains as is stated by Dr. Chitranjan<\/p>\n
Behera PW-8. Dr. Chitranjan Behera PW-8, has noticed the \u201edried<\/p>\n
reddish stains\u201f on Gupti Ex.P-1 on opening the sealed pulanda, as is<\/p>\n
recorded in Ex.PW-8\/B as well as in his deposition before court. Had<\/p>\n
the said stains been there at the time of alleged recovery, SI Om<\/p>\n
Prakash PW-21 as well as IO PW-11, who had seized the same, would<\/p>\n
not have escaped their attention. The stand of appellant is Gupti Ex.P1<\/p>\n
and blood stains are planted. In view of the above, it cannot be said<\/p>\n
that recovery of Gupti Ex.P1 is established by the prosecution beyond<\/p>\n
doubt.\n<\/p>\n
Crl. A. No. 838 of 2009                                  Page 17 of 19<\/span>\n<\/p>\n
 19.     It may also be mentioned that disclosure statement of co-accused<\/p>\n
Sri Kishan Ex. PW-5\/E was recorded prior to disclosure statement Ex.<\/p>\n
PW-5\/F of appellant Deepak and in the said disclosure statement, place<\/p>\n
of recovery had already come.         Instead of acting upon the said<\/p>\n
disclosure statement, IO PW-11 recorded the disclosure statement Ex.<\/p>\n
PW-5\/F of the appellant and thereafter proceeded for recovery<\/p>\n
pursuant to said disclosure statement.    In these circumstances, even<\/p>\n
otherwise the said disclosure statement Ex. PW-5\/F leading to alleged<\/p>\n
recovery is not admissible in evidence.\n<\/p>\n
20.     As per CFSL report Ex. PW-10\/A blood group \u201eA\u201f is detected<\/p>\n
on Gupti Ex.P1 which tallies with blood group of deceased. When the<\/p>\n
recovery of Ex.P1 is doubtful, the said report Ex. PW-10\/A is of no<\/p>\n
help to prosecution.\n<\/p>\n
21.     In view of above discussion, no reliance can be placed on the<\/p>\n
said circumstantial evidence of alleged recovery of weapon of offence<\/p>\n
Gupti Ex.P1. There are documents on record to show that there was<\/p>\n
property dispute between deceased and appellant and his son Sri<\/p>\n
Kishan co-accused and his family including appellant. In the absence<\/p>\n
of material evidence on record, evidence regarding motive, name of<\/p>\n
Crl. A. No. 838 of 2009                                   Page 18 of 19<\/span>
\n appellant coming in PCR form Ex. PW-9\/A is not sufficient to convict<\/p>\n
the appellant.\n<\/p>\n
22.     Considering the overall circumstantial evidence, appellant<\/p>\n
deserves to be given the benefit of doubt. The judgment dated 29th<\/p>\n
August, 2009 and the order of sentence dated 10th September, 2009<\/p>\n
passed against the appellant are set aside.    Accordingly, appeal is<\/p>\n
allowed and the appellant-Deepak stands acquitted by giving him the<\/p>\n
benefit of doubt. He be released forthwith if not required in any other<\/p>\n
case.\n<\/p>\n<\/p>\n
                                    VEENA BIRBAL, J<\/p>\n
                                    BADAR DURREZ AHMED, J
\nAugust 10, 2011
\nssb<\/p>\n
Crl. A. No. 838 of 2009                                  Page 19 of 19<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Deepak vs State on 10 August, 2011 Author: Veena Birbal THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 10th August, 2011 + CRL.A. No. 838\/2009 DEEPAK ….. Appellant versus STATE …. Respondent Advocates who appeared in this case:- For the Appellant : Mr Uday Gupta with Mrs.Shivani Lal […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-127969","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nDeepak vs State on 10 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deepak-vs-state-on-10-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deepak vs State on 10 August, 2011 - 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