Naresh Kumar v. State

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J. February 16, 2009 Dharmender

* IN THE HIGH COURT OF DELHI Judgment reserved on : February 09, 2009 % Judgment delivered on : February 16, 2009 + CRL.A.04/2001 NARESH KUMAR ..... Appellant Through: Mr.D.C.Mathur, Sr. Advocate with Mr.Vikram Singh Panwar, Advocate. versus STATE ..... Respondent Through: Ms.Richa Kapoor, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Case of the prosecution is that the appellant Naresh was a poor relation of the deceased Dr.Dinesh Jayant, and hence either with a desire of enriching himself or out of jealousy planned to murder Dr.Dinesh Jayant and on the intervening night of 1st and 2nd June 1985, accompanied by his co-accused Pramod Kumar, murdered the deceased. That when the appellant and his co-accused were throttling the deceased, the gurgling sound of the deceased was heard by the neighbours who woke up and raised a hue and cry compelling the appellant and his co-accused to flee and while they were fleeing, were seen by John Massey PW-17, W.C.Chhabra PW-18 and Hira Lal PW-12. As per the prosecution, when the police entered the house, they found that not only was Dr.Dinesh Jayant murdered but even his servant, Shankar was murdered. The injuries showed that a sharp edged weapon was used to inflict injuries on the two. As per the prosecution, after the appellant was arrested he made a disclosure statement Ex.PW-27/D and pursuant thereto got recovered a gandasa, the stated weapon of offence. The gandasa had blood stains thereon and the serologist opined that the blood was of a human being and was of the same group as that of Shankar. 2. At the end of the trial, vide judgment and order dated 18.10.2000, the appellant has been convicted for the offence of murdering Dr.Dinesh Jayant and Shankar. The co-accused Pramod has been acquitted. 3. We note that the only evidence surfacing against the co-accused Pramod was the testimony of Hira Lal PW-12 who deposed that he saw Pramod along with the appellant. PW-17 John Massey could only depose that the second person whom he saw in the night was of the same built and similar features as those of Pramod, but he was not definite that Pramod was the second person. 4. We note that in the impugned decision, the learned Trial Judge has not spoken with clarity as to why he was disbelieving PW-12 with respect to his testimony of having identified Pramod as one out of the two persons whom he had seen at the time of the incident, but there are traces in the impugned decision which show that since the incident had taken place at around 2.00 AM on the intervening night of 1st and 2nd June 1985 the learned Trial Judge was not satisfied that said witness was in a position to identify Pramod, inasmuch as the testimony of PW-12 showed that if at all, he had a fleeting glance of the second person who was accompanying Naresh. (If at all Naresh was the first person). 5. The appellant has been held guilty because the learned Trial Judge has returned a finding that John Massey PW- 17, whose statement was recorded by the police immediately after the incident, which statement we note has formed the first information report, had stated that when two persons were seen coming out of the house of Dr.Dinesh Jayant, he had accosted them and had asked them who they were; to which, one of them responded that he was Naresh and was a family member of the deceased. The learned Trial Judge has held that pertaining to his claim of having seen the appellant leave the house of the deceased immediately at the time of the incident, the deposition of John Massey inspired confidence. The second evidence held against the appellant is the recovery of a gandasa pursuant to the disclosure statement of the appellant and it being identified as a weapon of offence which John Massey PW-17 saw in the right ha