Satender @ Baloo v. State

Order dasti.

S. RAVINDRA BHAT (JUDGE)

S.P. GARG (JUDGE)

MARCH 20, 2012

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON: 12.03.2012 PRONOUNCED ON: 20.03.2012 Crl. A.1273/2011, Crl. M. (Bail) 1793/2011 + Crl. A. 1273/2011, Crl. M. (Bail) 1793/2011 SATENDER @ BALOO ..... Appellant Through: Sh. R.M. Tufail with Sh. Farooq Chaudhary and Sh. Vishal Sehijpal, Advocates. versus STATE ..... Respondent Through: Ms. Richa Kapoor, APP, for the State. MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P. GARG MR. JUSTICE S.RAVINDRA BHAT % 1. The appellant was convicted for the offence of murder punishable under Section 302 IPC and sentenced to undergo imprisonment for life as well as to pay fine by the judgment of the learned Additional Sessions Judge dated 19.09.2011 in S.C. No. 196/2009. The order of sentence was passed on 24.09.2011. That judgment as well as the order of sentence are under appeal. 2. The prosecution case was that on 03.09.2005 at about 09.30 PM, in a vacant space in the Gali opposite the house of Umed Singh, at Harijan Mohalla, Village Naya Bans, Narela, the appellant hit one Shriram with a Page 2 Jelly (a three-pronged forked spade-like weapon), which led to Shriram"s death. It was alleged that the crime was witnessed by PW-2, Rajbir and PW- 3 Madan Singh. The incident was reported, according to the prosecution, at around 09.53 PM (proved by the PCR form, Ex. PW-13/M). The statement of the first informant – Madan Singh was recorded in the early hours of 04.09.2005 (Ex. PW-13/J) and a First Information Report (FIR) was registered at 12.40 PM (Ex. PW-13/K). The deceased"s postmortem was conducted and the present appellant was arrested during the course of investigation. He was charged with committing the offence. 3. The appellant stated that he was not guilty, and claimed trial. In the course of the proceedings, the prosecution relied on the testimony of 13 prosecution witnesses. The accused/appellant also led evidence in the form of depositions of two defence witnesses. After considering all these, the Trial Court held that the appellant was guilty and sentenced him in the manner described earlier. 4. The prosecution case primarily depended on the eyewitness testimonies of PWs-2 & 3. Both had deposed during the trial, to having witnessed the appellant attacking the deceased Shriram from behind with a Jelly and fleeing the spot almost immediately. According to them, the incident took place at 09.40 PM. 5. Learned Counsel for the appellant submitted that the testimony of PW-2 is completely untrustworthy because he did not mention that Satender, the appellant was the individual who assaulted the deceased. Learned counsel highlighted the fact that in the cross-examination, PW-2 was confronted with his previous statement recorded during the investigation and he admitted that Page 3 he had not named the appellant as the deceased"s attacker. It is also submitted that in the cross-examination, PW-2 admitted that some criminal cases were pending against him as well as PW-3 Madan Singh in P.S. Narela. Therefore, the counsel emphasized that as a result there was a strong possibility of PW-2 being a false witness who was not present at the spot and was sought to be planted as an eyewitness in the trial to falsely implicate the appellant. 6. Impeaching the credibility of PW-3, learned counsel submitted that the possibility of his being a witness also was highly unlikely. In this regard, it was submitted that both PWs-2 and 3 said that the body lay on the road the whole night. Learned counsel highlighted the fact that the testimony of PW- 3 is untrustworthy, since he claimed that the distance from his house and that of PW-2 was 20 yards; both were chatting outside Rajbir"s house. The scaled site plan (Ex. PW-7/A) reflected that PWs-2 and 3 lived in adjacent houses. According to the testimony of both the witnesses, the appellant allegedly attacked the deceased near Umed Singh"s house which was shown in Point "A" of the scaled map. Learned counsel stressed upon the fact that the site plan reveals tha