Delhi District Court
State vs . 1. Vinod Kumar Yadav on 25 May, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 224/11
Computer ID No. 02406R0180232011
State Vs. 1. Vinod Kumar Yadav
S/o Shri Shiv Ram Yadav
R/o Village Majhara
PS Raj Nagar,
Distt. Madhubani, Bihar
(In judicial custody)
2. Maya Haldar
W/o Shri Nidhu Haldar
R/o Village Baria
P.S. Tehtu,
Distt. Nadia, West Bengal
(In judicial custody)
3. Ganesh Yadav,
S/o Shri Ram Ashish Yadav,
R/o Village Parkauli,
PS Arer
Distt. Madhubani, Bihar
(In judicial custody)
FIR No : 445/10
P.S. : Sunlight Colony
U/s. : 302/34 IPC
DATE OF INSTITUTION : 13.07.2011 (Initial date of
State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.1 of 42
institution 05.05.2011)
JUDGMENT RESERVED ON : 19.05.2012
DATE OF DECISION : 25.05.2012
JUDGMENT:
1. Prosecution case in brief is that on receiving the information vide DD no. 7 dated 10.12.2010 at around 8:35 a.m regarding murder of a boy near gate no. 1, Millennium Park. SI Nitin alongwith Ct. Amit reached the spot, meanwhile, SHO alongwith Inspector Kishan Kumar also reached the spot and found the dead body of one young person having injury marks on his stomach, head and the right side of head was punctured by stone, lot of blood oozed out from the body and one chhura was also found lying on the spot. Another stone was lying at the boundary of the walkingtrack and blood was also lying on the walkingtrack and over the grass of the park, and near dead body two chappals also found and from search of one dead body, one mobile phone was found. From that mobile phone, one Kailash was called on the spot who identified the dead body as of one Sanjay Yadav who was working at Cumsum Restaurant, Hazrat Nizamuddin Railway Station.
2. Crime Team was also called at the spot and photographs of the dead body were taken, pursuant to which rukka was prepared and FIR u/s. 302 IPC. Further investigation was handed over to inspector Kishan Kumar.
3. During investigation, inspector Kishan Kumar seized two blood stained State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.2 of 42 stones, one blood stained bended knife and two blood stained chappals from spot and further prepared the rough site plan of the spot.
4. During inquiry Kailash stated that on the night of 09.12.2010 at around 8:15 p.m. he saw deceased Sanjay going out of the restaurant after taking meal with his friends Vinod, Ganesh and Kanhaiya. He further told IO on interrogation that more facts could be gathered from Maya who is guard in the restaurant and know deceased Sanjay very well. Thereafter, on 11.12.2010, Vinod, Ganesh, Kanhaiya and Smt. Maya were called in police station for inquiry and during inquiry it is revealed that Maya has illegal relations with deceased Sanjay and deceased has also made the illegal relations with her daughter named Kanchan age around 2122 years and Maya used to object to this but deceased Sanjay did not mend his ways, which disturbed Maya and she told this fact to Vinod and both had made a plan to kill Sanjay and on 09.12.2010 at around 8.30 p.m. Maya called Vinod at Bara Pulla pul and Vinod came alongwith Ganesh and Kanhaiya and there they were also told about the plan to kill Sanjay. From there they purchased a knife and deceased Sanjay was also called for walking in the IP Park on telephone near railway phatak Nizamuddin, thereafter they all met around 9:45 p.m. at railway phatak Nizamuddin, then they went to Millennium Park. Then, in the Millennium Park, accused Maya caught hold of him, accused Vinod inflicted injuries on him and accused Ganesh and Kanhaiya thrown stones on him, when deceased tries to shout then they put one wooden piece in his mouth and then thrown State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.3 of 42 the body near the small wall and when dogs started barking Maya thrown her black chappal on the dog and knife was also thrown near the dead body, thereafter, all accused persons went away from spot. Disclosure statement of all accused persons recorded in this regard and accused Vinod, Maya, Kanhaiya and Ganesh were arrested. Blood stained clothes of accused Vinod, which he was wearing at the time of incident were recovered, further at the instance of accused Vinod and Maya statement of one Kesh Ram who sold them the knife was recorded. As per postmortem the cause of death opined to be cranio cerebral injury caused by external blunt force and abdominal injuries and all the injuries are sufficient to cause death in ordinary course of nature.
5. On completion of investigation, charge sheet was filed against the accused persons. During proceedings before this court, accused Kanhaiya was declared juvenile and charges against accused Maya, Vinod and Ganesh were framed u/s. 302/34 IPC.
6. Prosecution for substantiating charge has examined 22 witness. Brief summary of their depositions is as follows.
Depositions of Public Witnesses
7. PW1 Mahender deposed that in the year 2010 he was working in Cumsum Restaurant and accused Maya was also working as security Guard and Kailash was working as halwai. Vinod, Sanjay and Ganesh were also working in the shop of the Kailash which was situated on the State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.4 of 42 upper side of the restaurant. He further deposed that Maya quite frequently used to mix up with Ganesh, Sanjay and Kanhaiya and was very friendly with them. He further deposed that they used to tell Maya not to mixed up with those boys but she only stated that she used to take tea with them and after 9:30 p.m., when he was going to his house he met accused Maya, Vinod, Ganesh and Kanhaiya near railway phatak and he asked Maya where they are going then Maya told him that they are going inside I P Park for walking, thereafter, they went inside the park and he went towards his home. In the morning on duty, he asked Maya, where they went inside the park but she had not replied and around 10:30 a.m., she received a call from police on mobile but Maya disconnected the call and had not picked up the call. Thereafter, police persons came to Cumsum Restaurant and on direction of the Manager he alongwith Maya and police persons went to I P Park and had seen the dead body of deceased Sanjay lying inside the park. He further deposed that accused Maya refused to identify the dead body of the deceased. Thereafter, police called Kailash who identified the deceased Sanjay. On being put leading question, he deposed that it is correct that police asked accused Maya that they found her number in the mobile of deceased Sanjay and it is also correct that Kailash identified deceased Sanjay on arrival at spot.
8. In cross examination he deposed that he stated that he do not know the residential address of accused Ganesh, Vinod and Kanhaiya and he had seen mobile phone with Sanjay but not with Ganesh Vinod and State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.5 of 42 Kanhaiya and further cannot tell whether Sanjay had one SIM card or two SIM cards and had seen the accused persons with deceased Sanjay at phatak around 10:00 p.m. and police had not recorded the statement of manager in his presence. He was further confronted with his statement that accused Maya used to take tea with other accused persons and supervisor might doubt her persons with other accused persons and deceased Sanjay. He further deposed that he stayed with the police in Millennium Park for about 30 minutes and police lifted the knife from park in his presence and he also do not know which police persons had recorded his statement. In cross examination on behalf of other coaccused Maya he was confronted with his statement that he had advised Maya not to go on the first floor of the terrace. He further deposed that he cannot tell whether he had told to the police that on recalling by police, she disconnected the phone. He further deposed that he cannot tell the age of deceased Sanjay and accused Maya.
9. PW3 Kailash Yadav deposed that he was working in Cumsum Restaurant as halwai for last 78 yeas and Vinod, Sanjay and Ganesh used to work as his shop and they left his shop at around 8:00/8:30 p.m. on 09.12.2010 and he asked Vinod, where is Sanjay who stated that Sanjay was not present at the room last night also and phone of Sanjay is also switched off. He further deposed that he received the call from inspector Kishan Kumar as he found his mobile number on the phone, thereafter, he reached the Millennium Park alongwith guard State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.6 of 42 Mahender and one lady guard whose name he was not knowing at that time and now came to know as Maya, was found present there and identified the dead body of the deceased Sanjay. Thereafter, he was called at PP Sarai Kale Khan where he was interrogated but he told that he do not know about the incident and was allowed to go after two days. He further deposed that inspector told him the name of lady guard Maya. On being declared hostile, he deposed that he had not stated to the police that accused Maya had worked as guard in Cumsum restaurant for last 34 months. He further deposed that he had not received any complaint that deceased Sanjay was having affair with Maya. He further deposed that he had not seen Sanjay, Ganesh and Kanhaiya after taking dinner on 09.12.2010. He further deposed that it is correct that all of them i.e, Sanjay Ganesh and Kanhaiya used to reside together at Sarai Kale Khan. He further deposed that Maya who knew Sanjay very well did not identified the dead body of Sanjay.
10. In cross examination he deposed that police had detained in chowki Sunlight Colony for two days. He further deposed that at 8:00 p.m. when he left the restaurant, Ganeseh Kanhiaya and Vinod were present and taking dinner. He further deposed that police had not taken anybody else to police station except him and Kanhaiya remained on night duty on that day. He further deposed that police had not taken him to the house of accused Vinod, Ganesh and Kanhaiya for investigation and for two days at least 1520 employees of Cumsum Restaurant detained in PS alongwith him including Mahender (PW1) State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.7 of 42 and all the boys were severely beaten by police and kept separate from them. He further deposed that police had not recorded anything stated by him during his detention.
11. PW12 Sh. Charan Singh deposed that accused Vinod, Kanihiya and deceased Sanjay resided in his house in one rented room and working in Cumsum Restaurant at Nizamuddin Railway Station and identified accused Vinod in the Court. In crossexamination, he deposed that Sanjay, Vinod and Kanihiya residing in the room for the last 10/15 days prior to the incident and there is no rent agreement executed between them and had seen Vinod and Kanihiya in police station and he had not seen any quarrel between Sanjay, Vinod and Kanihiya.
12. PW14 Sh. Keshram deposed that he was selling knifes, churas at his bicycle at Barapula Nizamuddin and had sold knife to one lady and male at around 10:30 p.m. but unable to identify the accused because it is a long time. He further deposed that police had not brought anybody to him and were shown the persons in PS and he had not identified among those persons as who he had sold the said knife. However, on being turned hostile, he deposed that it is correct that one lady Maya and Vinod Kumar came to him accompanying police officials however, again he unable to identify accused Maya and Vinod. In cross examination, he identified the knife when police came to him.
13. PW15 Babu Shahib Yadav and PW16 Ram Dayal Yadav identified the dead body of the deceased Sanjay being their nephew in relation. State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.8 of 42 Deposition of Police Officials:
14. PW2 Ct. Girdhar Singh deposed that on 10.12.2010 being a crime team photographer on the directions of Ins. Kishan Kumar and crime team incharge SI Jitender Kumar took the photographs of the dead body. In crossexamination he deposed that he reached the spot at 09:40 a.m. and crime team remained there from 09:40 a.m. to 10:40 a.m. and and SI Jitender gave the report to SI Kishan Kumar.
15. PW4 HC Satender deposed that on 10.12.2010 he along with SHO, Insp. Kishan Kumar and other staff reached the spot and found the dead body of a young boy and noticed injury on his stomach and hand and one blood stained churra and stone was lying near the dead body and piece of wood was inserted inside the mouth of the deceased and on search of dead body one mobile phone, one earphone lead, one lady wrist watch was also found in his pocket and from his mobile phone number of one Kailash and Maya was noted by the IO. After some time, one Maya reached at the spot but she had not identified the dead body. Thereafter one Kailash also reached, who identified the body and crime team was also called at the spot and blood stained stone, churra, chappal, grass and earthcontrol were seized from the spot.
16. In crossexamination, he deposed that they reached at the spot at about 09:00 a.m. and chance prints were lifted from both the stones and churra recovered from the place of occurrence and he had signed the seizure memo at about 11:00 a.m. He also deposed that crime team reached at about 09:50/10:00 a.m. and rukka was sent about State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.9 of 42 11:30/11:45 a.m. and they left the spot at around 03:15 p.m. He further deposed that seizure memo is prepared after 11:00 a.m. and the seizure memo was prepared after examination of spot by the crime team. He further deposed that he noticed blood stains on the knife and the sketch of the knife was prepared by putting it on a paper and knife was in a bent condition. He further deposed that no blood marks was shown in the sketch and further there is no mention of knife in the site plan. He further deposed no public person were at the spot during 09:00 to 02:30 p.m. He further deposed that he do not know who telephoned from the spot.
17. PW5 Ct. Amit also deposed on the same lines in examinationin chief and further stated that Maya was called at the spot had not identified the dead body and one Kailash identified the dead body and he preserved the dead body at AIIMS Mortuary on the directions of SI Nitin Kumar and after postmortem handed over 4 sealed parcel to IO.
18. In crossexamination, he deposed that dead body was taken to mortuary at about 11:30 a.m. and jama talashi was not conducted in presence of crime team and the said jama talashi of dead body conducted after the crime team left the spot. He further deposed the crime team reached after one hour of their reaching at the spot. He further deposed that sketch of knife do not show that the knife is in bent condition. He further deposed that jama talashi of deceased was prepared before preparation of seizure memo Ex.PW4/B and sketch Ex.PW4/F and FIR No. is mentioned on the jama talashi of the State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.10 of 42 deceased and he took the dead body at about 11:30 a.m. He further deposed that no finger prints and foot prints were lifted by IO or crime team from the spot and personal search is not conducted in presence of public witnesses and the same was conducted at around 11:00 a.m.
19. PW6 SI Jitender Kumar deposed that on 10.12.2010 being incharge mobile crime team reached the spot and inspected the dead body and photographs of the spot were taken and prepared crime team report. In crossexamination, deposed that he is inspected the spot from 09:40 a.m. to 10:30 a.m. and the exhibits were not lifted in his presence. He deposed that he had given the directions to arrest the culprits and recover the weapon of offence used. He deposed that he cannot say the photographs includes knife or not.
20. PW7 SI Mahesh Kumar prepare scaled site plan. PW8 Ct. Satish recorded the DD No. 7 regarding the information of commission of murder at the park.
21. PW9 SI Nitin deposed that on 10.12.2010 on receiving DD No. 7 he along with Ct. Amit Kumar reached the place of occurrence at 8.00 p.m. and found the dead body near the walking track and further found one blood stain chura, stone, chappal, etc. near the spot, further found another chappal lying at the spot. He further deposed that on cursory search of dead body, one mobile phone was found and from phone book two mobile numbers of Kailash and Maya was found. He further deposed that from the said mobile phone, he called Kailash Yadav then he came to know the identity of dead body, crime team was also called State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.11 of 42 at the spot and Kailash Yadav told that deceased was working in Cumsum Restaurant, Nizzamuddin. He further deposed that after registration of FIR, investigation was handed over to Inspector Kishan Kumar who prepared site plan at his instance and further seized stones, chura, chappals, etc. from the spot. He further deposed that before sending the dead body in AIIMS mortuary, personal search of dead body was conducted in which one mobile phone, one lady's wrist watch and one lead wire of mobile phone was recovered. He further deposed that IO had inquired from Kailash Yadav and one Mahender and on 11.12.2010 IO called Maya, Vinod, Ganesh and Kaniya where they disclosed that they have killed deceased Sanjay and further disclosed that Maya and Vinod purchased knife from puliya Nizzamuddin. He further deposed that during investigation the accused persons pointed out place of occurrence and accused Vinod Yadav produced blood stained pant and shirt which he was wearing at the time of incident from his rented room at the house of Charan Singh. Thereafter, accused Vinod took them to Kesh Ram at Bara Pula Pul from whom he purchased chura.
22. In cross examination he deposed that disclosure statement of Maya was recorded on 10.12.2010 and no recovery was affected in pursuance to her disclosure statement. He further deposed that IO had not verified anything about illicit relations between deceased Sanjay and Kanchan D/o accused Maya. Further deposed, crime team reached at spot at 9.30 am and he did not know whether the crime team had handed over State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.12 of 42 its report at spot and later on, only IO can tell this and personal search was conducted after arrival of crime team and after crime team took the photograph. He further deposed deceased personal search was prepared before sending rukka and site plan was prepared after rukka and no position of knife was shown in the site plan. He further deposed that FIR No. was later on added by IO on seizure memos. He further deposed that he has mentioned in his endorsement only calling of Kailash at spot and only one mobile number was found on deceased Sanjay. He further deposed that knife was found in bent condition and sketch was prepared on putting knife on the paper. He further deposed that workers working under Kailash were not apprehended on 10.12.2010 and was not detained illegally for two days and he further denied that all the accused persons were lifted from Cumsum Restaurant on 10.12.2010 before noon. He further deposed that pointing out memo was prepared at the instance of all accused at around 10:00 10:30 p.m. and they entered the park from the back gate at around 10:00 10:30 p.m. on 11.12.2010 and no public witness was joined at the time of investigation. He further deposed that they met the person from whom Vinod purchased knife at about 11:30 p.m. He further deposed that he went to the house of Vinod at around 11:00 p.m. and he took around 1520 minutes in seizing the clothes. He further deposed that landlord Charan Singh was not made witness to the seizure of clothes as he was not residing at the said house and no other tenant was made witness to the said proceeding. He further State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.13 of 42 deposed that accused Ganesh also resided with Vinod and deceased Sanjay and Kaniya was also resided at the same house.
23. PW10 HC Meena Arora being DO a registered FIR and was on duty on 10.12.2010 from 8.00 a.m. to 4:00 p.m. and during her duty hours IO had not come to PS.
24. PW11 Lady Ct. Mamta deposed that on 11.12.2010 one lady Maya was interrogated by IO in her presence and she was arrested and her disclosure statement was also recorded and at around 7:00 7:30 p.m., Maya took to the place of occurrence. In cross examination, she deposed that she was called by IO Kishan Kumar at about 5:00 p.m. and at that time no public persons were present and her disclosure statement was recorded before her arrest. She further deposed that she remained in investigation from 5:00 p.m. to 8:30 p.m. and during his presence in this period IO had not examined or made any inquiries from public witness.
25. PW13 Ct. Anuj deposited 12 Exhibits taken from MHC(M) at FSL Rohini on 28.01.2011.
26. PW17 Dr. Akhilesh Raj conducted postmortem of deceased Sanjay on 12.12.2010 at around 10:15 a.m. and found 17 antemortem injuries and opined cause of death as shock due to cranio cerebral injury caused by external blunt forces and abdominal stab injury and injury no. 1, 2, 3, 4, 5, 6, 7 and 15 individually or in combination are sufficient to cause death in ordinary course of nature. He further deposed that IO sought subsequent opinion regarding alleged weapon State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.14 of 42 and found that weapon was blood stained, therefore, advised IO to first examine the same from FSL and he stated that the said weapon was brought in sealed envelope and he did not open the seal and handed over the same to IO with intact seal and gave subsequent opinion vide Ex. PW17/E.
27. PW18 HC Lakhan deposed about depositing of case property by IO in PS.
28. PW19 Inspector Kishan Kumar (IO) deposed that on 10.12.2010 on getting the information about lying of the dead body he alongwith SHO and staff went to spot and found dead body of young boy lying there and noticed injuries on head, stomach, neck and hands and further found blood stained stones, chappals, chhura lying near the dead body and crime team was also called at the spot which took the photographs of the scene of crime and left at around 10:30 a.m. He further deposed that he conducted the search of dead body and found one lady wrist watch, ear phone and mobile phone and from mobile he called Kailash at spot. He came to spot and identified deceased as Sanjay. He further deposed that he lifted the exhibits from the spot and prepared the sketch of the knife by putting the same on paper and the personal search articles were also seized and at the instance of SI Nitin Kumar he prepared the site plan and left the spot at around 3:30 p.m. and exhibits were deposited in the malkhana. On 11.12.2010 Ganesh, Vinod, Kanhaiya and Maya on detailed examination disclosed that they had killed deceased Sanjay as deceased had developed illicit relations State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.15 of 42 with daughter (Kanchan) of accused Maya. Further disclosed that on 09.12.2010, at around 8:30 p.m. Maya called Vinod at Barah Pulla, Ganesh and Kanhaiya accompanied Vinod and Maya and Vinod purchased chhura from knife vendor for Rs. 25, Maya called Sanjay for walking in the park. Sanjay met Maya around 9:45 p.m. and Maya took him to the park and they sat on the bench, where Maya advised him not to make relations with her daughter but Sanjay stated that he will make relations with her daughter and run away with her. On this Maya caught hold him and Vinod hit him with knife and Ganesh and Kanhaiya attacked him with the stones and when dogs started barking Maya thrown one chappal on the dogs. Thereafter, all the accused Vinod, Maya, Ganesh and Kanhaiya led the police party at the place of occurrence, then accused Vinod took them to his house no. T76 i.e, house of Charan Singh and from one side of corner produced one polythene containing his clothes and then accused persons took police to Barah Pulla Bridge/flyover and pointed out the person Kesh Ram from where they purchased the knife.
29. In cross examination deposed that he conducted inquest proceedings at spot at 10:30 a.m. before sending the dead body in Tata 407. He denied suggestion that accused Maya was detained in PS for two days. He further deposed that he had not seen the house of Maya. He further deposed that deceased dead body was searched after examination by crime team official after 10:35 a.m. He further deposed that no one identified recovered chappal as that of accused Maya. He further State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.16 of 42 deposed that he called Maya from the spot and had not filed the details of phone call in the challan. He further deposed that Kailash was not associated in the proceedings at park and only identified the dead body of deceased Sanjay. He further deposed that all the seizure memos were prepared before registration of FIR and FIR no. was put later on. He further deposed that he recorded the statement of Mahender and Kailash at spot and further there is no mention of chhura in site plan. He further deposed that it is correct that chhura was not shown in bent condition in sketch and no blood stains were shown while preparing the sketch. He further deposed that he called Maya in PS on 10.12.2010 but relieved her after inquiry. He further deposed that he called Ganesh Vinod and Kanhaiya from Cumsum restaurant on 11.12.2010 without any notice and they reached PS at around 2:00 p.m.
30. Accused persons in their statement U/s. 313 Cr. P.C. denied all the incriminating circumstance put to them. Accused Vinod Yadav stated that after work on the date of alleged incident he went to his home and remained at his house whole night. He further raised his defence that he along with other staff at Cumsum Restaurant were forcibly detained and police forced him to sign on blank papers and also stated that on 09/12/2010 accused Kanhaiya (Juvenile) was on the night duty in the restaurant. He left the restaurant at around 8:50 pm and Ganesh left at 9:00 pm and further filed an RTI reply from DDA that Millennium Park that is spot in question have total 11 gates and that park open from October to March from 6:00 am to 7:00 pm. Thus nobody can enter State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.17 of 42 park at closing time.
Material Exhibits:
31. Ex. PW 8/A is the DD No.7 regarding information of murder of one boy near gate no.1, Millennium Park, Ring Road. Ex. PW 9/B is the rukka prepared on which endorsement Ex. PW10/B was made and FIR Ex. PW 10/A was registered. Ex. PW 9/C rough site plan of the spot. Ex. PW 7/A is the scaled site plan. Ex. PW 4/A is the seizure memo of stone earth, earth control lifted from the spot. Ex. PW 4/B is the seizure memo of chhura found near the dead body at the spot. Ex. PW 4/C is the seizure memo blood stain stones. Ex. PW 4/D is the seizure memo of the other blood stain stone. Ex. PW 4/E is the seizure memo of the chapples recovered from the spot. Ex. PW 5/B is the seizure memo of sealed parcels of clothes of deceased.
32. Ex. PW 9/N is the seizure memo of blood stain clothes of accused Vinod. Ex. 19/B is the application given for postmortem. Ex. PW 19/C is the inquest report prepared by the Inspector Kishan Kumar. Ex. PW 16/A, Ex. PW 19/A and Ex. PW 15/A are the identification statement of the dead body. Ex. PW 5/A is the seizure memo of personal search of the dead body. Ex. PW 4/A is the sketch of the knife recovered near the dead body. Ex. PW 19/C is the PCR form State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.18 of 42 showing the receiving of the information about the lying of dead body at Millennium Park at gate no.1 by one Pappu at around 8:31:56 am. Ex. PW 6/A is the Crime Team Report of inspection of spot conducted between 9:40 am to 10:30 am on 10/12/10 with direction to IO to identify deceased, to conduct his postmortem, to made efforts to arrest culprits and recovery of weapons used. Ex. PW 17/A is the postmortem report of the deceased showing cause of death as cranio cerebral injury caused by external blunt force and abdominal stabbing injuries. Postmortem report showing fifteen injuries on the body of the deceased and injury no.1, 3, 4, 6, 7 and 15 are sufficient to cause death in ordinary course of nature individually or in combination and all injuries antimortem in nature. Ex. PW 17/B is the subsequent opinion over the weapon produced in sealed envelop by Inspector Kishan Kumar at AIIMS with the opinion that as their blood is on articles i.e, stones and knife, hence, those are not open and first be sent to FSL for ascertaining the blood group on those weapons. Ex. PW 2/1 to PW 2/16 are the photographs of the scene of the crime and Ex. PW 2/17 to PW 2/34 are the negative of those photographs. Ex. PW 19/E is the FSL report showing the blood found on stone pieces, weapons of offence on chapples and clothes recovered from accused Vinod.
33. Ex. PW 9/F, PW 9/J, PW 9/K and PW 9/L are the disclosure statement of accused Vinod, Maya, Kishan and Kanhaiya. Ex. PW State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.19 of 42 9/D, PW 9/G, PW 9/K and PW/L are the arrest memo of accused Vinod, Maya, Kishan and Kanhaiya. Ex. PW 9/C is the personal search memo of accused Vinod showing recovery of mobile phone and Rs.530/ cash. Ex. PW 9/H is personal search memo of Maya showing recovery of Rs.320/ and one mobile phone. Ex. PW 9/K1 and PW 9/L1 are the personal search memo of accused Kishan and Kanhaiya. Ex. PW 9/M, M1, PW 9/M2 and PW M/3 are pointing out memos of place of occurrence by accused Vinod, Maya, Kishan Yadav and Kanhaiya. Ex. PW 9/P is the pointation memo of the place of purchase of weapon of offence i.e. chhura by accused Vinod and Maya from Bara Pulla Pul from one Kesh Ram, which do bear signature of accused Maya.
34. Ld. Counsel for the accused Vinod and Ganesh submits that the entire case of the prosecution is based on the circumstantial evidence. However, prosecution utterly failed to prove chain of circumstances connecting the accused with the said crime.
35. Ld. Counsel for the accused submits that the prosecution story is that deceased Sanjay was murdered by the accused persons because he has illicit relations with the daughter of accused Maya and further he used to have the illicit relations with the Maya and Maya has objection to his illicit relations with the daughter. Ld. Counsel submits that the prosecution witness PW1 Mahender examined in this regard had not stated anything about the illicit relations nor the same is disclosed by State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.20 of 42 Kailash (PW3).
36. Ld. Counsel further submits that as per the prosecution case PW1 Mahender has last seen accused persons with deceased Sanjay near Railway phatak on the date of incident at around 10.00 pm. PW1 Mahender though stated left from duty late due to distribution of salary but the same was not stated by this witness in his statement U/s. 161 Cr. P.C. nor any attendance register regarding the timing of leaving from Cumsum Restaurant filed on record. Ld. Counsel for the accused however submits that PW1 Mahender stated that he and Maya was taken to spot by one police person but no such police person was examined by police. However, on the contrary as per police case, accused Maya and PW1 were called at spot on telephone and Maya had not identified the dead body, thereafter Kailash (PW3) was called to identify the dead body of the deceased Sanjay. However, it is not explained by the prosecution that why PW1 Mahender had not identified the dead body when PW1 also knows Sanjay working in the Cumsum Restaurant.
37. Ld. Counsel for the accused further submits that in site plan no chhura was shown at the spot and further as per the sketch of chhura, it can't be ascertained that it was in bent condition. Neither chhura was found in the photographs. Ld. Counsel for the accused further submits as per crime team report categorical direction was given to IO to recover the weapon of offence, which implies that no chhura was found on spot. Ld. Counsel for the accused submits that PW14 Kesh Ram had not State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.21 of 42 identified the accused persons in court and further stated that accused were not brought to him by the police. Ld. Counsel for the accused further submits that the clothes shown to be recovered from accused Vinod having blood stains of deceased, however it is the blood stain shown on the clothes are in the straight line and submitted in natural course, if somebody stab then the blood splashed or splatted and not come on the body of the deceased in straight line. Ld. Counsel further submits that no public witness was joined at the time of recovery of blood stain clothes from accused which was shown to be recovered at 11:00 p.m.
38. Ld. Counsel for the accused further submits as per PW3 Kailash, 1520 employees of Cumsum Restaurant detained in police stations for two days and they were given third degree method. Ld. Counsel further submits that when police had already recorded statement of Kailash and Mahender on the day of incident on 10/12/10 then it is not explained why they have not arrested the accused persons on the same day and why they waited for the next day. Ld. Counsel further submits that entire proceedings were conducted at police station as the FIR no. etc on seizure memo were added later on. Ld. Counsel further submits that police has concocted entire story and falsely arrested the accused persons. Ld. Counsel for the accused submits that there is no reason why accused Vinod, Kishan and Kanhaiya will accompanied Maya to murder Sanjay who was living with them.
39. Ld. Counsel for the accused Maya stated that as per DD No.7, Ex. PW State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.22 of 42 8/A the information communicated to the police that a dead body was found gate no.1 of Millennium Park on Ring Road, however the dead body was found towards railway track in the park which itself create doubt on the place of recovery of dead body. Ld. Counsel further submits that as per DCR No.6 the dead body seen by one Mukesh at around 5:00 am but that Mukesh was not examined and further this falsify the version of the police that they receive the information at around 8:30 am in the morning at police station. Ld. Counsel for the accused further submits that the motive as per law is not proved by the accused and there is no incriminating circumstance against the accused Maya. Ld. Counsel submits that accused Maya is falsely implicated in the present case.
40. Ld. Addl. PP on the other hand submitted that prosecution has proved the entire chain of circumstance as PW1 Mahender have being the last witness has categorically deposed that he had seen accused Ganesh, Maya, Vinod and Kanahiya along with deceased Sanjay near phatak at Millennium gate and the blood of deceased was found on the recovered clothes of accused Vinod and further PW14 Kesh Ram stated that the knife was purchased by one lady and gents from him on 09/12/2010.
41. Ld. Addl.P.P. further submits that accused Maya had not identified the dead body of Sanjay deliberately showing her guilty mind. Ld. Counsel submits that prosecution has proved the case against the accused persons beyond reasonable doubt.
42. Arguments heard. Record perused.
State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.23 of 42
43. Abridged prosecution case is that accused Vinod, Ganesh, Kanhaiya (already reported to be acquitted by juvenile court) and deceased Sanjay all works as a helper of Halwai in Cumsun Restaurant with Kailash (PW3). Accused Maya and Mahender (PW1) works as a Guard in Cumsum Restaurant. As per prosecution case accused Maya had illicit relations with deceased Sanjay and he also developed those relations with her daughter Kanchan. This irked accused Maya and she tried to make accused to understand that not to indulge in illicit relations with her daughter Kanchan, however, he did not refrain himself, therefore, she planned along with accused Vinod, Ganesh and Kanhaiya to kill him. In pursuance to that planning, she along with accused Vinod, Ganesh and Kanhaiya purchased a knife / chura from Kesh Ram near Barapulla Bridge for Rs.25/ at around 8.30p.m. on the night of 09.12.2010, thereafter, called deceased Sanjay to Millennium Park, Gate No.1 and then took him inside the park. Thereafter, accused Vinod inflicted abdominal knife injuries to the accused and accused Ganesh, Maya and Kanhaiya caught hold of him, thereafter, Ganesh and Kanhaiya hit deceased with stones lying there, then to fade his shouts put a wooden log inside his mouth and went back to their houses.
44. In the morning at 8.35a.m. of 10.12.2010, Police received an information from PCR that a dead body was lying at Millennium Park near gate No. 1 and thereafter, SI Nitin Kumar (PW9) along with Ct. Amit Kumar (PW5) reached the spot. In the meanwhile, SHO State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.24 of 42 Inspector Kishan Kumar (IO), along with HC Satinder Kumar and other staff also reached the spot and Crime Team was called, which took the photographs of the spot and further instructed the IO to make efforts to apprehend culprit and recovered weapon of offence, used in the offence. On personal search of the dead body, one mobile phone was found, containing the phone numbers of accused Maya and Kailash. Thereafter, Police called accused Maya at spot and she along with PW1 Mahender reached the spot but not identified the dead body and thereafter, Kailash was also called, who identified the dead body, then the dead body was sent to Mortuary and its postmortem was conducted. As per postmortem the cause of death is craniocerebral and abdominal stab injuries and the injuries inflected are sufficient to cause death in ordinary course of nature.
45. Further as per PW19 (IO), statement of Mahender and Kailash was recorded on 10.12.2010 and Maya was also interrogated on the same day. But, accused Maya, Ganesh and Kanhaiya were called at Police Station next day, when they admitted their guilt and thereafter their disclosure statements were recorded. Pursuant to recording of disclosure statement, accused persons were taken to the place of occurrence for pointing out and then at the instance accused Vinod his blood stained clothes which he was wearing at the time of incident, were recovered from his rented room at the house of landlord PW12 Charan Singh. Thereafter, the accused persons were taken to Barapulla Bridge, where they identified PW14 Kesh Ram, from whom State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.25 of 42 they purchased the said knife. The blood stained clothes as per FSL report matched with the blood group of the deceased.
46. The entire case of prosecution is based on circumstantial evidence and the prime circumstances relied by the prosecution is the last seen evidence, recovery of blood stained clothes from the room of accused Vinod and the purchase of knife by accused Vinod and Maya and the trace of blood stains of deceased found on the clothes of accused Vinod. The detail discussion on various circumstances are as follows. Information of Incident :
47. The information regarding the incident, as per DD No. 7 Ex.PW8/A, received at the Police Station at around 8.35p.m. from PCR. As per PCR form Ex.PW19/C, the said information was communicated to PCR Control Room by one Pappu at around 8.31 AM in the morning and as per the noting the PCR form the said dead body was seen by guard Mukesh at around 5.00 a.m. but police not examined Ganesh, Mukesh, however, interrogated Pappu but he reported to have been died before examination. This created doubt over the timing of receiving of the information by the police at around 8.35 a.m. and further indicates that Police might have had received information about the dead body lying in the park, well prior to the receiving of information vide DD No.7. No explanation was offered by the prosecution, why they have not examined guard Mukesh. State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.26 of 42 Circumstance of calling accused Maya, PW3 Kailash, PW1 Mahender at spot by police:
48. As per rukka Ex.PW9/B, the Police reached the spot at around 9.00a.m. and recovered a mobile phone from the pocket of the deceased and from that mobile phone they found the name of one Kailash and his mobile number. Thereafter, they called Kailash, who came to the spot and identified the deceased. Therefore, as per rukka, police only notice the name of Kailash from the mobile recovered from personal search of the dead body. However, as per PW1 Mahender, the police first called from spot to accused Maya and accused Maya switched off the phone, thereafter, one police person came to the restaurant and took him along with accused Maya to the spot, where accused Maya had not identified the dead body. Then police called one Kailash, who identified the dead body at the spot. According to this witness Police had called first Maya then brought him and accused Maya to the spot and only when accused Maya not identified the dead body, called Kailash for identification, which is inconsistent to the version of the Police as per rukka Ex.PW9/B. Because as per rukka there is no mention of calling to accused Maya and only calling of accused Kailash. Further there is no mention in rukka of any fact regarding that Maya refused to identified any dead body at the spot and further there is no mention to the fact that Maya and Mahender both were brought to the spot by any police person.
State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.27 of 42
49. Main police witnesses associated in the investigation are PW4 HC Satinder, PW5 Ct. Amit Kumar, PW9 SI Nitin and PW19 IO Insp. Kishan Kumar. PW19 IO Insp. Kishan Kumar stated that from the deceased mobile they called Kailash but in examination in chief he did not mention anything that police party called Maya at the spot and she switched off the phone. IO in cross examination also stated that it is correct that he has not mentioned the name of Mahender being present at spot in the statement u/s. 161 Cr.P.C. of SI Nitin (PW9), Ct. Amit (PW5) and HC Satinder (PW2).
50. PW4 HC Satinder and PW5 Ct. Amit improved over the prosecution case and stated that from the mobile phone, IO noted the number of Kailash and Maya, which is not the case of the prosecution as per rukka and further stated that Maya had not identified the dead body. Thereafter, one Kailash was called, who identified the dead body. Both PW4 and PW5 had not stated about presence of Mahender at the spot along with Maya. PW9 SI Nitin also stated that two mobile numbers were found in the phone book of deceased, one was of Kailash Yadav and other was of Maya and Kailash Yadav was called at the spot, who identified the dead body. This witness had not stated that any police official called Maya to spot when she disconnected the phone and when brought the spot she not identified the dead body, therefore, called Kailash Yadav, at the spot. This witness in examination in chief also not stated that PW1 Mahender along with accused Maya were present at the spot, at the time of identification of the dead body. State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.28 of 42
51. Further, no call records neither the contents of phone book of deceased Sanjay, Vinod or Maya were filed on records.
52. Though PW19 IO and PW9 SI Nitin had not stated the calling of Maya and Mahender at spot for identification of dead body, however, PW1 Mahender, PW4 HC Satinder and PW5 Ct. Amit stated that first Maya was called on mobile and when she switched off the mobile, she was brought at the spot and at spot she had not identified the dead body, thus Kailash (PW3) was called. It is worth to be noticed if Mahender was present along with Maya and in case Maya had not identified the dead body then Mahender, who is also the employee of Cumsum Restaurant, should have identified the dead body and then there is no need of calling Kailash Yadav for identifying the dead body. Police has no explanation why the dead body was not identified by Mahender, thus other view also emanates from this fact that guard Mahender might not know deceased Sanjay, thus unable to identify deceased Sanjay or might not be present at the spot. Hence, the entire circumstance of calling of Maya, Mahender and Kailash at spot and identification of the deceased as per prosecution version appears to be suspect.
Circumstance of recovery of chhura/knife at the spot:
53. As per rukka and as per seizure memo of the churra, blood stained churra was found near the spot but there is no mention of churra in the site plan and crime team report. As per crime team report, IO was State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.29 of 42 instructed to make efforts to trace the weapon of offence. Further the photographs of the spot was taken by Crime Team and as per testimony of PW6 SI Jitender Kumar, Incharge Mobile Crime Team, even on seeing the photograph, he cannot tell whether the photographs contains the knife or not. According to prosecution case, spot was not touched before the photographs were clicked by the Crime Team. Though, in photographs chappal, stones and other articles appears but no photograph of knife appeared in the photographs. This itself creates doubt of recovery of chura/knife from the spot.
54. As per the seizure memo of chura, the chura recovered had blood stains over it and also found in bent condition and the sketch of the knife was prepared at the spot itself. It is surprising that when the sketch was prepared neither it is mentioned that the knife is in bent condition in the sketch nor any earth or blood stain made the paper of sketch, dirty in any manner. It is further to be noticed as per the seizure memo of knife, the same is witnessed by HC Satinder, Const. Amit and SI Nitin, however, when the public witness Kailash, Mahender and Maya were present at the spot then it is not explained why anybody of them made witness to the said seizure memo at spot. This creates doubt of preparation of the seizure memo at the spot and also further created the doubt, the presence of Maya, Kailash and Mahender at the spot during the police proceedings. Circumstance of recovery of Chappal from the spot:
State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.30 of 42
55. As per the prosecution case, two chappals were recovered from the spot at some distance and according to prosecution case, one of the chappal was thrown by accused Maya over a dog, therefore, both the chappal are found lying at a distance from each other. However, Police had not tried to ascertain, whether that chappal belonged to Maya or not. PW19 IO stated that he had not shown chappals to accused Maya and even did not try to ascertain that this chappal belongs to Maya. Therefore, this circumstances that chappal belonged to accused Maya not proved.
Circumstance of lifting of any chance print from the spot:
56. Neither Crime Team in its report nor IO stated that the chance prints were lifted from the articles found at the spot. However, PW4 HC Satinder in cross examination stated that chance prints were lifted from stones and chura, recovered from the spot. Thus, this circumstance made the prosecution story suspect. If any chance prints were lifted from the articles, then those must not have matched with the finger prints of accused persons i.e, why police had not placed it before court, thus creating big doubt on the prosecution story.
Circumstance of arrest of accused Maya, Vinod, Ganesh & Kanhaiya.
57. As per arrest memos of accused persons they were arrested between 6 p.m. and 7 p.m. on 11.12.2010, however, as per prosecution case, the State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.31 of 42 statement of Mahender and Kailash was already recorded on 10.12.2010 and PW19 IO in cross examination stated that he recorded the statement of Mahender and Kailash at the spot itself. And PW Mahender in his statement u/s 161 Cr.P.C. had categorically stated that he had seen all the accused along with deceased Sanjay entering in the park in the night at 10p.m.. Then it appears to be unnatural on the part of the Police, not to arrest these accused persons on 10.12.2010 but PW19 IO in cross examination stated that they interrogated Maya on 10.12.2010 and after interrogation left her. It has come nothing on record that what she stated in that interrogation. It is not explained by the prosecution why they have not made any interrogation from Vinod, Ganesh and Kanhiaya on 10.12.2010.
58. As per prosecution case, these witnesses were called in Police Station on next day by giving notice u/s 160 Cr.P.C. but no such notice is found the part of record. However, PW IO in cross examination stated that accused persons were not given any notice and they were called from the restaurant on 11.12.2010 and reached Police Station at around 2 p.m. IO PW19 and PW9 SI Nitin denied that the employees and accused persons were illegally detained in Police Station for two days. However, PW3 Kailash stated that for two days 15 to 20 employees of Cumsum restaurant were detains and all the boys including Mahender (PW1) were severely beaten in the Police Station. This itself shows that Police had no clue about the accused persons and no statement of PW Kailash and Mahender recorded on 10.12.2010 at spot. Also State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.32 of 42 creates suspicion on the statement of the PW Mahender that he might be deposing before court under the fear of the Police. This all creates doubt over the manner and time of arrest of the accused persons. Circumstance of pointation of place of occurrence by accused persons:
59. All the accused Maya, Ganesh, Vinod and Kanhaiya shown to be arrested between 6p.m. to 7p.m. on 11.12.2010 and as per PW9 SI Nitin no notice u/s 160 Cr.P.C. were given to them and they were lifted from the Cumsum Restaurant before noon contrary to prosecution case and it took around 2/3 hours in preparation of arrest memos, disclosure statements and all the proceedings in the Police Station were completed at around 9.00p.m. and thereafter, in the night accused persons pointed out the place of incident and taken inside the park at 10/10.30p.m. from back gate. Therefore, as per PW9 the pointation memo of place of occurrence by the accused persons prepared between 10/10.30p.m. at park. The pointation memo of place of occurrence of accused Vinod, Kanhaiya and Ganesh is witnessed by PW9 SI Nitin and HC Satpal and the pointation memo of Maya is witnessed by W Ct. Mamta also. However, prosecution not choses to examine HC Satpal, one important witness for the proceedings conducted with accused persons. PW12 Lady Ct. Mamta on the other hand deposes that accused Maya during investigation also took them to the place of occurrence, but stated that she remained joined in investigation from 5p.m. to 8.30p.m. PW9 SI Nitin stated that pointation memo of place State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.33 of 42 of occurrence was prepared at the instance of accused persons between 10/10.30 p.m., whereas PW11 Ct. Mamta who took accused Maya along with police party to the place of occurrence, stated that she remained in investigation till 8.30p.m. which falsifies the prosecution version of the circumstances of pointing out of place of occurrence at the instance of accused persons.
Circumstance of recovery of blood stained clothes of accused Vinod alleged to be worn by him at time of incident at his instance:
60. As per seizure memo Ex.PW9/M, one pant shirt having blood stains recovered at the instance of accused Vinod from his rented room i.e. House No. T76, Charan Singh ka Makaan, Sarai Kalen Khan, Delhi, alleged to be worn by him at the time of stabbing deceased. This seizure is witnessed by SI Nitin (PW9) and HC Satpal. However, prosecution not choses to examine PW HC Satpal. PW9 SI Nitin in his cross examination stated that the accused persons pointed out the place of occurrence at around 10.30p.m. and at around 11p.m. on 11.12.2010 they went to the house of Vinod for seizure of the clothes and it took around 15/20 minutes in seizing the clothes. Admittedly, no public witness is joined in the recovery proceedings. PW9 in cross examination stated that the landlord Charan Singh was not made a witness to the seizure of the clothes as he was not residing there and there are other tenants in the said premises but nobody was made witness to that seizure. PW19 on the other hand stated that at the time State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.34 of 42 of recovery Charan Singh was not found and it was told to the wife of Charan Singh to send Charan Singh at Police Station. However, wife of Charan Singh is also not a witness to the recovery of clothes and as per PW19 they reached the place of occurrence at 8.15p.m. and then to the rented room of accused Vinod. There is a inconsistency in the statement of both PW9 and PW19 over the fact of the timing of reaching the house of rented room of accused Vinod and further PW9 had not stated anything about the wife of Charan Singh and however, stated that Charan Singh was not residing there. PW19 also stated that he had not made any enquiries from the tenants in the premises.
61. PW12 Charan Singh, however, stated that his wife told him that some police person came in evening at around 6 or 7p.m. or in the afternoon and thereafter he went to the Police Station and saw accused Vinod and Kanhaiya in the Police Station and left Police Station at around 9/9.30p.m. on 11.12.2010. Therefore, as per the version of this witness he remained in Police Station till 9/9.30p.m. on 11.12.2010 and he had seen the accused persons in Police Station at that time. However, as per the testimony of PW9 SI Nitin and PW19 IO Kishan Kumar, all the accused persons during that time were out of the Police Station, for pointing out the place of occurrence, for recovery of clothes and for pointing out the place from where the accused persons have purchased the knife. The testimony of PW12 not only created doubts about the recovery of clothes, alleged to be recovered from the accused Vinod but also created doubt over the other circumstances i.e, pointation of State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.35 of 42 place of occurrence as well as pointing out the place from where accused purchased chhura. Thus, in these circumstances, when no public witness was joined during the recovery of the clothes, the circumstance of recovery of clothes of accused Vinod, as alleged by the police is suspect.
Circumstance of pointation of the place of purchase of one chura i.e, Barapula Bridge from one Kesh Ram (PW14):
62. The said place of purchase of chura was pointed out by accused Vinod and Maya vide pointation memo Ex.PW9/P and as per pointing out, they point out PW14 Kesh Ram by stating that they have purchased the said knife from him in Rs.25/.
63. PW14 Kesh Ram in his deposition could not identify the accused persons in examination in chief and further stated that Police had not brought anybody to him and taken him to the Police station. But as per prosecution this is not their case that they ever brought PW14 Kesh Ram to Police Station, however, on being declared hostile he stated that it is correct that police came on 11.12.2010 at around 8.30p.m. along with accused Maya and Vinod, however, again stated that she cannot identify them. This witness could not identify the accused persons and further on being declared hostile stated that police brought accused persons to him at around 8.30p.m. which is inconsistent to the statement of PW9 SI Nitin, who stated that the accused persons were taken to that place at around 11.30p.m. PW11 Lady Ct. Mamta State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.36 of 42 associated in investigation and took accused Maya for investigation to various places, however, not stated that she took accused Maya to Barah Pulla for pointing out PW14 Kesh Ram at Bara Pulla. Further, as per memo Ex.PW9/N, accused Vinod and Maya both pointed out the place and PW Kesh Ram. However, that memo bears signature of accused Vinod only and not of Maya. PW14 in examination in chief had identified the chura, however, neither in the seizure memo nor in the statement of the any other witness or in the testimony of PW14 it came that he was shown the knife by the police, when accused persons were brought before him. Thus, this circumstance of the purchase of said knife from Kesh Ram, appears to be all suspect. Last seen Evidence:
64. PW1 Mahender deposed in examination in chief that after distributing the salary around 9.30p.m. on 09.12.2010, when going to his house on motorcycle and met with accused Maya, Vinod, Ganesh, Kanhaiya, deceased Sanjay near Railway phatak and seen them going inside the park. This witness further stated that accused Maya used to take tea with other accused persons and deceased Sanjay and further stated that he had told to the police that Supervisor might doubt her presence with other persons and deceased Sanjay, also stated that he had told to the police that he was called by Field Officer for distributing salary. This witness is confronted with all these averments with his statement u/s 161 Cr.P.C., where it was not so recorded.
State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.37 of 42
65. This witness stated that he has given his statement in Police Station, whereas PW19 stated that he recorded his statement at the spot. He further stated he cannot say whether deceased Maya disconnected the phone on receiving the call from police and also stated that he do not know whether Manager sent him alongwith Maya with police to Millennium Park. This witness stated that he had seen the accused persons entering in the park on the night of 09.12.2010 at around 10p.m., including Kanhaiya. However, PW3 Kailash Yadav Halwai stated that accused Kanhaiya remained on night duty on that day and he had seen accused Vinod, Kanhaiya and Ganesh, taking dinner together on that night. This itself created doubt over the testimony of PW1 who has seen Kanhaiya along with accused Vinod, Maya and Ganesh at park.
66. PW3 also stated in cross examination that Police had detained the 15/20 staff members of Cumsum Restaurant for two days and guard Mahender (PW1) was also beaten by the Police. Now one thing is worth to be noticed that as per PW19 IO Kishan Kumar, he stated that he recorded the statement of Mahender and Kailash at the spot. If this is the scenario then there is no need of beating Mahender in the Police Station. If the circumstance of beating of Mahender in the Police Station, believed, then it can be easily inferred that Mahender is giving his testimony before the court due to fear of the Police. Hence, his testimony cannot be relied upon and further if Mahender was a genuine witness, then he must have identified the dead body at the spot State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.38 of 42 or should be made witness to the proceedings, conducted at the spot. Thus, the circumstances of last seen, which Police tried to prove through PW1 Mahender, do not appear to be reliable at all. Motive:
67. According to the prosecution the motive of the alleged murder of deceased Sanjay by accused Maya along with other accused persons is her illicit relations with accused Sanjay and who also started her illicit relations with her daughter Kanchan. PW1 stated that he instructed accused Maya not to mix up with accused Vinod, Ganesh, Kanhaiya and deceased Sanjay, however, she used to take tea with them. However, in cross examination stated that he had not seen accused Maya taking tea with the other accused persons and further not stated of any illicit relation either in examination in chief or in cross examination. PW3 also not stated about any illicit relations of Maya with deceased Sanjay, thus circumstance of motive is not proved by prosecution and mere on disclosure statements no motive could be proved.
FSL Report:
68. As per FSL report the blood group of the deceased Sanjay matched with the blood group found on the shirt and pant recovered at the instance of accused Vinod. Ld. Counsel for the accused had first raised the objection that on the nights of December it is natural that State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.39 of 42 every person wears sweater as deceased was also wearing the sweater and it is not expected when somebody is wearing the sweater then the blood stain will come on shirt instead of sweater. Further as per observation of this court, the blood on the clothes are in the straight line, whereas if somebody hit by stab then the blood with splash and splatter on the body. This argument of the Ld. Defence counsel appears to be logical and further if seen with the circumstances of recovery of shirt and pant, which found to be fictitious as already discussed, then even the matching of blood stains as per FSL report, do not in any way could be of any help to prosecution.
69. According to prosecution, accused Maya conspired with Vinod, Ganesh and Kanhaiya to kill Sanjay and as per disclosure statement, they went to purchase knife at Barapulla and from there they called deceased Sanjay at Millennium Park. However, Police did not try to investigate about the call records of the mobile phones of Vinod, Sanjay or Maya, to corroborate such fact nor the Police seized any of the attendance register or the entry register of Cumsum Restaurant, which as per the testimony of PW1 and PW3 were maintained at the restaurant to ascertain at what time accused persons or deceased left the restaurant. No plausible explanation came on record why accused Vinod, Ganesh and Kanhaiya shall conspire to kill Sanjay with Maya, when they all four residing together and working under Halwai together. Ld. Addl. PP. submitted that the reasons for conspiracy is that also accused Vinod also used to talk and go in park with Maya as State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.40 of 42 per his disclosure statement. This argument of Ld. Addl. PP based on disclosure statement is not legally permissible. Further, even if it is presumed that both deceased Vinod and Sanjay had friendly relations with Maya, even then it cannot be presumed that only on the basis of this Vinod, Ganesh and Kanhaiya will kill Sanjay at the instance of Maya. The other material lapses of the prosecution case that prosecution is callous in not recording the statements of the guard Mukesh, who had first seen the dead body and further not traced the mobile phone record of the accused and deceased and not joined any independent witness during the entire proceedings of recovery and pointation.
70. Thus on overall appreciation of evidence, prosecution could not prove even a single circumstance conclusively and prosecution story created more questions than answers. The prosecution case is suspect on each and every circumstance i.e. time of receiving of information, identification of dead body at spot, recovery of chhura from the spot, calling of Maya or Kailash at the spot. Further the other circumstance of arrest of the accused persons and consequent recovery of clothes and pointation of place of occurrence and PW14 Kesh Ram lacks credibility.
71. Burden of proof is on prosecution, but prosecution miserably failed to prove its case beyond any reasonable doubt, hence accused persons are granted benefit of doubt and acquitted of all charges framed against them. Accused Maya, Ganesh and Vinod are directed to furnish State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.41 of 42 personal bonds in the sum of Rs. 20,000/ each and one surety in the like amount in terms of section 437A Cr.P.C. to the satisfaction of this court. File be consigned to record room after due compliance.
Announced in the open court (AJAY KUMAR JAIN)
on 25th May, 2012 ASJ03/SE/New Delhi
State Vs Vinod Kumar Yadav etc., SC No. 224/11 Page no.42 of 42