Delhi District Court
State vs 1 Deepak @ Deepu S/O Bane Singh, on 8 April, 2010
IN THE COURT OF MANOJ JAIN: ADDL. SESSIONS JUDGE/
SPECIAL JUDGE (NDPS): OUTER DISTRICT: ROHINI:
DELHI
SC No.13/2008
FIR No.02/2008
PS Kanjhawala
U/s 302/201/394/397/392/328/411/34 IPC
State Versus 1 Deepak @ Deepu s/o Bane Singh,
R/o F14, Niti Vihar,
Prem NagarII, Delhi.
2 Rajender @ Jinder @ Dancer,
S/o Diwan Singh,
R/o Z155, Prem NagarII, Delhi.
Date of filing : 08.08.2008
Date of conclusion of arguments : 16.03.2010
Date of decision : 08.04.2010
JUDGMENT
1 A dead body was found floating in the pond of Karala Village, Kanjhawala on 06.01.2008. Police swung into action. Body was fished out. Its hands were found tied from behind and both the legs and mouth were also found tied. No external injury was found and the body could not be identified at the spot by any one. FIR was registered. Investigation was carried out and on 12.01.2008, missing record of PS Nangloi was checked and it was learnt that the body was of one Naresh Jain. Tarun Jain (brother of victim) identified the body. Call details of Mobile No. 9899124707 (belonging to deceased Naresh Jain) were procured. During investigation, it was learnt that both the accused persons were responsible for the murder of Naresh Jain. According to prosecution, both the accused conspired to take away Naresh Jain on the pretext of party. Naresh Jain was told that party had been arranged in which a model would be brought. On 05.01.2008, both the accused (FIR No. 02/2008 PS Kanjhawala) page 1 of 34 arranged Maruti Car bearing No. DL5C 7241 and also purchased some edibles besides liquor and Naresh Jain was called up from one STD booth and asked to come at Main Rohtak Road. According to the case of prosecution, one Ashok Kumar Sharma saw Naresh Jain going with the accused persons. As per further case, accused administered Naresh Jain drink laced with sleeping pills and then robbed him, murdered him and threw his body in the pond. Purse of deceased as well as his wearing chain and Kada (bracelet) were recovered from accused It is in these circumstances that both the accused persons have been chargesheeted for commission of offences u/s 302/201/392/394/397/328/411/34 IPC.
2 Charge sheet was filed in the Court on 13.04.2008.
3 Case was received on allocation by this Court on 08.08.2008.
4 Both the accused were charged U/S 328/392/302/201/34 IPC. They both pleaded not guilty and claimed trial.
5 Prosecution was directed to adduce evidence and has examined 35 witnesses viz. PW1 Sh. Tarun Jain, PW2 Sh. Ashok Kumar Sharma, PW3 Sh. Deepak Jain, PW4 Sh. Sanjay, PW5 Sh. Om Prakash, PW6 Sh. Vikas Jain, PW7 Sh. Pappu, PW8 Sh. Raj Kumar, PW9 Sh. Rajesh Dabas, PW10 Sh. Rajender Verma, PW11 Sh. R K Singh, PW12 Mukesh Verma, PW13 HC Krishan Swaroop, PW14 W/Ct. Nirmala, PW15 Ct. Ramesh Chander, PW16 Sh. Jyotish Moharana, PW17 ASI Kanwar Singh, PW18 SI Manohar Lal, PW19 ASI Shiv Narain, PW20 ASI Daya Chand, PW21 Parmod Verma, PW22 HC Anil Kumar, PW23 SI Suraj Bhan, PW24 Dr. Manoj Dhingra, PW25 SI Ishwar Singh, PW26 WHC Sudesh, PW27 Sh. Hardev Singh, PW28 Sh.
(FIR No. 02/2008 PS Kanjhawala) page 2 of 34 Rajesh Goel, PW29 HC Surender Kumar, PW30 Ct. Ved Prakash, PW 31 HC Kanwar Singh, PW32 Sh. Jitender Kumar, PW33 HC Naresh Kumar, PW34 HC Surender Singh and PW35 Insp. Suman Pushkarna.
6 Both accused, in their respective statements u/s 313 Cr.P.C. pleaded innocence and claimed that they had been falsely implicated. Accused Deepak examined DW1 Bane Singh (his father) and DW2 Baldev Kumar (Goldsmith) in his defence. Accused Rajender @ Dancer has examined Sandeep Sharma in support of his defence.
7 I have heard learned Addl. P.P. and learned defence counsels and carefully perused the entire material on record.
8 Ms. Purnima Gupta, learned Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has argued that there are several circumstances appearing against both the accused persons and on the basis of circumstantial evidence duly proved by the prosecution, it becomes perceptible that deceased had been murdered by none other than both the accused persons.
9 Learned defence counsels have refuted all the aforesaid contentions and it has been contended by them that both the accused persons have been falsely implicated. They have argued that since investigating agency was clueless, simply in order to show that the case has been solved, both the accused persons were picked up and falsely implicated in the present case. Written submissions have also been filed. I would discuss the contentions raised by them at appropriate places.
10 Following are the circumstances on which the investigating agency has chosen to rely upon:
(1) Accused Rajender @ Dancer knew
deceased Naresh Jain beforehand and both
(FIR No. 02/2008 PS Kanjhawala) page 3 of 34
the accused, who were in need of money,
planned to rob him.
(2) Accused persons arranged for
sleeping pills i.e. Lorazepam tablets,
Namkeen, cold drinks & strings etc.
(3) Both accused arranged for Maruti
Car No. DL5SC 7241.
(4) Call was made from STD booth at 9.30
PM on 05.01.2008 and Naresh Jain was
asked to meet them.
(5) Ashok Sharma saw both the accused
& victim going together.
(6) Maruti car was recovered at the
instance of accused persons.
(7) Strip of Lorazepam was recovered at
the instance of accused from same Maruti
car.
(8) Several articles belonging to deceased
Naresh Jain were recovered at the instance
of accused persons.
(9) Such articles were duly identified.
(10) As per forensic report, viscera
content of deceased indicated presence of
Lorazepam.
11 Indubitably, there is no direct evidence before us. It has to
be seen from the various circumstances whether accused are architect of such murder. Where a case rests squarely on circumstantial evidence, the inference of guilt can be acceptable only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In other words, there must be a absolute chain of evidence not leaving any ground for a (FIR No. 02/2008 PS Kanjhawala) page 4 of 34 conclusion steady with the innocence of the accused. Court has to satisfy itself to the following aspects: (I) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(II) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(III) The circumstances should be of a conclusive nature and tendency;
(IV) These should exclude every possible hypothesis except the one to be proved;
and (V) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
12 As per prosecution story, both accused had conspired to rob and kill Naresh and in order to carry out their wicked designs, they had arranged for Maruti car (for taking away Naresh Jain), sleeping pills (to drug him in order to rob him and finish him), Namkeen, liquor and cold drink (cold drink for mixing up sleeping pills) and strings (to tie victim). Thereafter, as per the plan, they had made a call from STD booth and they had called victim to the main road. Ashok Sharma is the person who had seen the victim accompanying accused persons. After arrest of accused, car was recovered and strip of tablets was also recovered. Various articles belonging to deceased were also recovered (FIR No. 02/2008 PS Kanjhawala) page 5 of 34 and those were identified as well.
13 Let me see whether prosecution has been able to prove each and every circumstance showing the complicity of accused persons or not.
ARRANGMENTS BEFORE COMMISSION OF OFFENCE
(I) Arrangement of Car
14 According to prosecution, Maruti car bearing no. DL5C
7241 had been used in the commission of offence. There are two
material witnesses who can throw light on this issue. These are Mukesh Verma and Pramod Verma.
15 Pramod Verma is very important witness. In his statement u/s 161 Cr.P.C., he had claimed that he had purchased the aforesaid Maruti car from Mukesh Verma. He also claimed that both accused persons had demanded car on rent and rent was agreed as Rs. 700/ by Mukesh Verma. He also told the police that both accused took the car from him on 05.01.2008 at 9.00 PM and the car was driven by accused Rajender @ Dancer and on 06.01.2008 at 7.00 AM, they both parked the car in front of his house and handed over the key of the car to him and rent amount was paid to Mukesh Verma. Pramod Verma has been examined by the prosecution but unfortunately PW21 Pramod Verma has not supported the case of prosecution. So much so, he has not been able to give the complete registration number of his own Maruti car. He simply claimed that he had purchased the car from his neighbour Mukesh Verma and on 05.01.2008 Mukesh had come to him claiming that he wanted the car for some work and he had given the car to him which he returned next day. In his entire examinationinchief, which is very sketchy one, he did not make even a whisper regarding the role or (FIR No. 02/2008 PS Kanjhawala) page 6 of 34 involvement of accused persons. On the other hand, he claimed that Mukesh Verma had taken the car from him and returned the car to him next day. Naturally, this witness was crossexamined by the prosecution with the permission of the Court but despite there being exhaustive crossexamination, he did not utter even a single word favouring prosecution. He categorically claimed that it was wrong to suggest that both accused persons, present in court, had taken the car away.
16 PW21 Pramod Verma is referring to Mukesh Verma and Mukesh Verma has also graced the witness box. PW12 Mukesh Verma deposed that both accused had taken the Maruti car on rent from him on 05.01.2008. In his examinationinchief, he claimed that on 27.12.2007 he had sold the vehicle to Pramod Verma and both accused had come on 05.01.2008 claiming that they wanted to attend some marriage and asked for some vehicle on rent and thereupon he talked to Pramod Verma and gave vehicle to them on rent and rent was settled as Rs. 700/ for one night. He also deposed that vehicle was taken by the accused persons at about 9.00 PM and next morning when he went to the house of accused Rajender @ Dancer, Maruti car was found parked in the gali in front of house of accused Rajender and he was paid Rs. 700/ as rent by the accused persons and then he took the vehicle and returned the same to Pramod. Mukesh Verma has come up with vast improvements. It is not feasible to bring together the versions given by Mukesh Verma and Pramod Verma. Mukesh Verma himself deposed and admitted that he had already sold the vehicle to Pramod Verma. He also admitted that after he sold the vehicle, possession of the vehicle was not with him since 27.12.2007. In his examinationinchief he claimed that residence of Pramod Verma was situated in front his house but in crossexamination, he took a different stand and claimed that house of Pramod Verma was situated in Gali No. 8 and his house was in Gali No. 6 and house of Pramod Verma was not visible from his house.
(FIR No. 02/2008 PS Kanjhawala) page 7 of 34 He also admitted that he had not given that vehicle or any other vehicle to anyone else one month prior to the alleged date or one month after. He also claimed that he did not see the driving licence of the accused persons. It's a case where only vehicle had been allegedly rented out as no driver as such was provided. In such a situation, normally, any such person insists for handsome security or the vehicle is given to known/reliable person. There is nothing on record which may suggest that Mukesh Verma knew accused very well before hand and it is hardly believable that Mukesh Verma would give the car to strangers without having any sort of security in advance. Mukesh Verma himself has claimed that even the rent was paid at the time of return of car. Moreover, it was Pramod Verma, who had given the vehicle to the accused persons and the vehicle was returned back to him only. Possession was with Pramod Verma and he is the last owner of the vehicle though vehicle was yet to be registered in his name. He was the best person who could have revealed as to who had taken the vehicle from him and when. As already noticed above, Pramod Verma has turned unfriendly to prosecution and has not supported the case of prosecution.
17 I would here like to mention that it does happen that vehicle changes hand but no information is given by the concerned buyer or seller to the Regional Transport Authority. People simply sign unfilled Form No. 29 & Form No. 30 but rarely information is sent to RTA. Names of buyer and seller are not filled deliberately as in such a situation such buyer can enter into further transaction and make use of unfilled but signed forms. In the present case also, there is long chain. As per State, this vehicle was earlier owned by PW7 Pappu. PW7 Pappu has entered into witness box and he has claimed that he had signed Form No. 29 & Form No. 30 and had sold the vehicle in 2006. He claimed that he had sold the vehicle to some Sikh person and did not support the case of prosecution. He was, therefore, crossexamined by (FIR No. 02/2008 PS Kanjhawala) page 8 of 34 the prosecution with the permission of the Court but despite that he claimed that he could not say whether he had sold the vehicle to one Hardev Singh.
18 PW27 Hardev Singh has also entered into witness box and he has also turned hostile and has not supported the case of prosecution.
19 PW8 Rajkumar has deposed that he had purchased said Maruti car in 2006 and thereafter he sold the same to Rajesh Dabas. PW9 Rajesh Dabas claimed that he had purchased the vehicle but he claimed that he had sold the same to Rajender Verma. Rajender Verma has also entered into witness box and he deposed that he had purchased the vehicle from Rajesh Dabas and sold the same to Mukesh. However, his such stand was not in consonance with the case of prosecution and, therefore, he was crossexamined by the prosecution but he remained adamant to his stand taken in examinationinchief and denied that he had sold the vehicle to Pramod Verma.
20 Thus, there is complete chaos and it is not clear as to who was the registered owner of the Maruti car in question. Nobody came forward to take back the car on superdari. It seems that owner was scared as the vehicle had been allegedly used in the commission of heinous crime. Nobody wanted to put oneself in a spot to bother by staking claim over the car. It is indeed unfathomable as to why investigating agency did not even bother to contact Transport Authority. As per registration certificate on record, vehicle was in the name of PW7 Pappu but it is not at all clear whether as per record of Transport Authority, Pappu continues to be the registered owner or whether there was any change in the ownership details as per the record of such Transport Authority. Investigating agency should have at least contacted the Transport Authority. Be that as it may, even if it is assumed that finally the vehicle was owned by Pramod Gupta, (FIR No. 02/2008 PS Kanjhawala) page 9 of 34 prosecution has not able to substantiate that it was Pramod Gupta who had handed over the Maruti car to accused persons.
(ii) Arrangement of medicine/sleeping pills 21 As per case of prosecution, accused persons had purchased Lorazepam tablets. With the help of these tablets, accused persons had allegedly drugged victim and then robbed him and murdered him. PW6 Vikas Jain has been examined by the prosecution. Vikas Jain is having a shop with the name of Vikas Medical Store and he has deposed that on 16.01.2008, police official had come along with two persons and police had asked him to show his bill book. He deposed that he had told the police that accused persons had visited his shop on 01.01.2008 and on the basis of prescription slip, he had given them medicine. He also deposed that bill book was taken into possession by the police vide seizure memo Ex. PW6/A. Bill book was produced during the trial and witness identified the same. Entire bill book has been proved as Ex. P6. Relevant bill no. 1413 has been proved as Ex. P7. Such bill book was for the period from 20.12.2007 to 15.01.2008. I am not inclined to believe either the bill book or the deposition of PW6 Vikas Jain. Reasons are as under:
(i) Firstly, Vikas Jain himself has admitted in the crossexamination that it was correct that 50100 customers used to visit his shop daily. Nobody knows as to how Vikas Jain knew accused persons beforehand. Vikas has not said a word in this regard. Vikas Jain is a chemist and hundreds of customers visit him and it is not humanly possible for him to remember and to identify all such customers. There is nothing on record which may suggest that Vikas Jain knew the accused persons before hand and in such a situation, his identification of accused persons does not seem to be worth believing.
(FIR No. 02/2008 PS Kanjhawala) page 10 of 34 (2) Secondly, if at all the investigating agency felt that Vikas Jain could have, in fact, identified those persons who had purchased the medicine from him then investigating agency should have prayed for holding of judicial TIP. Nothing of that sort was done either.
(3) Thirdly, bill book seems to be manufactured one. I have seen all the bills contained in the bill book and in a stereotyped manner, there are found to be only two bills of each date. It would be hardly believable that a chemist situated in Uttam Nagar would sell medicine to only two customers each day. This also indicates that bill book has been made up subsequently.
(4) Fourthly, it is not clear as to how this bill in question i.e. bill Ex. P7 connects accused. As per investigating agency, medicine had been purchased by accused Deepak for his father but the bill is found to be in the name of Amit Sehgal. Nobody knows as to who is this Amit Sehgal. Name of father of accused Deepak is Bane Singh.
Prosecution has not garnered any material which may show any sort of connection between accused Deepak and such Amit Sehgal. In such a situation, bill Ex. P7 cannot be connected with the accused persons.
(5) Fifthly and more importantly, as per the bill, Lorazepam tablets, which had been sold to the accused persons, were of batch no. 02064. According to prosecution, strip of the same tablet was recovered subsequently from the Maruti car which had been allegedly used by the accused persons but such strip contains different batch number i.e.02082 Prosecution has miserably failed to explain such difference between batch numbers. Moreover, when PW6 Vikas Jain had entered into witness (FIR No. 02/2008 PS Kanjhawala) page 11 of 34 box, he was not even shown such strip by the prosecution. Probably, prosecution deliberately held such fact back as it knew that batch number was different and, therefore, purposely such strip was not shown to such witness.
22 Be that as it may fact remains that in view of my foregoing discussion, there is not plausible evidence on record which may show that accused persons had purchased Lorazepam tablets from PW6 Vikas Jain on 01.01.2008 vide bill Ex. P7.
(iii) Arrangement/purchase of cold drink, Namkeen, liquor and strings.
23 As per case of prosecution, accused persons had purchased all these articles (barring liquor) from the shop of Sanjay. PW4 Sanjay has entered into witness box. He admitted that he was having Kirana Shop at H3/6, Sultan Puri, Delhi. He also deposed that police had made inquiries from him 56 months back and police had asked whether he had sold any string. He further deposed that neither any such Nara (string) was shown to him nor any person was shown to him when queries were made from him by the police. Since, witness was found resiling from his previous statement, he was crossexamined by the prosecution with the permission of the Court. However, prosecution could not extract anything useful from him as he deposed that he could not say whether accused present in court were brought to his shop by police on 16.01.2008. He categorically claimed that it was wrong to suggest that both accused persons had earlier visited his shop and that they had come in Maruti car at about 9.00/9.30 PM and had purchased half ltr campa bottle, glasses, cigarette, Namkeen and eight naras. Thus, this particular circumstance has not been established by the prosecution in view of the hostile testimony of Sanjay. There is no proof whatsoever that accused persons had purchased any liquor. Prosecution is merely (FIR No. 02/2008 PS Kanjhawala) page 12 of 34 acting on the basis of disclosure statements made by the accused persons. PW35 Insp. Suman Pushkarna has deposed that both accused had taken them to the liquor shop near Jalebi Chowk from where they allegedly purchased liquor. He further deposed that he met two salesmen but those salesmen were not able to provide any evidence against the accused persons and claimed that there used to be hundreds of buyers daily and they could not identify. I rather feel that the version given by such salesmen is apparently correct and it is not possible for such salesmen to remember each and every detail with respect to the buyers. Be that as it may, fact remains that there is no legally admissible evidence either to show that accused persons had purchased any liquor that night.
(iv) Making of STD call 24 This is a very important circumstance. As per case of prosecution, both accused had come in Maruti car and made a call from a STD booth to the mobile of deceased who was asked to come at Rohtak Road. PW5 Om Prakash is such STD booth owner. He has deposed that approximately six months back, police had come to his shop and made inquiries about some call which had been made from his booth. He claimed that he was not having any record and, therefore, he could not give any answer. He further deposed that police then again came to his shop with two persons and asked whether those persons were the same who had made call from his STD Booth 1012 days back. He deposed that he expressed his ignorance in that regard. This witness was also declared hostile and was crossexamined by the prosecution. Despite being crossexamined by the prosecution, this witness did not utter even a single word in favour of prosecution as he deposed that it was wrong to suggest that police had brought accused persons to his shop and he had identified them as those persons who had come to his (FIR No. 02/2008 PS Kanjhawala) page 13 of 34 shop in a Maruti car 1012 days back and had made telephonic call from his STD booth.
25 I would certainly like to note that telephone number of his STD booth is admittedly 9871194318 and as per call records, a call had been made from his STD booth to the mobile of deceased at 10.29 PM. Even if such fact is admitted, there is nothing to suggest that such call had been made by the accused persons. Call had been made from STD booth and STD booth owner has not supported the case of prosecution and he has rather demolished the case of prosecution. He resiled from his previous statement. He has neither been able to identify the accused persons nor has been able to say that the accused persons had come at his shop in Maruti car and had made any call from his STD booth. This important circumstance also does not stand proved.
CRUCIAL CIRCUMSTANCE OF LAST SEEN 26 Prosecution is heavily banking upon this circumstance. According to prosecution, Ashok Sharma had seen victim going with accused persons. PW2 Ashok Sharma is a very important witness. Let me see as to what he has to offer in this regard.
27 He has deposed that he was a property dealer and Naresh Jain was his friend and he knew him for the last 78 years. He deposed that on 01.01.2008 Naresh Jain had come to his house as he required some jewellery articles from Naresh Jain and Naresh Jain had come to deliver the same. He deposed that when he asked him as to how he had celebrated New Year Eve, he told that a party would be there on 04.01.2008 and he would be going to that party with one person known as Dancer and he also told that some model had also been called for that party who had been arranged by that Dancer. On 05.01.2008, as per Ashok Sharma, he met Naresh Jain at about 10.30 PM in the street.
(FIR No. 02/2008 PS Kanjhawala) page 14 of 34 Ashok Sharma deposed that Naresh Jain was residing near his house. At that time, Ashok Sharma was coming back from his office and he had a chat with Naresh Jain and enquired from him as to where he was going and then Naresh Jain told that party which was scheduled for 04.01.2008 had been cancelled and was slated for that day and that he was going to attend that party. He then accompanied Naresh Jain till the main road i.e. Main Rohtak Road. He saw silver colour Maruti 800 car already parked there and then Naresh Jain told him that his friends had already come to collect him. He also deposed that Naresh Jain sat in that car. Thereafter, he (Ashok Sharma) returned to his house. He also deposed that Dancer was on the driving seat of that car and he had seen him in that car. He also identified Dancer during the trial. He also deposed that 34 days thereafter Tarun Jain had come to his house and enquired about Naresh Jain. He had told Tarun Jain about all the aforesaid facts and then he went to PS Nangloi and revealed all those facts to the police. His testimony was recorded on 16.09.2008. As per ordersheet dated 16.09.2008, it becomes very much clear that whatever Ashok Sharma wanted to say in his examinationinchief was recorded that day. His examinationinchief was over and his crossexamination was deferred as defence wanted to crossexamine him along with PW Tarun Jain. This witness appeared again on 17.09.2008.
28 As per case of prosecution, Ashok Kumar Sharma had seen both accused persons that night but since in his examinationinchief, he did not even make a whisper regarding other accused, court questions were put to him. Such court questions and corresponding answers are as under:
Court question: On 05.01.2008, did
you notice anyone else while you had gone
towards the said silver coloured Maruti
car?
Ans. I had also seen one more person with
accused Dancer. I did not know that
person beforehand. Both the said persons
(FIR No. 02/2008 PS Kanjhawala) page 15 of 34
were standing out of the car.
Court question: Can you identify that
person?
Ans. Yes. I was shown that person at the
Police Station also. (Witness has indicated
towards accused Deepak as the said
companion).
29 Learned Addl. P.P. has contended that Ashok Sharma has
given a very coherent and believable version and there is no reason whatsoever to discard his testimony. She has argued that he had seen victim accompanying both accused persons on the night of 05.01.2008 and next morning victim was found murdered and there is no hiatus and, therefore, there is no possibility of anyone else committing the crime in question. From the side of defence, it has been argued that Ashok Sharma is a made up witness. It has been argued that Ashok Sharma was a very good friend of victim and, therefore, he has been directed by the investigating agency to depose against accused persons. It has been argued that he even knew about the criminal case against Naresh and even his girl friend and factum of marriage of such girl friend as well. It has been argued that his testimony clearly reveals that he had not seen victim going towards Main Rohtak Road. My attention has been drawn towards various improvements which he made during the trial.
30 If prosecution case is to be believed then Ashok Sharma knew accused Dancer in advance. In such a situation, naturally, there was no requirement of holding of any judicial TIP. But what about his companion? As per case of prosecution, accused Dancer @ Rajender was accompanied by accused Deepak @ Deepu. As per the statement given by Ashok Sharma u/s 161 Cr.P.C., Dancer had come with one more person in a silver colour Maruti car and they both took Naresh Jain in such vehicle. In his entire statement u/s 161 Cr.P.C. he did not make even a whisper that he could identify that other person. That (FIR No. 02/2008 PS Kanjhawala) page 16 of 34 other person i.e. accused Deepak @ Deepu had been apprehended at the instance of accused Dancer. In such a situation, it was incumbent upon the investigating agency to have arranged judicial TIP. Statement of Ashok Sharma was recorded on 12.01.2008 by the investigating agency. Accused Deepak was arrested on 14.01.2008 and in patently illegal manner, investigating agency usurped the judicial power and showed accused Deepak @ Deepu to the witness on 16.01.2008 at PS that too in a blatantly wrong manner. Supplementary statement of Ashok Sharma was recorded on 16.01.2008 wherein he identified both the accused persons. Such manner of holding TIP is indeed execrable. As per the statement made by Ashok Sharma during investigation, he had accompanied the victim upto main road and when they both reached at the main road i.e. outer road, accused Dancer came there with one more person in silver colour Maruti car. It clearly means that first Ashok Sharma and victim had reached at the spot and it was thereafter only that car had come there. However, PW2 Ashok Sharma has taken a different stand in the witness box as according to him, when they both reached at the main road, Maruti car was already parked on the road. Ashok Sharma deposed before the Court that Dancer was sitting on the driving seat and he had seen him in that car. But when court question was put to him, he claimed that both the persons were standing out of the car. In his crossexamination, he deposed that he had seen Naresh Jain boarding the car from a distance of around 2025 paces. It is very crucial fact. In his entire statement recorded u/s 161 Cr.P.C. Ashok Sharma never disclosed as to by what mode of conveyance he was returning from his office that day. In his crossexamination, he claimed that he was on his bike and when he met Naresh Jain, they both had come upto the main road on the same bike and Naresh Jain was on the pillion seat. If at all he had given lift to Naresh Jain then he would not have dropped Naresh Jain at a distance of 2025 paces from the car. He would have rather dropped Naresh right at the spot where the car was allegedly parked. Moreover, I need not remind myself that the date of (FIR No. 02/2008 PS Kanjhawala) page 17 of 34 alleged incident is 05.01.2008. It is matter of common knowledge that month of January is full of chill and fog in capital city of Delhi and year 2008 was no exception. At late hour of the night i.e. around 10.30 PM, visibility diminishes drastically and so it is not possible to irrefutably identify a person from a distance of 2025 paces. Moreover, if at all Ashok Sharma had seen accused Deepak @ Deepu as well then he would have at least disclosed his description in his statement u/s 161 Cr.P.C. However, his statement does not carry any such description. It is not clear whether he had seen accused Rajender driving or standing out. He had seen both accused persons at the PS and on that basis only, he has identified accused before the Court. His such identification does not carry much legal value.
31 TIP conducted during investigation is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. It is true that normal rule is that testimony of a witness, who does not know an accused from before and identifies him for the first time in the Court as a person who had participated in the commission of the crime, without holding a previous identification parade does not carry much weight.
32 In STATE (DELHI ADMN.) V. V.C. SHUKLA, 1980(2) SCC 665, it has been observed that the evidence of the witness in Court and his identifying the accused only in the Court without previous identification parade is valueless. In GEORGE VS. STATE OF KERALA 1998 CR. L.J.2034 SC, it has been observed as under: (FIR No. 02/2008 PS Kanjhawala) page 18 of 34 "It cannot be denied however that though not fatal, absence of the corroborative evidence of prior identification in a T. I. parade makes the substantive evidence of identification in Court after a long lapse of time a weak piece of evidence and no reliance can be placed upon it unless sufficiently and satisfactorily corroborated by other evidence."
33 In the case of STATE OF MAHARASHTRA V. SUKHDEO SINGH, (SC) 1992 CRI.L.J. 3454, it has been observed as under: "....In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused persons had since changed their appearance. Test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the Court ordinarily seeks to act on it. In the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance."
34 Moreover, prosecution is duty bound to show that in the present situation when Ashok Sharma was returning from his office and was coming to his house, he had every chance of meeting Naresh. There can be two possibilities. Either, house of Naresh Jain should fall on stretch between office of Ashok Sharma and his house so that while returning, Ashok Sharma has every chance to meet him or road leading (FIR No. 02/2008 PS Kanjhawala) page 19 of 34 to the main road should fall on such stretch. Prosecution has not been able to establish such fact at all. According to Ashok Sharma, he was having his office at Shiv Ram Park and while returning, people generally use the rear side to enter Nangloi village. He also admitted that on that night as well, he had used passage of rear side and while coming from there, house of Naresh did not fall in between. According to him, house of Naresh was two streets away from his house. He rather deposed that Naresh was already present in street near Rohtak Road. There is no map or sketch showing these roads. In such type of situation, it would have been important had the investigating agency got prepared sketch of the road and route used by victim so as to clearly show that Ashok had every chance of noticing the victim while victim was on his way to Rohtak Road.
35 Moreover, as per Ashok Sharma, he had met Tarun Jain on 08/01/2008 as well. Naturally, Naresh was already missing and it is not explained as to why there was no conversation between the two regarding whereabouts of Naresh. That day, Tarun must be visibly disturbed as his brother was missing. He comes across good friend of Naresh but does not make any enquiry from him at all that day. Such conduct is not digestible.
36 Be that as it may, testimony of Ashok Sharma does not enthuse complete confidence in view of my foregoing discussion.
37 It is also well settled that mere piece of evidence of last seen unless corroborated by other evidence is hardly sufficient to form foundation for conviction of the accused.
38 Reference be made to RAMREDDY RAJESHKHANNA REDDY V. STATE OF A. P. [2006 (10) SCC 172] and Dhanwant Singh v. Union Territory, Chandigarh, (SC) 2007(2) (FIR No. 02/2008 PS Kanjhawala) page 20 of 34 R.C.R.(Criminal) 868.
39 Thus even if last seen evidence is assumed to be in existence, state has to come up with further corroboration as well. In the case in hand, last seen circumstance itself is found to be rather shaky and unsteady.
RECOVERY OF CAR 40 According to prosecution, Maruti car bearing no. DL5C 7241 was used by the accused persons for the purpose of commission of offence. As already noticed above, Ashok Sharma does not know the number of the car at all. He only knows that the car was Maruti car. Both accused persons were apprehended on 14.01.2008.
41 It is also important to note as to on what basis they had been apprehended? When during investigation, it was learnt that dead body was of Naresh Jain, his brother Tarun Jain revealed the mobile number belonging to Naresh Jain. Such number was 9899124707 and Insp. Suman Pushkarna then collected call details from Nodal Officer of Essar. Printout has been proved as Ex. PW35/H. Ownership proof in this regard was also proved by PW16 Sh. Jyotish Moharana, Nodal Officer, Vodafone, Essar Mobile Service Ltd. As per agreement Ex. PW16/B, prosecution has attempted to show that Naresh Jain was registered subscriber of said mobile phone number and the call details were proved as Ex. PW16/A. It would be important to mention here that PW16 Jyotish Moharana produced the aforesaid documents during his deposition and it was observed by the Court that he had put his signatures on Ex. PW16/A during the course of his deposition. Manner of proving the record is not within the legal parameters. Reference be made to one recent judgment of our own High Court cited as DEVESH KUMAR VS. STATE (NCT OF DELHI) CRL. APPEAL NO. 793/2004 (FIR No. 02/2008 PS Kanjhawala) page 21 of 34 (DATE OF DECISION 10.02.2010) wherein it has been elucidated as to in what manner such electronic record is required to be proved. There is nothing before me that printouts produced and exhibited before the Court were generated from the computers storing information and that information as such was stored in the ordinary course of business by the Service Provider. Nodal Officer had rather shown the audacity of signing the call details at the time of recording of his deposition. Nobody knows whether he is actually authorized in this regard or not. There is no certificate appended on printouts and, therefore, such record has not been proved in consonance with Section 65B of Indian Evidence Act. It will also be worthwhile to mention that as per call details of mobile of deceased, there were certain more calls after the call from STD booth of Om Prakash. These seem to be diverted calls. State should have also got such fact suitably clarified. It should have been ascertained as to which number the calls had been diverted to and who had made calls to the mobile of deceased. Mr Jyotish rather says that as per record there were calls from said mobile till 13.01.2008. His such narration of fact does not seem to be correct as it seems to be a case of callforwarding or diverting of the call.
42 Let me, however, assume for a moment that record is admissible. As per PW35 Insp. Suman Pushkarna, when the call details were scrutinized, it was noticed that on 05.01.2008, there was incoming call from mobile no. 9871194318 at 22:29:22 hours to said mobile of deceased. There was no incoming and outgoing call after that particular call and, therefore, PW35 Insp. Suman Pushkarna collected ownership of mobile number 9871194318 and it was found to be in the name of Om Prakash Verma and it was found to be the number of shop where STD facility had been provided. As per case diary, call details regarding the mobile number of deceased were collected by investigating officer on 12.01.2008 itself. Investigating officer must have learnt about the said STD booth number of Om Prakash same day but it has not been (FIR No. 02/2008 PS Kanjhawala) page 22 of 34 explained as to why Om Prakash was contacted belatedly i.e. on 16.01.2008 and not immediately. There is gap of four days in his examination which is not explained by the prosecution and investigating agency. If at all investigating agency knew that last call had been from the STD booth of Om Prakash then Om Prakash should have been immediately contacted but there is nothing on record which may show that Om Prakash was contacted on 12.01.2008 or immediately thereafter. He was rather contacted on 16.01.2008 and at that time investigating officer had gone to his shop along with both accused persons and Om Prakash then identified both the accused persons and claimed that they had made call from his STD booth that night. As already noted above, Om Prakash has not supported the prosecution case at all.
43 Be that at it may, it seems that perhaps investigating agency pinpointed the complicity of accused persons on the basis of call details as well as on the basis of version of Ashok Kumar Sharma. Accused persons were arrested on 14.01.2008 and PW35 Insp. Suman Pushkarna has deposed that in pursuance to the disclosure statement of accused Rajender, car bearing no. DL5C7241 silver colour was recovered from Gali No. 1, Prem Nagar on 14.01.2008. Seizure memo has been proved as Ex. PW19/E. I lay stress that as per seizure memo and as per testimony of investigating officer, such recovery had taken place on 14.01.2008. Recovery is from open place. Maruti car was found parked in Open Street and it cannot be said, by any stretch of imagination, that the car had been recovered at the instance of accused Rajender. Recovery, in such a situation, from an open public place which is accessible to one and all cannot be said to be a recovery of fact at the instance of accused. Moreover, as per seizure memo, at the time of recovery, police was able to associate one independent witness. Seizure memo bears signatures of Pramod Verma. PW21 Pramod Verma, as already noticed above, has not supported the case of (FIR No. 02/2008 PS Kanjhawala) page 23 of 34 prosecution and has turned hostile. He was crossexamined by the prosecution with the permission of the Court and it was suggested to him that on 14.01.2008, car was seized. He, however, claimed that it was wrong to suggest that car was seized on 14.01.2008. He rather deposed that car had already been seized on 13.01.2008. This fact again makes the prosecution story doubtful. An independent witness says that recovery had already taken place before the arrest of the accused persons whereas according to the investigating officer, recovery was at the instance of accused. Thus, recovery of car at the instance of accused does not stand proved to the hilt.
RECOVERY OF LORAZEPAM TABLETS FROM MARUTI CAR 44 Seizure in this regard has been proved as Ex. PW19/E and according to prosecution, when the car was searched, one strip containing four tablets of Lorazepam 2 mg was recovered from beneath the front left side seat. This recovery, naturally, as per prosecution case, was made on 14.01.2008 and again Parmod Verma is found to be attesting witness but PW21 Parmod Verma has categorically denied this fact. He deposed that it was wrong to suggest that vide memo Ex. PW19/E, the police had seized strip Ex. PC i.e. strip containing four tablets of Lorazepam from said car in his presence. Thus, again a material independent witness has not supported the case of prosecution. Moreover, vehicle had been allegedly taken away by the accused persons on 05.01.2008 and it was allegedly returned next morning. Car was seized on 14.01.2008 and there is gap of eight days in between and prosecution is duty bound to show that during aforesaid interval of eight days no one else had any chance of taking away the vehicle and that vehicle remained parked there in the same condition as left by accused till the same was allegedly seized by the police. There is no evidence in this regard either as not a word has been deposed in this regard by the witnesses who remained in possession of the same in between and, (FIR No. 02/2008 PS Kanjhawala) page 24 of 34 therefore, also recovery of strip becomes unsure fact.
45 Moreover, as per seizure memo and as per case of prosecution, recovery was made from beneath the left side front seat of the Maruti car but PW19 ASI Shiv Narain has not supported the case of prosecution in this regard. According to him, one strip of tablet was recovered from beneath the front driver seat. Since he was not found coming with complete and correct particulars, learned Chief Prosecutor sought permission to put leading question to him. Such request was allowed and in his such crossexamination, he supplemented some of the facts and claimed that it was correct that number of Maruti car was DL5C7241 and name of the tablet was Lorazepam. However, he did not support the case of prosecution wholeheartedly and further deposed that he could not say whether such strip containing four tablets had been recovered from beneath the other front seat and not from beneath the driver seat. He was important prosecution witness. Maruti car and strip of Lorazepam had been seized in his presence and he signed those Memos as attesting witness but despite that he does not even know Maruti car number and does not know name of the tablet and also does not know the exact place from where such strip was recovered. Undoubtedly, PW35 Insp. Suman Pushkarna has deposed as per document but testimony of other two attesting witnesses has made the recovery doubtful. Moreover, recovered strip does not stand connected with the alleged strip sold by Vikas to accused as batch number does not tally. Defence also grilled I.O. on this aspect and I.O. claimed that he did not remember whether batch number did not match with bill. His evasive answer does not serve purpose. Fact remains that batch number does not match.
(FIR No. 02/2008 PS Kanjhawala) page 25 of 34
Recovery of Kada
( Bracelet) and chain
46 According to prosecution, one chain and Kada belonging
to deceased had been recovered at the instance of accused Deepak @ Deepu from his house. Seizure memo in this regard has been proved as Ex. PW19/L. It has been prepared by Insp. Suman Pushkarna and it bears signatures of two witnesses viz ASI Shiv Narain and Ct. Anil. Kada has been proved as Ex. P1 and chain has been proved as Ex. P2. There are two points which are required to be considered. Firstly whether recovery has been duly proved and secondly whether recovered articles are, in fact, of deceased and whether same have been duly identified by the family members of deceased.
47 As per clearcut case of prosecution, aforesaid two articles were recovered at the instance of accused Deepak from his house. PW19 ASI Shiv Narain is attesting witness and articles were recovered in his presence. He has, however, deposed that they had gone to the house of accused Rajender and at his instance and from his room, one Kada and one chain had been recovered from beneath the mattress of bed. Naturally, he had come up with wrong fact and, therefore, he was crossexamined by the prosecution and in his such crossexamination, he attempted to correct himself by claiming that Kada and chain had been recovered from the house of Deepak and not from the house of accused Rajender. He also claimed that he did not recollect properly as both accused were with them and he got confused with respect to house from where the recovery had been effected. Slipup is not as minimal as projected by this witness. After all it is question of someone's life and death. Such deposition of PW19 ASI Shiv Narain does not inspire confidence and rather makes the recovery doubtful. PW22 HC Anil Kumar has, undoubtedly, supported the case of prosecution but in cross examination he has categorically admitted that he had refreshed his memory from police file. He did not seek any permission in this regard (FIR No. 02/2008 PS Kanjhawala) page 26 of 34 from the Court. Undoubtedly, in case of murder involving lengthy investigation, it is always not possible to remember each and every fact and detail but if at all any witness really wanted to refresh his memory from the police file, he should have taken the Court in confidence and should have sought permission from the Court. Moreover, if at all HC Anil had gone to the house of accused Deepak, he would have been certainly in a position to tell whether the house was single storey or was having upper storey as well. He failed to provide with any definite answer in this regard as he claimed that he did not remember whether the house was of single storey or whether there was upper storey as well. He tried to explain that he did not remember such fact because they had visited house at night. But simply because police had gone there in the night does not mean that police official would not have been able to take note of such apparent and visible fact.
48 PW22 HC Anil admitted that he did not remember whether there was any mark or logo on such Kada. He also claimed that such type of Kada and chain were easily available in the market. He also claimed that he did not remember whether those were artificial. PW19 ASI Shiv Narain is witness to recovery but surprisingly he does not even know the time when they had reached the house of accused Deepak. He claimed that they remained at the house of accused Deepak for half an hour but he could not tell the time when they left the house. He does not know whether Kada and chain were of gold. Similarly, as per PW35 Insp. Suman Pushkarna, he could not say whether recovered Kada and chain were artificial. He also deposed that he did not collect any ownership proof from Tarun Jain to show that those articles belonged to deceased Naresh Jain. He claimed that it was wrong to suggest that in order to implicate accused Deepak, chain and Kada were planted. He also deposed that he could not tell any specific mark of identification on chain and Kada. This fact is very important. These two articles were identified by Tarun Jain and on careful perusal of case (FIR No. 02/2008 PS Kanjhawala) page 27 of 34 diary, I have come across one supplementary statement of Tarun Jain wherein he claimed that chain used to be manufactured by his brother who used to put mark NJ in such ornaments. His such statement was recorded on 22.02.2008 and in his such statement he claimed that he forgot to tell that fact to the learned Magistrate at the time of TIP. In the entire seizure memo, there is nothing to show that there was any logo or mark of NJ on such chain or Kada. Tarun Jain has entered into witness box and I have seen his testimony very carefully and in his deposition also he did not whisper even a single word regarding mark/logo of NJ. When he was shown the case property, he identified Kada as well as chain and claimed that those belonged to his deceased brother. In his crossexamination, he claimed that he did not have any ownership proof pertaining to Kada and chain. He was a jeweller and he and his brother were having jewellery shop in Rohini but still in his crossexamination, he deposed that he did not know whether chain produced was handmade or machine made or rope chain. He claimed that he did not have much knowledge about the type and quality of gold. He did not even know what white gold was. He did not know how to test the purity of the gold. He even claimed that such type of chain and Kada would be readily available in the market. All the recovery witnesses have deposed that they did not know about any mark on chain. Tarun has also not stated anything in this regard. I.O. does not remember the supplementary statement of Tarun Jain which he himself had recorded. I called for the case property and on careful scrutiny, I found mark of NJ on chain. This fact should have been borne in mind when TIP was conducted but it seems no care was taken at that time. Moreover, during trial, nobody whispered about such mark either. Thus, TIP of chain and identification of case property in view of my aforesaid discussion does not serve any real purpose.
(FIR No. 02/2008 PS Kanjhawala) page 28 of 34 Recovery of Purse of the deceased at the instance of accused persons 49 As per prosecution, on 16.01.2008, both accused persons led the police party to KaralaSultan Pur Road and they indicated towards some bushes near a kachcha passage falling between Karala and Sultan Pur claiming that purse of Naresh had been thrown by them there. At their instance such purse was recovered. Seizure memo has been proved as Ex. PW19/K and purse has been proved as Ex. P3. PW19 ASI Shiv Narain deposed that on 16.01.2008, he had gone along with Insp. Suman Pushkarna and Ct. Anil to Sultan Pur Karala Road and according to him, recovery was effected in noon time but he failed to give the exact time. PW22 HC Anil Kumar has also deposed that both accused led the police party to Kachcha Rasta on KaralaSultan Pur Road and they got recovered one purse of brown colour which was lying in the bushes. PW22 HC Anil Kumar admitted in his crossexamination that place of recovery was situated in a field and was accessible to all the persons of that area. Thus, such recovery of purse does not inspire confidence as the place of recovery is found to be accessible to one and all. Moreover, TIP of purse was also pointless as it has come on record that purse, when recovered, was found cut from below. No care was taken to conceal such special fact while TIP was held.
50 Moreover, I.O. should have also prepared site plan of the place of recovery. He had, in fact, gone with draftsman to the spot of recovery of dead body on 31.01.2008 and at that time, he could have shown such spot of recovery to Manohar Lal (Draftsman) so that court could appreciate the distance between that place and the place where dead body was found in order to see whether throwing of alleged articles at such place was possible after commission of offence. Nothing of that sort has been done either.
(FIR No. 02/2008 PS Kanjhawala) page 29 of 34 PRESENCE OF LORAZEPAM IN THE VISCERA OF DECEASED.
51 FSL report has been proved as Ex. PW32/A and as per such report, when the viscera of deceased was examined, Lorazepam was found in the stomach, in small intestine, liver, spleen, kidney and blood of the deceased. Learned Addl. P.P. has contended that such crucial fact clinches the issue in favour of the prosecution. Undoubtedly, result of FSL indicates that Lorazepam was consumed by the deceased that day. However, such fact, in itself, does not connect the accused persons. I have already noted above that the testimony of Vikas Jain (proprietor of medical store) is not believable and the bill is also found to be manufactured one. Secondly, there is big question mark whether vehicle had been recovered at the instance of accused persons or had already been seized a day before the arrest of accused persons. Independent attesting witness has turned hostile and has not supported the case of prosecution and has even denied the recovery of Lorazepam from that Maruti car and, therefore, forensic report by itself does not take the case of prosecution anywhere. Moreover, Lorazepam is a tablet which is taken by a person suffering from depression or anxiety and the prosecution should have demonstrated by leading positive evidence that deceased was not under any sort of anxiety or depression or that he never used to consume any such tablet. Relatives of Naresh Jain were the best persons to answer in this regard but PW1 Tarun Jain has not uttered even a single word in this regard and similarly, PW3 Deepak Jain has also not uttered even a single word in this regard. It is also matter of common knowledge that Lorazepam is a drug with potential for misuse. Recreational misuse takes place when the drug is taken to achieve a "high". Therefore, a word was must from his relatives to the effect that to the best of their knowledge, Naresh never used to take any such drug.
(FIR No. 02/2008 PS Kanjhawala) page 30 of 34
MOTIVE BEHIND MURDER
52 According to prosecution, accused were in need of money
and they knew that Naresh Jain was affluent man who used to wear lots of ornaments and therefore, they wanted to rob him. Thus prosecution has come up with a specific motive behind the murder. Ld. Addl P.P. has also contended that there was account of accused Rajinder@ Dancer with jewellery shop of victim and accused Rajinder did not want to clear the payment. However, such fact has not been proved. Tarun Jain was the best witness in this regard but he has nowhere stated that accused Rajinder owed them money. Account book has also not been proved in the desired manner. There is no page number in such a/c book. There is no date either. It is claimed to be in the hand of deceased but court does not have the benefit of comparing the same with admitted writing of deceased either. Such a/c is not in the hand of Tarun Jain and there is no seal, stamp or name of shop of victim on such a/c book and, therefore, it is not possible to say that accused was to make any payment to victim. Moreover, robbery motive also goes as when body was fished out, there were four rings in the fingers of victim. Two rings were of gold and two were of silver. If at all robbery angle was involved, accused would not have left those ornaments behind.
53 Motive, in a case of murder based on direct evidence, is of little importance but if the case is based on circumstantial evidence, then motive assumes greater magnitude. By and large, there is motive behind every criminal act and that is why Investigating Agency as well as the Court while examining the complicity of an accused tries to ascertain as to what was the motive on the part of the accused to commit the crime in question though only perpetrator knows what exactly travels through his mind.
(FIR No. 02/2008 PS Kanjhawala) page 31 of 34 54 In the case of TARSEEM KUMAR V. DELHI ADMN, 1995 CRI. L. J. 470 SC it has been held that in a case based on
circumstantial evidence , motive for committing crime on part of accused assumes greater importance.
55 In RAMESH GOVIND THAKUR V. STATE OF MAHARASHTRA 2008 CRI. L. J. 2169 BOM also, it has been made clear that in a case based on Circumstantial evidence, failure to prove motive is a plus point in favour of accused. It was observed that motive may not be relevant in a case where the evidence is overwhelming, but it is a plus point for the accused in cases where the evidence is only circumstantial.
56 Here the state has come up with a specific motive but has not been able to prove the same.
57 I have seen the testimony of other witnesses who were involved with investigation. Body was fished out and such fact does not seem to be debatable. Crime team had reached there and photographs were taken. FIR was registered. Dead body was got identified and post mortem was got conducted. As per PM report, cause of death was asphyxia consequent to ligature pressure over neck structures by other party. Thus death is indeed homicidal.
58 However, recording of disclosure statements of accused is very crucial fact as these led to aforediscussed recovery. It is, however, not clear as to where theses were recorded. According to PW22, disclosure of accused Deepak was recorded at his house but I.O. does not remember this fact at all. According to him, it might have been even recorded at PS. Disclosure of Rajender was allegedly recorded at his Dancecentre but no independent witness was joined despite the fact that his centre was located in a thickly populated area.
(FIR No. 02/2008 PS Kanjhawala) page 32 of 34 59 It has already been noted above that call details on record
have not been proved in consonance with legal provision. Moreover, written request on record are of month of April whereas record had been collected in March 2008 itself.
60 It is trite law that when the evidence against accused, particularly when charged with a grave offence like murder, consists of circumstances and not ocular evidence, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from probative force of facts and circumstances should be seen.
61 The evidence which has been adduced in this case is far from satisfactory and it suffers from number of infirmities. The circumstances proved in this case are not of such a nature as to capable of supporting the exclusive hypothesis that accused are guilty of the crime they have been charged with. The circumstances relied upon to establish the involvement of the accused are neither proved nor do they clinch the issue of guilt. Some of the links are found to be littered, some are feeble and some are vulnerable. Hostile testimony of some of the important public witnesses also cast a spell of gloom over the case of prosecution story. Last seen evidence is not very convincing either. Entrustment of car does not stand proved. Making of call from STD Booth does not stand proved. Recovery of car and strip of Lorazepam does not stand proved convincingly. Motive also does not stand established. Although there may be a grave suspicion against them, still prosecution is bound to establish the facts from which the Court can reasonably arrive at a conclusion that the offence was committed by the accused and accused alone. Suspicion, howsoever grave, cannot take the place of legal proof. The Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. There is a long (FIR No. 02/2008 PS Kanjhawala) page 33 of 34 distance between may be true and must be true and prosecution needs to cover the same always.
62 In a case of circumstantial evidence, it is absolutely essential that the entire chain of circumstances or in other words, the links that form part of the chain must be individually and conclusively established and it is that chain which must inextricably link the accused with the offence and furthermore, that it should lead to only one conclusion that is compatible with the guilt of the accused. If the chain of circumstance consists of too few links or if the links themselves are weak and unreliable the law is to the effect that the benefit has to devolve on the accused.
63 I, therefore, grant benefit of doubt to both of the accused. They both are acquitted of all the charges accordingly. They be released if not required in any other case.
64 File be consigned to record room.
Announced in the open Court on this 08th day of April, 2010.
(MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer District: Rohini Courts: Delhi
(FIR No. 02/2008 PS Kanjhawala) page 34 of 34