Delhi District Court
State vs . 1. Pankaj @ Pinchoo on 25 August, 2012
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ASJ02/SE/SAKET COURT/
NEW DELHI
IN RE: ID No. 02406R0033412011
Sessions Case No. 07/11
FIR No. 325/10
PS: Govindpuri
State Vs. 1. Pankaj @ Pinchoo
S/o Sh. Surender
R/o H. No. 129, Sukar Bazaar,
Uttam Nagar, New Delhi.
2. Mala Rani
W/o Sh. Suresh Kumar
R/o 932, Gali No.8
Govindpuri, New Delhi.
3. Thakur Dass @ Raja @ Sonu
S/o Sh. Sri Ram
R/o Mohalla Kirti Nagar,
Kurukshetra (Haryana).
Date of institution : 04.03.2011
Date when arguments were heard : 30.07.2012
Date of Judgment : 25.08.2012
JUDGMENT
Perhaps blood does not remain so thick and sticky now, to SC No. 07/11 1 of 27 keep to relatives connected with it (blood), glued at their positions or knot of relationships has so slackened, unable to withstand the heat of sensual lust. Accused Pankaj is alleged to have killed his own cousin 'Sunny' (son of maternal uncle) in connivance with his aunt (accused Mala Rani), who is also step mother of victim and one of his friends (accused Thakur). Same accused (Pankaj) is also claimed to have confessed before police having earned consent of his said aunt for sexual relationship by giving ear to the latter's grievances. Accused Mala Rani is stated to have blamed her husband for laughing down amorous advancement by said Sunny (victim) and for giving undue attention to said son, at the cost of children born from her loins.
On 04.10.2010, one Shri Kartar Chand son of Sh. Vir Bhan, resident of B135/136, Transit Camp, Govindpuri, New Delhi lodged a complaint in PS Govindpuri about missing of his grandson namely Sunny. The information was recorded as DD No. 9A and entrusted to ASI Hari Singh for investigation. On 11.10.2010, Sh. Suresh Kumar father of victim gave a statement to the police, saying that his son Sunny aged about 18 years, height 5 feet, face round, wearing black pant as well as black and red colour sandals, who was residing with Sh. Kartar Singh (grand father) had left latter's house on 30.09.2010 at 7.30 pm, without informing anybody. He has searched for the boy with all of his relatives, but same could not be found. The complainant expressed his doubt that his son would have been kidnapped by someone, by SC No. 07/11 2 of 27 enticement. Further investigation was marked to SI Bhanu Prakash.
As per case of prosecution, IO obtained call details of mobile phone belonging to accused Pankaj @ Pinchoo who is a nephew i.e. sister's son of complainant Suresh Kumar. After analysis, it was found that on 30.09.2010 i.e. day on which victim Sunny went missing, he i.e. accused Pankaj @ Pinchoo, was in regular touch with the victim telephonically. Both of them talked to each other several times. From the tower position i.e. call ID, it was noticed that accused Pankaj had come from Dasana (Ghaziabad) to Govindpuri, Delhi and gone back to Dasana, Mussoorie, Ghaziabad again. From the call details of Sunny, it was observed that the latter had gone from Govindpuri area to Dasana (Ghaziabad). At about 8.30 pm on 30.10.2010, both of them i.e. accused Pankaj and victim Sunny were in Dasana Industrial Area, Ghaziabad. On 30.09.2010 at 20:35:32, the position of Pankaj was at Property No. 712, Khasra No. 526, Vill. Mussoori, Dasana Industrial Area, Ghaziabad and he remained there till 23:57:44. Similarly, victim Sunny on 30.09.2010 at 20:29:31 was at 2079, Ghaziabad, Dasana Coke Airtel. After that, there was no call from the phone of victim. On being interrogated, accused Pankaj @ Pinchoo gave a disclosure statement, admitted having killed Sunny after hatching a conspiracy with co accused Mala Rani and Thakur.
Accused Mala Rani and Thakur also admitted their offence on being interrogated by the police.
SC No. 07/11 3 of 27 Further investigation was assigned to Insp. Kailash Bisht, who visited the office of District Magistrate, Ghaziabad on 10.11.2010 and filed an application for permission to carry out exhumation proceedings. On 11.11.2010, accused Pankaj led the police to a factory situated at C60, UPSIDC, PS Mussoori, Ghaziabad. Sh. B. K. Dubey, Tehsildar (Hapur) conducted exhumation proceedings, on the pointing of accused Pankaj. A dead body stated to be of deceased Sunny was recovered. The dead body was sent to District Mortuary, Ghaziabad. Photographs of the digging were taken apart from video recording of same. On 12.11.2010, post mortem was conducted on the dead body.
On 15.11.2010, on the pointing of accused Thakur, a spade (phawda) allegedly used in digging pit to bury the dead body was recovered. Call details of mobile phone used by accused Mala Rani and Thakur were analysed and it was found that on 29.09.2010 and 30.10.2010, both of them talked to accused Pankaj, a number of times.
After completion of investigation, police filed report under Section 173 Cr.P.C. indicting all three accused, for offence punishable under Section 365/364/302/201/120B/34 IPC. The accused persons were charged by order of this court dated 05.04.2011, for having committed murder of Sunny after entering into a criminal conspiracy with each other, punishable under Section 302/120B IPC. Same were also charged for offence of causing disappearance of evidence of crime, with intention to screen the offenders i.e. themselves by burring the dead SC No. 07/11 4 of 27 body of deceased punishable under Section 201/34 IPC. Accused Pankaj @ Pinchoo was also charged for offence of abducting the victim Sunny having entered into conspiracy with coaccused, punishable under Section 364/120B IPC. All of accused persons pleaded not guilty and claimed trial when charge was read over and explained to them.
In order to bring home its case, prosecution examined Smt. Ruksana as PW1, Suresh Kumar as PW2, Raj Kumar as PW3, Ashok Kumar as PW4, Lady Ct. Saroj Nehra as PW5, Lady Ct. Komal as PW6, Kartar Chand as PW7, Dr. R. P. Singh as PW8, Dr. Ashok Kumar as PW9, Sh. Brij Kishore Dubey as PW10, SI Mahesh Kumar as PW11, Manish Kumar Singh as PW12, HC Jagat Singh as PW13, HC Bijender Singh as PW14, Ct. Jeet Singh as PW15, Deepak as PW16, Ct. Kuldeep as PW17, HC Jaivir Rathi as PW18, Col. A. K. Sachdeva as PW19, SI Om Prakash as PW20, SI Bhanu Parkash as PW21, Ct. Sanjeev as PW22, Ct. Yogender Sharma as PW23, Vishal Gaurav as PW24, HC Manoj as PW25, Insp. Kailash Bisht as PW26 and ASI Hari Singh as PW27.
Sh. Kartar Chand (PW7) verified report given by him on 04.10.2010 about missing of his grandson Sunny. As per him, on 30.09.2010, Sunny had left his house at around 6.00/6.30 pm without disclosing as where he was going. The victim was wearing one black colour Tshirt, black colour pant as well as sandal of red and black colour.
SC No. 07/11 5 of 27 Sh. Suresh Kumar (PW2) is father of deceased and verified his complaint Ex.PW2/A having been lodged on 04.10.2010. It is stated on oath by this witness also that victim Sunny did not return home on 30.09.2010. He searched for him on his own. He also called the victim on his mobile phone till about 1.00 am (in the night) but same was switched off. This witness also disclosed about a phone call received from the police on 11.11.2010 asking him to reach Sangam Ice factory, Ghaziabad. He went there along with his brother Ashok. Lot of people were present outside factory. Police officials from Delhi and Ghaziabad as well as one Tehsildar Mr. Dubey were present there. Police asked accused Pankaj to open the lock of factory, which he opened. Pankaj led the police inside the factory near 5th / 6th pillar in the gallery, in its Southern side. On the pointing of said accused, the earth was dug and dead body of his son Sunny was taken out. He identified the dead body of his son on the basis of his hair, bracelet, kalawa and jeans of black colour which the deceased was wearing. The process of digging was videographed and photographed. Tehsildar prepared a panchnama about recovery of dead body. He signed the documents of dead body and panchnama prepared by Tehsildar. Pointing out memo and recovery memo of dead body was Ex.PW2/B and Ex.PW2/C. On 12.11.2010, after post mortem was conducted on the dead body, same was handed over to him. Handing over memo in this regard is Ex.PW2/D. This witness also disclosed about having given blood SC No. 07/11 6 of 27 sample on 22.11.2010 on the asking of police for the purpose of DNA test. PW2 identified articles of case property i.e. one Tshirt, one pant with belt, one underwear, a pair of sandals, one iron kada and one bracelet as belonging to his son and again one plastic wire of the case property allegedly recovered along with dead body. All these are Ex.P2/1 to Ex.P2/7.
Ashok Kumar (PW4) is brother of complainant Suresh Kumar and verified having reached at Sangam Ice factory, Ghaziabad on 11.11.2010 along with the complainant. This witness had also verified recovery of dead body from inside the factory near pillar no. 5 and 6 in the gallery on the pointing of accused Pankaj and again that dead body was identified by the complainant on the basis of clothes and sandals of deceased.
Raj Kumar (PW3) was a photographer and deposed about accused Pankaj having pointed out a place disclosing that he had buried a dead body there. He i.e. PW3 took photographs of exhumation proceedings and also having photographed the incident. The photographs are Ex.PW3/A1 and Ex.PW3/A14 and CD of photograph is Ex.PW3/B. Sh. Brij Kishore Dubey (PW10) was a Tehsildar posted at Garh Mukhteshwar, District Ghaziabad, U.P. It is sworn on oath by this witness that on 11.11.2010, he was posted as Tehsildar at Tehsil Hapur, Janpath Ghaziabad, U.P. On that day on the direction of Area SDM, he SC No. 07/11 7 of 27 reached an Ice factory, UPSIDC, Ghaziabad, PS Mussoorie, U.P. at about 4.00 pm. Many public persons had gathered there along with the police of PS Mussoorie as well as Delhi police. Accused Pankaj @ Pinchoo was brought there in police custody. On the identification of said accused, lock of said factory was open and said accused led him and police party inside the factory and pointed out a place in the factory, on the basis of which digging work was started. Police had brought a photographer, who snapped the photographs and videographed the proceedings. Father and uncle of deceased were also present. Dead body of a boy was recovered from the place which was pointed out by the accused. It was near 5th or 6th pillar of the factory, where earth was dug. An electric wire was wrapped around the neck of deceased. Father and uncle of deceased identified the dead body as of Sunny on the basis of Tshirt, jeans and sandal, which the deceased was wearing. He prepared panchnama Ex.PW2/C signed by him at point X. The dead body was sent to District Mortuary, Ghaziabad through local police after sealing the same in a plastic bag. Memo in this regard is Ex.PW10/C. The doctor was requested to conduct post mortem on the dead body and to give sample for DNA. His request to the doctor in this regard is Ex.PW10/D. Ct. Jeet Singh (PW15), SI Om Prakash (PW20), Ct. Yogender Sharma (PW23) and Insp. Kailash Bisht (PW26) also verified a dead body having recovered from Sangam Ice factory, C60, SC No. 07/11 8 of 27 UPSIDC, PhaseIII, Ghaziabad on the pointing of accused Pankaj.
Post mortem is stated to have been conducted by a Medical Board comprising Dr. R. P. Singh (PW8) and Dr. Ashok Kumar (PW9). As per former i.e. PW8, on 12.11.2010 a Medical Board was constituted by the hospital authorities on the request of police comprising himself as well as Dr. Ashok Kumar. Both of them conducted post mortem on the dead body. During the proceedings, it was observed that there was mud and salt on the dead body, which was highly decomposed. They noticed a wound 10 X 4 cm size over left side face extended to left ear upto face 5 cm lateral to left angle of mouth. One electric wire was tied around the neck. The clothes on the dead body were; one Tshirt, one pant with belt, underwear, one pair of sandal, one iron kada, one bracelet, one plastic wire and kalawa. All these were sealed with the seal of hospital and handed over to the police. Sternum bone of deceased was also sealed and handed over to the police for DNA examination. As per their opinion, the cause of death could not be ascertained as the body was decomposed. Detailed post mortem report was prepared by them which is Ex.PW8/A. Dr. Ashok Kumar (PW9) also tautologized the facts disclosed by Dr. R. P. Singh (PW8).
SI Mahesh Kumar, Draftsman, Crime Branch (PW11) stated about having prepared a scaled site plan Ex.PW11/A by him on 07.01.2011 on the basis of rough notes having taken by him after visiting SC No. 07/11 9 of 27 spot i.e. C60, Ice factory, UPSIDC area, Ghaziabad on 20.12.2010. Site plan is Ex.PW11/A. HC Jagat Singh (PW13) was Duty Officer in PS Govindpuri on 11.10.2010 and deposed to have registered FIR no. 325/10 in this case on the basis of rukka given by ASI Hari Singh. Copy of FIR is Ex.PW13/A. HC Bijender Singh (PW14) was a DD Writer in same police station on 04.10.2010 and verified having recorded DD no. 9A with regard to missing of one Sunny son of Sh. Suresh Kumar, on the basis of statement given by one Kartar Chand. Copy of said DD is Ex.PW14/A. Ct. Yogender Sharma (PW23) deposed about post mortem having been conducted on the dead body of deceased and that Ilaka Tehsildar handed over four sealed jars to him which he deposited in the mortuary.
Ct. Kuldeep (PW17) stated on oath that on 13.11.2010, he joined investigation of this case along with IO Insp. Kailash Bisht, SI Bhanu Prakash and Ct. Jeet Singh. Accused Pankaj led them to house no. 355/8, Kirti Nagar, Kurukshetra, Haryana from where accused Thakur was apprehended. Accused Thakur Dass gave a disclosure statement Ex.PW17/C, on being interrogated by IO. The accused disclosed about one spade (phawda) having been concealed near factory of accused Pankaj situated at C60, UPSIDC area, Ghaziabad, U.P. On SC No. 07/11 10 of 27 15.11.2010, he again joined investigation along with Insp. Kailash Bisht etc. Accused Thakur Dass led police party to a place at a distance of about 50 meters from the factory mentioned above and got recovered one spade from the bushes near a puliya. It was seized by the IO and kept in a bag sealed with seal of KB. Seizure memo in this regard is Ex.PW15/A. Ct. Jeet Singh (PW15) and SI Bhanu Parkash (PW21) also verified disclosure statement given by accused Thakur Dass and also recovery of a spade at the instance of said accused.
Manish Kumar Singh (PW12) is Asstt. Nodal Officer, Tata Tele Services Ltd., who brought customer application form along with ID proof in respect of mobile number 8950657441 in the name of Shri Ram. Customer application form is Ex.PW12/A and copy of ID proof i.e. ration card is Ex.PW12/B. This witness brought computerised call details of aforementioned phone for period 29.09.2010 - 03.10.2010 i.e. Ex.PW12/C and again certified copy of call site ID address which is Ex.PW12/D. Certificate under Section 65B of The Indian Evidence Act about correctness of call details mentioned above is Ex.PW12/E. Sh. Deepak (PW16) is another Asstt. Nodal Officer from Vodafone. This witness brought summoned record i.e. customer application form along with copy of ID proof in respect of mobile phone no. 9953103855 in the name of Smt. Mala wife of Sh. Suresh Gulati. Copy of application form is Ex.PW16/A and copy of ID proof is Ex.PW16/B. PW16 also brought in record certified computerised call details of aforementioned phone SC No. 07/11 11 of 27 from 29.09.2010 to 30.09.2010 i.e. Ex.PW16/C as well as copy of Cell site list of Vodafone in Delhi Ex.PW16/D. Certificate about correctness of call details mentioned above is Ex.PW16/E. Sh. Vishal Gaurav (PW24) was also Nodal Officer, Bharti Airtel Ltd. and stated above call details of mobile phone no. 9910709514 for the period of 29.09.2010 to 03.10.2010 belonging to one Ruksana Khatoon Ex.PW24A (7 pages). This witness also brought customer application form Ex.PW24/B and certificate under Section 65B of The Indian Evidence Act Ex.PW24/C. Col. A. K. Sachdeva (PW19) was Nodal Officer, Reliance Communications Ltd. This witness brought computerised call details of mobile phone no. 9350607626 in the name of Firoz Khan for period 29.09.2010 to 03.10.2010. Same is Ex.PW19/A and call details of phone no. 9310073076 from 29.09.2010 to 03.10.2010. Said phone was registered in the name of Manoj Kumar. Call details are Ex.PW19/B. The location chart of Reliance Communication is Ex.PW19/C. Certificate about correctness of call details is Ex.PW19/D. HC Jaivir Rathi (PW18) stated about arrest of accused Pankaj on 09.11.2010 and verified the fact that accused Pankaj gave disclosure statement Ex.PW18/B and Ex.PW18/C to the IO during interrogation. This witness also verified that on 12.11.2010, he had gone to Mortuary, Ghaziabad. One constable of U.P. Police namely Yogender met them who handed over them five sealed jars and three sample seals to the IO which were seized by the latter vide seizure memo SC No. 07/11 12 of 27 Ex.PW18/D. Ct. Sanjeev (PW22) stated on oath that on 22.11.2010, he received a sealed plastic jar along with sample seal from Maalkhana of PS Govindpuri on the direction of IO Insp. Kailash Bisht and took the same and deposited in FSL Rohini. As per him, till pulanda and sample remained in his custody, same are not tempered with.
HC Manoj (PW25) was MHC(M) in PS Govindpuri on 11.11.2010 and verified three sealed jars having been deposited in Maalkhana by Insp. Kailash Bisht. Entry in this regard was made at Sr. No. 879 in Register no. 19. Again, six another sealed pulandas were deposited in the same Maalkhana by same IO on 12.11.2010. Entry in this regard was made at Sr. No. 882 in that register. Further, one mobile phone was deposited by the IO mentioned above in the Maalkhana on 14.11.2010. Entry in this regard was made at Sr. No. 900 in Register No.
19. All of these pulandas were sent to FSL, Rohini through Ct. Kuldeep on 15.12.2010 vide road certificates bearing Sr. No. 108 and 109. Copy of entries in register no. 19 are Ex.PW25/A (Colly.).
ASI Hari Singh (PW27) stated about one Kartar Singh having come to PS Govindpuri on 30.09.2010 and gave a statement about missing of his grandson Sunny. He i.e. PW27 recorded DD No. 9A in that regard.
Insp. Kailash Bisht (PW26) was IO of the case and stated about the investigation having been done by him. As per this witness on SC No. 07/11 13 of 27 10.11.2010, he received case file of this case for investigation. On that very day, he went to house of accused Mala Rani. Same was interrogated and gave a disclosure statement Ex.PW6/C. She was arrested by him vide arrest memo Ex.PW6/A. PW26 further stated about him having went to office of District Magistrate, Ghaziabad along with accused Pankaj and filed application in that office which is Ex.PW26/A. On 11.11.2010, he along with SI Bhanu Prakash, Ct. Jeet Singh, Ct. Har Gyan, Ct. Raj Karan, accused Pankaj and videographer Rajkumar went to PS Mussoorie and then to factory at C60, UPSIDC, Mussoorie. On the pointing of the accused Pankaj, exhumation proceedings were done by Tehsildar Sh. B. K. Dubey. Father of deceased Sanjay Kumar was among the people gathered at spot, who identified the dead body of Sunny having been recovered in the proceedings of digging done at the instance of accused Pankaj. The witness further stated about accused Pankaj having led to Derajhal Canal and tried to search a mobile phone, belonging to said accused but could not found. On 13.11.2010, as per this witness, accused Pankaj led him and other police persons to Kurukshetra. On the pointing of accused Pankaj, accused Thakur Dass was apprehended, who gave a disclosure statement and on the pointing of this accused i.e. Thakur Dass on 15.11.2010, one spade (phawda) was recovered from bushes at a place situated at a distance of 100 meters from that factory. The IO also verified having prepared site plan of recovery of said spade Ex.PW26/D SC No. 07/11 14 of 27 and again that on 22.11.2010, exhibits were sent to FSL Rohini for DNA Fingerprinting along with blood sample of Suresh Kumar i.e. father of deceased which was taken by him on same day i.e. 22.11.2010. On 13.12.2010, this witness further stated about eight sealed pulandas having sent to FSL Rohini through Ct. Kuldeep Singh but due to some technicality, same could not be deposited and were sent again on 15.12.2010. He collected the report of FSL Ex.PW26/G, Ex.PW26/H and Ex.PW26/I but on 20.12.2010, PW26 went to Ice factory mentioned above along with SI Mahesh Kumar. The latter took measurement of spot and prepared scaled site plan on the basis of same which is Ex.PW11/A. This witness identified the articles of case property i.e. mobile phone (Ex.P5/1) having seized on being produced by Ruksana, spade is Ex.P15/1 and clothes seized during investigation i.e. one pant with belt which was smeared with mud and sticky material of dark colour, one other cloth which was heavily crushed and smeared with mud and sticky material appearing to be an underwear, one other cloth similarly crushed heavily and smeared with mud and sticky material, appearing to be a vest, one pair of sandals (make campus) having brown colour steps, one iron kada, one bracelet and two pieces of electric wire (black colour) as same, which were recovered along with dead body. All these articles are Ex.P2/1 to Ex.P2/7.
In their statements recorded U/s 313 Cr.P.C, the accused persons denied the evidence appearing on record, stating the same as SC No. 07/11 15 of 27 wrong. They did not opt to lead any evidence in their defence.
It is contended by Ld. Counsel representing accused Pankaj @ Pinchoo and Thakur Dass @ Raja @ Sonu that story of prosecution about accused Pankaj having admitted to have killed the victim or buried the dead body in factory situated at C60, UPSIDC, Mussoorie, Ghaziabad, U.P, is suspicious. As per prosecution, the accused Pankaj gave disclosure statement before the police on 09.11.2010, while the dead body was recovered on 11.11.2010. If all this had happened, there was every possibility that dead body would have been disposed of, after removing it from that place as other accused were still at large. Accused Mala Rani was arrested on 10.11.2010 and coaccused Thakur Dass was arrested on 13.11.2010. Even otherwise, despite having been disclosed by accused Pankaj that he had buried the dead body in a factory situated at C60, UPSIDC, Mussoorie, why said place was left unsecured till 11.11.2010 when it was dug on the pointing of said accused.
Ld. Counsel pointed out some improvements/ contradictions in the statements of witnesses e.g. father of deceased (PW2) stated in the court that he identified the dead body as that of his son on the basis of his hair, bracelet and kalawa, which he was wearing in his hand and his black colour jeans, while in his statement recorded U/s 161 Cr.P.C, this witness had not disclosed that deceased was identified by him after seeing his hair. Similarly, in said statement to the police, PW2 had mentioned the sandals of deceased, seeing which SC No. 07/11 16 of 27 he identified the dead body but this fact was not disclosed by the witness in his statement recorded in the court. Again PW2 mentioned about deceased Sunny having not returned on 30.09.2010 till 11.00 pm, when he used to return till then and he searched for him on his own for quite some time till about 1.00 am (in the night). He called the victim on his mobile phone, but same was switched off. All these facts were not told by this witness to the IO, who recorded his statement U/s 161 Cr.P.C.
In the opinion of Ld. Defence Counsel, it is not proved on the file as how the lock upon the gate of factory No. C60, UPSIDC, Mussoorie, Ghaziabad, U.P, was opened. Sh. Ashok Kumar (PW4) stated to be an eye witness, stated that lock of factory was opened by accused Pankaj @ Pinchoo, but he did not know as who gave him the key of lock, while as per Sh. Suresh Kumar (PW2) another eye witness, the accused Pankaj @ Pinchoo had taken out the key of lock of main gate from his pocket. Sh. Brij Kishore Dubey (Tehsildar), on whose directions, the exhumation proceedings were done, did not know as to whether any lock was put on the gate of factory or about the keys with which it was opened, while as per Inspector Kailash Bisht (PW26, the IO of the case), the key of entrance gate of factory C60, UPSIDC, Mussoorie, Ghaziabad was found concealed under the door of gate. The witnesses examined by the prosecution are not unanimous as who handed over the keys of gate of this factory. In his opinion, no such key SC No. 07/11 17 of 27 was in the possession of accused Pankaj, otherwise same would have been shown as an article recovered from said accused, in his personal search memo. It is again the plea of Ld. Counsel that it is not established on record as to whom such key was handed over by the IO, after gate was closed in the last.
As per Ld. Counsel, prosecution failed to establish that accused Pankaj had any motive to kill the victim who was none but his own relative i.e. son of his maternal uncle.
As per Ld. Defence Counsel, the evidence on record is very weak. Chain to implicate accused persons is not complete and hence none of accused can be convicted in this case. Ld. Counsel relied upon following cases titled as Sharad Birdhi Chand Sharda vs. State of Maharashtra (1984) SCC 116;
"where it was held by the Apex Court that following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:
(i) the circumstances from which the conclusion of guilt is to be drawn must be or should be and not merely "may be" fully established,
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, i.e. to say, they should not be explainable of any other hypothesis except that the accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete SC No. 07/11 18 of 27 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.
.......... where two views are possible on the evidence on record, one pointing to the guilt of accused and other his innocence, the accused is entitled to have the benefit of one which is favorable to him."
A case titled as Shankar Lal Gyarsi Lal Dixit vs. State of Maharashtra AIR 1981 SC 765. Dealing with a case of circumstantial evidence, it was mandated by the Apex Court that in such a case, it is necessary for the court to find whether the circumstances on which the prosecution relies are established by satisfactory evidence, often described as clear and cogent and whether the circumstances are of such a nature as to exclude every other hypothesis, save the one that the appellant is guilty of the offence, of which he is charged. In other words, the circumstances have to of such a nature as to be consistent with the sole hypothesis that the accused is guilty of the crime imputed to him.
There is no quarrel over the findings given by the Apex Court in cases referred above and about the proposition of law established therein. It is well settled till now that the chain of circumstances should be complete to connect the accused with the offence, same has been charged for. True, none of witnesses examined by prosecution has claimed to have seen the accused persons SC No. 07/11 19 of 27 committing murder of victim. Case of prosecution rests on circumstantial evidence. Let this court sift the evidence to see if that chain of circumstances is complete or not.
No doubt, police did not seal/ cordoned of the factory where accused Pankaj disclosed to have buried the dead body of victim. All this left scope for tampering with evidence i.e. by removal of dead body. Trite it to say that coaccused Thakur Dass @ Raja @ Sonu and Mala Rani had not been arrested when coaccused Pankaj @ Pinchoo is stated to have given disclosure statement to the police. In such a circumstance, there were chances that said accused i.e. Thakur Dass @ Raja and Mala Rani would have tried to dispose of dead body, after removing the same from the place, disclosed by accused Pankaj @ Pinchoo. Whatsoever it may be, it was a lapse on the part of police, but case of prosecution cannot be thrown away as a waif, merely due to lethargy on the part of Investigating Team.
True, Ld. Counsel pointed out some improvements made by the witnesses in their examination in the court upon statements given to the police U/s 161 Cr.P.C, but no such improvement was so material making the testimony of witness untruthful.
I do not find it a material discrepancy if witnesses examined by prosecution were not unanimous as from where accused Pankaj took out keys of lock, put on entrance gate of factory. All of witnesses have verified that lock on the gate of factory was opened by SC No. 07/11 20 of 27 accused Pankaj @ Pinchoo. The latter is seen opening the lock in a photograph Ex.PW3/A14 which is proved to have been correct by PW3. Moreover, it is disclosed by the IO in his cross examination that the keys of lock were handed over by him to the neighbors, after the gate was again locked, at the end of proceedings.
Accused Mala Rani is second wife of Sh. Suresh Kumar, father of deceased. Accused Pankaj @ Pinchoo is alleged to have disclosed to the police that husband of Mala Rani was not treating the latter properly. He used to care much for Sunny (victim) than the children born from Mala Rani. Despite complaints from Mala Rani, her husband did not care much for her and due to this reason, accused Mala Rani confided with accused Pankaj @ Pinchoo. Both of them developed intimacy and established physical relations. On the asking of accused Mala Rani, Pankaj @ Pinchoo killed Sunny to earn faith of said Mala Rani. If prosecution failed to prove all this story, simply by saying that prosecution has failed to prove the motive, the accused cannot be acquitted merely on this ground, when the offence has been proved by other evidence. It was held by the Apex Court in case Nachhitar Singh Vs. State of Punjab 1974 SCC (Cri.) 874 that the failure of prosecution to establish motive for the crime does not mean that the entire prosecution case has to be thrown over board. It only casts a duty on the court to scrutinise the other evidence, particularly of the eye witnesses, with great care.
SC No. 07/11 21 of 27 As per HC Jaivir Rathi (PW18), after interrogation, accused Pankaj @ Pinchoo gave disclosure statement Ex. PW18/B and Ex. PW18/C. This fact is verified by the IO of the case also. If said statement is taken as true, the accused persons buried the dead body in factory mentioned above and scattered salt on the dead body from two salt bags taken from that factory. Dr. R.P. Singh (PW8) and Dr. Ashok Kumar (PW9) while conducting postmortem on the dead body, found the same having been smeared with mud and salt. In this way, said disclosure statement to the extent of recovery of salt and of dead body becomes admissible.
As discussed above, Sh. Suresh Kumar (PW2), father of deceased, Sh. Ashok Kumar (PW4), Sh. Brij Kishore Dubey (PW10), Ct. Jeet Singh (PW15), SI Om Prakash (PW20) and Inspector Kailash Bisht (PW26) are stated about accused Pankaj @ Pinchoo having pointed to a place between Pillar No.5 and 6 in factory premises No. C60, UPSIDC, Mussoorie, Ghaziabad, U.P and on the pointing of same, digging work was done and a dead body was recovered. As per Sh. Brij Kishore Dubey (PW10), under whose directions exhumation proceedings were done, the deceased was wearing Tshirt, jeans and sandals. An electric wire was found around the neck of dead body. The dead body alongwith all these articles/ clothes was sealed in a plastic bag by his seal. IO Inspector Kailash Bisht (PW6) also deposed before the court that the dead body was kept in a white bag and was sealed by SC No. 07/11 22 of 27 seal of Ilaka Tehsildar by his own seal. It was sent to District Mortuary for postmortem through Ct. Yogender. The latter i.e. Ct. Yogender also verified fact mentioned above in his deposition. Sh. Rajkumar (PW3), a photographer stated to have taken photographs of proceedings which are Ex. PW3/A1 to Ex. PW3/A14. Photographs Ex. PW3/A12, PW3/A13 and PW3/A14 also show a shirt and pant with belt over the dead body and again one bracelet like object in his right wrist. Similarly, Dr. R.P. Singh (PW8) and Dr. Ashok Kumar (PW9) who conducted postmortem, found following clothes/ articles on the dead body i.e. one tshirt, one pant with belt, underwear, one pair of sandal, one iron kara, one bracelet and one plastic electric wire and kalawa. Father of deceased Sh. Suresh Kumar and uncle of same namely Sh. Ashok Kumar are stated to have identified the dead body on the basis of his hair, bracelet, kalawa, wearing clothes, particularly black colour jeans. The fact that a missing report was given by the grandfather of victim and similar complaint which was lodged by father of same Sh. Suresh Kumar, is well proved from the statements of witnesses stated above i.e. Kartar Chand (PW7) and Sh. Ashok Kumar (PW4).
I see no reason to disbelieve testimony of witnesses examined by prosecution. No material contradictions appeared in their statements. In this way, it is well established on the record that at the instance and on the pointing of accused Pankaj @ Pinchoo, dead body of a human being was recovered from a place near 5th and 6th Pillar in SC No. 07/11 23 of 27 gallery of factory premises No. C60, UPSIDC, Masoori, Ghaziabad and that body was of deceased was Sunny, son of Sh. Suresh Kumar and grandson of Sh. Kartar Chand. As discussed above, blood sample of Suresh Kumar i.e. father of deceased was taken for DNA test and the doctor who conducted postmortem on the dead body, took sternum bone of deceased and handed it over to police after being sealed for DNA examination. A report of Sh. A.K. Srivastava, Assistant Director, Biology, DNA Unit, Forensic Laboratory, Govt. of NCT of Delhi, Rohini, Delhi (Ex. PW26/G) has been filed. As per it, the DNA profile from the source of Ex. '2' (blood sample of Mr. Suresh Kumar) is the biological father of source of Ex. '1' (sternum bone of deceased Sunny). True, Sh. A.K. Srivastava has not been examined in this case, but being a Govt. Scientific Expert, report of same can be used as evidence in the trial of this case, in view of Section 293 of The Code of Criminal Procedure. Trite it to say that even Ld. Defence Counsels did not request for calling of said witness for crossexamination. There is another report (Ex. PW26/G) shown to have been filed by a Senior Scientific Officer (Physics), Forensic Science Laboratory, Delhi. As per it, a plastic wire Ex. '1' was examined with the help of universal testing machine and it was opined that said wire was "having enough strength and strength to strangulate a person". This report is also admissible per se U/s 293 Cr.P.C.
When dead body of victim Sunny was recovered on the SC No. 07/11 24 of 27 pointing of accused Pankaj @ Pinchoo, it can be concluded that the fact that it was buried at the place, it was dug out, was well within the knowledge of said accused. Accused Pankaj gave no explanation in this regard rather claimed the evidence in this regard as false. It is also a circumstance established against said accused. Age of deceased and the way, the dead body was buried i.e. alongwith wearing cloths including shoes and having a strong plastic wire wrapped on the neck are evident of homicidal death of victim. Human body was not such a thing which are scattered here and there or could be imposed upon the accused so easily. It can thus be presumed that said accused i.e. Pankaj @ Pinchoo was involved in killing and burying victim Sunny. Same is hence convicted for offence of murder, punishable U/s 302 IPC and for causing disappearance of evidence of offence of murder by concealing dead body of his victim with intention to screen the offender i.e. himself from legal punishment, punishable U/s 201 IPC. There is no evidence on record to come to conclusion that the accused Pankaj @ Pinchoo had abducted the victim, after hatching conspiracy with coaccused persons. Same is hence acquitted for offence punishable U/s 364/120B IPC.
As per case of prosecution, victim Sunny remained in regular touch with accused persons on the day of incident. Accused Mala Rani was using a mobile phone No. 9953103855 as well as phone No. 9350607626. She used the same till 03.10.2010 and the later phone was handed over to one Ruksana to be given to accused Pankaj @ SC No. 07/11 25 of 27 Pinchoo. Similarly, accused Thakur Dass was using mobile phone No. 8950657441 and talked on this phone to coaccused Pankaj @ Pinchoo. Again, accused Pankaj talked with coaccused by using mobile phone No. 9310073076. To prove all this, prosecution examined one Mr. Deepak, Assistant Nodal Officer, Vodafone as PW16. As per this witness, mobile phone No. 9953103855 was issued in the name of Mala Rani, wife of Suresh Gulati i.e. accused. Call details of this phone from 29.09.2010 to 30.09.2010 are Ex. PW16/C. One Manish Kumar Singh (PW12), Assistant Nodal Officer from Tata Tele Services, Col. A.K. Sachdeva (PW19), a Nodal Officer from Reliance Communication Limited and Sh. Vishal Gaurav (PW24) a Nodal Officer from Bharti Airtel Ltd. are also examined by the prosecution. As per PW12, phone No. 8950657441 was issued in the name of one Shriram, son of Sh. Laxman Ram. As per PW19, mobile phone No. 9350607626 was issued in the name of one Firoz Khan, resident of 117, Basti Hazrat Nizamuddin, New Delhi and that phone no. 9310073076 was owned by Sh. Manoj Kumar. PW24 stated about phone No. 9910709514 which was in the name of Ruksana Khatoon. Prosecution failed to prove that said phones No. 9310073076, 8950657441, 9910709514 or 9350607626 were in the name of or used by any of accused (except Mala Rani) as was alleged. None from owners of said phones was examined as a witness. Similarly, Smt. Ruksana when examined in court as PW1, denied the fact that she was contacted by accused Pankaj on phone or SC No. 07/11 26 of 27 was asked to meet at Gurudwara, Gali No.7, Delhi or handed over any such phone to that accused. There is no other evidence to verify that accused persons hatched any conspiracy to abduct victim Sunny. Even if any spade as deposed by prosecution witnesses was recovered at the instance of accused Thakur, there is nothing to verify that it was same, which was used in digging the pit, where dead body of victim (Sunny) was buried. Accused Thakur @ Raja @ Sonu and Mala Rani are thus acquitted for the offence, they have been charged.
File be consigned to record room.
Announced in the open court (RAJENDER KUMAR SHASTRI)
today i.e. 25th August 2012 ASJ02/SE/ SAKET COURT
NEW DELHI
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