Delhi District Court
State vs . on 17 October, 2014
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE02, CENTRAL, DELHI
FIR No.: 01/2012
PS: Kashmere Gate
U/s: 302/34 IPC
S.C. No.: 30/12
Case ID No. :02401R0146152012
In the matter of:
State
Vs.
1. Dingal
S/o Sh. Mohan Lal
R/o F575, JJ Colony, Bawana , Delhi
2. Sushil Kumar @ Sushil Dass
S/o Sh. Ram Dular Dass
R/o Village Panali, P.S. Ander
PO Jijore, Distt. Shivan, Bihar
Present Address:
Vagabond Jama Masjid & Jamuna Bazar, Delhi
3. Farid @ Mota
S/o Sh. Munna
R/o Present Address:
Vagabond, Jama Masjid & Jamuna Bazar, Delhi
Permanent Address:
Village Joya, P.S. Amroha, Muradabad, U. P.
Date of Institution : 30.03.2012
S.C. No.: 30/2012 1/22
Arguments Heard : 11.09.2014 & 14.10.2014
Date of Judgment : 17.10.2014
JUDGEMENT
Case Of Prosecution:
1. On 01.01.2012 on receipt of DD no. 14A, Inspector Madhukar Rakesh alongwith ASI Om Prakash and Ct. Jitender reached at the spot at Jhuggi no. 5, near Nili Chatri Mandir, Delhi where a large crowd had gathered and dead body of a male was found lying in pool of blood on the bedding. On interrogation, identity of deceased was revealed as Noor Mohammad @ Kalia. Complainant Saira who was mother in law of deceased gave her statement to the IO with respect to commission of murder of deceased by accused Dingal alongwith his associates Farid and Susheel and on the basis of her statement, instant FIR u/s 302/34 IPC was registered. Crime team was called at the spot which inspected the scene of crime and exhibits were lifted from the spot. Postmortem examination on the dead body of deceased was got conducted and during further investigation, IO prepared site plan, recorded statements of other witnesses, arrested all the accused persons, recorded their disclosure statements, sent the exhibits to FSL for expert opinion and after completion of investigation, filed the instant charge sheet u/s 302/34 IPC against all the accused persons in the court.
2. Since the offence u/s 302 of IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM S.C. No.: 30/2012 2/22 committed the case to court of sessions.
Charge Against The Accused:
3. Prima facie case u/s 302/34 IPC was made out against the accused persons. Charge was framed against them accordingly, to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 17 witnesses in all.
5. PW1 is Dr. S. Lal from Subzi Mandi Mortuary who conducted postmortem on dead body of deceased and proved the report as Ex . PW1/A.
6. PW2 is Dr. Prashant Kumar from Aruna Asaf Ali Hospital who examined accused Dingal and proved the MLC as Ex. PW2/A.
7. PW3 is Smt. Saira and PW5 is Ms. Gulshan who both did not support the case of prosecution and stated that they did not know anything about this case and also did not know as to who killed Noor Mohammad @ Kalia.
8. PW4 is Amjad Malik who identified accused Dingal as the same person who had purchased Kafan and other burial articles from his shop.
9. PW6 is Ms. Kishwer Sultana in whose presence accused Dingal had pointed out the shop from where he had purchased the Kafan and other articles and proved the pointing out memo as Ex. PW6/A. S.C. No.: 30/2012 3/22
10. PW7 is Pratap Singh, Retired SI who proved the FIR as Ex. PW7/B.
11. PW8 is ASI Om Prakash and PW13 is H.C. Raj Kumar who were with the IO during investigation of the case and proved the memos prepared during investigation.
12. PW9 is Inspector Madhukar Rakesh, IO of the case who conducted investigation of the case, prepared site plan, arrested accused persons, sent the exhibits to FSL for expert opinion and after completion of investigation, filed the charge sheet in the court.
13. PW10 is Ct. Irshad Ahmed, Photographer from Mobile Crime Team who took photographs of the dead body from different angles and proved the same as Ex. PW10/A1 to Ex. PW10/A14.
14. PW11 is H.C. Satyapal Singh, the MHC(M) who proved the entries regarding deposition of case property in malkhana as Ex. PW11/A to Ex. PW11/E.
15. PW12 is Sher Khan who made call at 100 number and is a witness to seizure of blood sample of deceased as well as earth control, bedding and Kafan by the police on date of incident.
16. PW14 is H.C. Shelesh Sharma who is a witness to arrest of accused Sushil.
17. PW15 is SI Pradeep Rai who handed over the subsequent opinion given by doctor as well as other exhibits and postmortem report to the IO.
S.C. No.: 30/2012 4/22
18. PW16 is H.C. Madan Pal Singh who took the sealed parcels to FSL Rohini and deposited the same there.
19. PW17 is Inspector Mahesh Kumar, Draftsman who prepared scaled site plan and proved the same as Ex. PW17/A.
20. Statements of all the accused persons u/s 313 Cr.P.C. were recorded wherein they denied the case of prosecution and stated that they are innocent and have been falsely implicated in this case.
21. I have heard Ld. APP for the state as well as Ld. counsel for defence Sh. Rajender Chabra and have perused the record.
22. In terms of prosecution case, on receipt of information from PW12 Sher Khan regarding lying of dead body of one Noor Mohammad @ Kalia in pool of blood in front of jhuggi of Saira, police investigating team came into motion and reached at the spot and inquiry was conducted which revealed the identification of deceased as Noor Mohammad @ Kalia who was son in law of witness Saira examined as PW3 before this court. According to the members of investigating team who were examined as prosecution witnesses before this court, PW3 Saira claimed herself to be an eye witness to the incident who had stated to the police that the deceased was husband of her daughter Gulshan who was lodged in J/C in some criminal case and was released on 3.12.2011 but in the meantime, her daughter Gulshan developed relationship with accused Dingal and stated residing with him. After the release of deceased Kalia @ Noor Mohammad from jail, enmity developed between deceased and S.C. No.: 30/2012 5/22 accused Dingal as the deceased was forcing her daughter to stay with him and wanted her daughter to abort the child which she had conceived while staying with accused Dingal. As stated, on the intervening night of incident, she heard noise of quarrel outside her jhuggi and noticed deceased being caught hold by accused Farid and Sushil whereas accused Dingal cut his throat. Thereafter they ran away from the spot but as she became afraid, she went inside her jhuggi and slept. In the morning, she informed this fact to her daughter Gulshan upon which her daughter and accused Dingal came to the spot but they were restrained from making any call at 100 number by accused Dingal who also brought burial material to bury the deceased but in the meantime somebody informed the police and police reached at the spot, whereas accused Dingal escaped. Thereafter search was conducted to apprehend accused Dingal and his associates who subsequently were apprehended from different places. Accused Dingal was taken to hospital for medical examination where his blood stained clothes were seized and were sent to FSL. The disclosure statements of all the accused persons were also recorded and weapon of offence i.e. knife was recovered at the instance of accused Sushil, whereas accused Dingal led the police team to the shop from where he had purchased Kafan and other burial material.
23. PW12 Sher Khan in his deposition before the court also confirmed with respect to the interrogation and recording of the statements of Saira and her daughter namely Gulshan by the police. S.C. No.: 30/2012 6/22 However PW Saira and Gulshan who were examined before this court as PW3 and PW5 respectively denied having made any such statements to the police and rather stated that the police had not made any inquiry from them nor had recorded their statements, though they had put their thumb impressions on some blank papers for which they were forced by the police. PW3 though confirmed the fact that her daughter had been living with Noor Mohammad @ Kalia i.e. deceased as his wife but, as stated, there was no issue from him. She further confirmed that deceased Noor Mohammad @ Kalia was sent to jail six months prior to his death, during which period her daughter started living with accused Dingal and also got pregnant. She was pregnant of four months when deceased came out of the jail on 3.12.2011. But rest of the contents of her statement which as alleged by the prosecution was given to the police by PW3 and denied by her before the court, were not stated by her and she rather stated that she did not know anything about this case as well as about the factum as to how deceased died. Similarly ignorance was cited by PW5 Gulshan with respect to the cause of death of deceased as well as about the killer.
24. In the statement of accused Dingal recorded before this court u/s 313 Cr.P.C. , he himself stated about the relationship of deceased with his livein partner i.e. PW5 as of husband and wife but he stated that after the release of deceased from jail, he had never met him nor the deceased had ever met PW5 in his presence. He stated that in the morning of 1.1.2012 i.e. the date of incident, while he just got up from the sleep under S.C. No.: 30/2012 7/22 the Monkey Bridge, Opposite to Hanuman Mandir when Gulshan was also with him, they were informed by mother of Gulshan that Noor Mohd . @ Kalia had been murdered by someone. He told Gulshan to call at 100 number but since she was not having any mobile with her therefore he informed Sher Khan who in turn informed the police but subsequently Gulshan, her parents and accused himself were taken by the police and according to him, all others except him were let off, whereas he was falsely implicated in the present case. Accused Dingal also denied with respect to bringing of the burial material in his statement. It may be noted that PW12 Sher Khan did not utter even a single word about any request made or information given to him by accused Dingal for making call to the police. Rather according to him, it was at about 10.15/10.30 a.m. on 1.1.2012 when he noticed the gathering of crowd in front of jhuggi of Saira. He went there and saw dead body of Noor Mohd. @ Kalia lying on bedding. He was in pool of blood and his clothes and bedding were soaked with blood. PW12 from his mobile phone called the police and after the police arrived at the spot, inquiry was conducted from Saira as well as her daughter Gulshan and their statements were recorded. According to him, the crime team was also called and the blood samples, earth control etc. were lifted and the bedding and Kafan etc. were seized.
25. In terms of medical evidence on record, the cause of death of deceased was shock and hemorrhagic shock due to cut throat injury which was sufficient to cause death in ordinary course of nature and the injuries S.C. No.: 30/2012 8/22 on the dead body were ante mortem in nature i.e. (1) incised wound 2 x 0.5 cm into bone deep over temporal area, 6 cm from angle of eye, (2) multiple incised wound merged to each other to form a wound of size 14 x 2 cm into trachoea deep over middle of neck. The right angle of wound placed 6 cm below the angle of mandible and left angle of wound placed 6 cam below the left angle of mandible. The tailing of wound (multiple) was seen on left side of neck. The wound cut the underline muscles, vessels and trachea and the wound was horizontally placed. In terms of deposition of Specialist i.e. PW1 who had conducted the postmortem on dead body of deceased, the injuries mentioned in postmortem report could have been possible to be caused by the weapon of offence produced before him for examination. The weapon of offence shown to the witness was knife which was recovered at the instance of accused Sushil. Though Ld. counsel for defence raised doubt with respect to the recovery of knife at the instance of accused Sushil but the said point shall be taken up lateron. The time of death of deceased as opined by PW1 in PM report Ex. PW1/A was 36 hours from the time of conducting postmortem which was conducted on 2.1.2012 at 3.40 p.m. , though seems to be wrongly typed as 26 hours in deposition of PW1 before the court and thereby the death having occurred on the intervening night of 31.1.2011 and 1.1.2012 stands proved by prosecution.
26. It was argued by Ld. APP that the act of accused Dingal was a cold blooded murder of deceased in pre planned manner and after the S.C. No.: 30/2012 9/22 deceased was killed, he was put in quilt with his entire body covered to hide the fact with the further plan for his burial. The burial material was arranged by accused Dingal but because of call made by Sher Khan, police arrived at the spot and accused could not succeed in his plan. On the other hand, it was submitted by Ld. counsel for defence that the deposition of witnesses i.e. PW3 and PW5 and particularly of PW3 who was projected as eye witness by the prosecution do not help the case of prosecution at all since in their deposition before the court, both PW3 and PW5 have not supported the case of prosecution, wheres their statements given to the police are not admissible in evidence. As further argued, in the absence of any direct evidence on record, the chain pertaining to circumstantial evidence pointing towards guilt of accused persons is also not complete for which reliance was placed upon 1991 SC Page 1388 wherein it was observed that " the settled proposition of law is that in the heinous crime the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof ". Reliance was further placed upon C.Chenya Reddy & Ors. Vs. State of A.P. 1996 (10) SCC 193, Bhagat Ram Vs. State of Punjab AIR 1954 SC 621 and Hanumant Govind Nargundkar & Ars. V/S. State of U.P. AIR, 1952 SC 343 wherein interalia it was observed that "In a case based on circumstantial evidence, the settled law is that the circumstances from S.C. No.: 30/2012 10/22 which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence".
27. It was also submitted by Ld. counsel for defence that there is presumption of innocence of accused till the time same is disproved by cogent evidence led by prosecution as was observed in Ashish Batham Vs. State of MP, 2002 SCC (Cri.) 1718, that "fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure S.C. No.: 30/2012 11/22 conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record and also similarly in Kailash Gour & Others Vs State of Assam (AIR 2012 SC 786) it was held that "it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused may have committed the offence and must have committed the offence which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a human right which cannot be wished away."
28. In the instant matter, murder of deceased was caused immediately outside the jhuggi of PW3 and even if no credence is given to her statement recorded by the police since she turned hostile during her examination before the court, yet the conduct of witnesses themselves, of accused Dingal and the relationship between the deceased, witnesses and accused Dingal are the relevant factors to be noted down. It is difficult to assume that PW3 did not hear any commotion or noise outside her jhuggi when the murder was being committed who apparently seems to have denied the prosecution case in order to save accused Dingal with whom her daughter was living and was also bearing his child. Even if her S.C. No.: 30/2012 12/22 assertion that she did not get to know about the murder of deceased nor had seen who killed the deceased is taken on its face value, yet she got to know about killing of her son in law at least in the morning of 1.1.2012 but instead of raising noise or informing the police regarding killing of deceased outside her jhuggi, she preferred to inform her daughter who according to the own statement of accused Dingal was with him under the Monkey Bridge, Opposite Hanuman Mandir, which was at the distance of about 300400 meter from the place of incident. As was confirmed by PW5 i.e. daughter of PW3 that on 1.1.2012 at about 8 a.m. , her mother came while shouting that someone had killed Kalia. She went to the jhuggi and saw the dead body of her husband with his throat slit. As stated, accused Dingal was also with them but none of them preferred to inform the said factum regarding killing of deceased to the police when in terms of own deposition of PW5 she got to know about killing of her husband at about 8 a.m. itself and for the first time information was given to the police only at 10.15/10.30 a.m. that too by PW 12 Sher Khan and in these circumstances, the contention of Ld. APP seems to be sustainable/appreciable that it was only PW12 Sher Khan who reported the matter to police at about 10.15/10.30 a.m. though murder of deceased was committed at about 2.303 a.m. of intervening night of 31.12.2011 and 1.1.2012 at the gate of jhuggi belonging to PW3 who was mother in law of deceased and it is not possible that till 8 a.m. in the morning, she did not get to know about killing of deceased which had occurred S.C. No.: 30/2012 13/22 immediately outside her jhuggi. Her statement was recorded by the police in presence of PW12 as was confirmed by him yet she turned turtle in her deposition before the court which was only in order to save her son in law/live in partner of her daughter from the punishment. Even if the submission of accused Dingal is taken as gospel truth that it was he who had informed and requested Sher Khan to call the police since his wife was not having any mobile phone, there is no explanation on record from PW3 and PW5 or accused Dingal himself with respect to not informing the police during relevant period i.e. from the morning till 10.30 a.m. when the matter was reported to the police by PW12, though they utilized or I would like to say mis utilized the time in between to arrange for the burial material for the deceased.
29. Though it is correct that PW3 has turned hostile in her deposition before the court and has not stated anything against the accused persons who in her statement given before the police had stated that on the intervening night of incident, she heard noise of quarrel outside her jhuggi and noticed deceased being caught hold by accused Farid and Sushil whereas accused Dingal cut his throat. It is also correct that the statement given to the police is not admissible in evidence but as was observed by Hon'ble Supreme Court in Bhagwan Dass Vs. State Crl. Appeal No. 1117 of 2011 " the statement given to the police can be used to contradict the testimony of witnesses, as mentioned in proviso to section 162 (1) Cr.P.C. ". In the authority (supra), Hon'ble Supreme S.C. No.: 30/2012 14/22 Court noted that the witness denied her earlier statement given to the police because she wanted to save her son, therefore her statement given to the police was accepted and one given in the court was rejected as the defence had also not shown that the police had any enmity with the accused or had any other reason to falsely implicate him. PW3 in the instant matter also in her cross examination by Ld. APP was confronted with her statement to the police whose statement in terms of ratio decidendi of the authority (supra) can be taken into consideration in view of the proviso to section 162 (1) Cr.P.C. to discredit her testimony recorded in court which seems to be an after thought with a view to save her son in law (accused Dingal) from punishment.
30. Even if the statement of PW3 is considered as given in the court , many other circumstances come to the fore to point out the finger towards the possible involvement of accused Dingal in the alleged crime. Though accused Dingal denied regarding the purchase of Kafan and other burial material and also with respect to leading the police to the said shop cum residence of PW4 from where he had purchased the articles for burial of deceased , however PW5 i.e. her livein partner herself confirmed and admitted that accused Dingal had told her that he would arrange for Kafan who also brought the Kafan and other material for last rites of Noor Mohammad @ Kalia. The factum of purchase of Kafan and other materials by accused Dingal was also confirmed by PW4 from whose shop the said material was purchased by accused Dingal and who S.C. No.: 30/2012 15/22 identified accused Dingal as the same person in the court. According to him, accused Dingal had come to his shop at about 5.30 a.m. for purchasing the articles. His shop was closed at that time. Accused knocked the door and he opened the shop. As stated by this witness, his shop remains open for 24 hours and any person can purchase articles from his shop even in odd hours. It was dark outside and no other customer was present when accused came to his shop who might have come alone. According to him, kafan could be purchased from any shop but the same remains available at 5.30 a.m. only at his shop. As deposed by PW4, he did not know the name of accused earlier nor accused had disclosed his name to him but accused himself made statement that he was Hindu and asked him to give articles for last rites of a Muslim. According to him, it was surprising since normally a Hindu does not visit his shop and only Muslims visit his shop. Accused purchased Kafan etc. from his shop and paid Rs. 1250/ to him. Accused was again brought to his shop when he was in custody of police to whom he identified as the same person who had purchased Kafan and other articles from him. In terms of deposition of PW6 who was working as social worker and was present in her office on 2.1.2012, she heard some noises in front of her office and when she came out, she saw accused Dingal who was in custody of police and in her presence, pointed out the shop on the ground floor from where he had purchased Kafan and other last rites materials. This witness was witness to the pointing out memo prepared and though she herself was not witness S.C. No.: 30/2012 16/22 to the accused Dingal purchasing Kafan on 1.1.2012 but she was told by the man selling Kafan that accused Dingal had purchased Kafan from his shop on 1.1.2012. The statement of PW6 regarding accused pointing out the shop from where he had purchased Kafan and also the information to her by the seller as well as the statement of PW4 regarding purchase of Kafan and other material by accused Dingal from his shop in the morning of 1.1.2012 remains trustworthy on record besides the fact that his own live in partner i.e. PW5 also confirmed the buying and bringing of burial material by accused Dingal himself. Further, according to PW5 , she got to know about the killing of deceased only at 8 a.m. on 1.1.2012 and in terms of statement of accused himself recorded u/s 313 Cr.P.C. PW5 was with him when PW3 informed them about the killing of deceased. The deposition of PW5 regarading such information by PW3 to them at 8 a.m. is falsified by the statement of PW4 Amjad Malik in terms of whose deposition, accused Dingal had visited his shop to purchase the Kafan and other burial materials in the early morning at about 5.30 a.m.
31. It was the argument of Ld. counsel for defence that PW3 never stated that she was handed over the coffin and other materials by accused Dingal and even if for the sake of arguments, it is presumed that accused Dingal had arranged for the coffin and other materials, the said fact itself is not sufficient to connect him to the alleged crime as well as the recovery of knife on the basis of disclosure statement of other accused that too from an open place also remains a serious lacunae in the case of S.C. No.: 30/2012 17/22 prosecution and is not worthy of credit, besides the fact that in the cases based upon circumstantial evidence proof of motive is an essential circumstance to complete the chain of circumstances and in the present case, prosecution has failed to prove the availability of motive with accused persons to commit murder of deceased, whereas the disclosure statement of the accused is not admissible in evidence being hit by the sections 25&36 of the Indian Evidence Act. For the aforesaid, reliance was placed upon Tarseem Kumar v. Delhi Administration AIR 1994 SC 2585, wherein it was held that in case of circumstantial evidence, if it is found that accused had no motive to commit the offence, the evidence has to be examined with great care before acceptance 1988 Cr.LJ 1884], [If motive is absent the evidence produced should be of high standard and the responsibility of the court to scrutinize the evidence is increased 1987 (1) crimes 110, 1991 (2) crimes 512, 1986 (1) crimes 321].
32. It may be mentioned that the factum with respect to accused Dingal arranging for the coffin etc. having already been proved on record itself in isolation may not be a fact sufficient to prove his guilt but here it is the case where the abovesaid fact turns out to be one of the relevant considerations and not the sole factum while trying to pick up the beads to complete the chain of circumstances. In terms of evidence established on record, accused Dingal was living with the wife of deceased who was also bearing his child. The deceased had been released from the jail and his wife continued to live with accused Dingal. Though PW3 and PW5 in S.C. No.: 30/2012 18/22 their deposition before the court denied with respect to the previous quarrels and enmity between the deceased and accused Dingal on the said point i.e. the continuation of relationship of accused Dingal with the wife of deceased, yet the motive to get rid off the deceased was available only with accused Dingal who was continuing his relationship with wife of deceased. The deceased was killed immediately outside the jhuggi of his mother in law i.e. PW3 and as already observed, even if testimony to the extent that she did not know who killed the deceased is taken on face of it, yet she was the first one having seen the dead body of deceased lying outside her jhuggi but she preferred not to inform the police or to raise hue and cry and rather covered the distance of about 300400 meter to inform the said fact to her daughter and her livein partner who again did not inform the abovesaid to police and as established on record, rather accused Dingal arranged for the coffin and other material for last rites of deceased but before the abovesaid could be done, PW12 informed the police. The defence of accused that he was informed by PW3 regarding murder of deceased and he informed Sher Khan to call the police, is also falsified on record. His denial to the factum of bringing of coffin and other material proved on record by the prosecution contrary to his denial and no plea of alibi having been taken by accused Dingal on record to show that he was not present at the spot at the time of killing of deceased or he could not have been present at that time at the spot or could not have participated in the killing of deceased when he was the one having S.C. No.: 30/2012 19/22 strongest motive to sweep away the deceased in order to continue his relationship with the wife of deceased. The recovery of knife though was affected in pursuance to disclosure statement of accused Sushil from an open place which fact again in isolation may be doubtful but while trying to connect the links i.e. the knife which was recovered was having blood stains of same blood group belonging to deceased, which knife as opined by PW1, could be the same weapon of offence used in the commission of crime, the said recovery of knife also emerges as another important link in completing the chain of evidence against accused Dingal. Accused Dingal continued to be present at the spot , also arranged for the coffin and other material but as soon as police reached at the spot, he disappeared and was apprehended subsequently when he was taken for medical examination to the hospital. His clothes were also found to be blood stained which were seized and sent to FSL for examination and the blood stains found on the clothes of accused Dingal matched with the blood group of deceased.
33. Cumulatively taking the above circumstances on record i.e. the availability of motive with accused Dingal to kill the deceased, purchase of coffin and other material by him, not informing to the police since morning, his disappearance from the spot at the time of arrival of police, conduct of public witnesses related to him, presence of blood stains on his clothes which matched with the blood group of deceased, recovery of knife which was opined as weapon of offence by the doctor/ expert, no S.C. No.: 30/2012 20/22 reason for his false implication by the police, unerringly point out towards the guilt of accused Dingal in the commission of crime i.e. murder of deceased Noor Mohammad @ Kalia.
34. With respect to other accused persons namely Farid and Susheel, the only incriminating evidence with respect to their participation in the alleged crime was the statement of PW3 given to the police, but in her deposition before the court, she did not support the case of prosecution and did not state anything against accused persons. No other incriminating evidence is brought on record against accused Farid except for his own disclosure statement which is not admissible in evidence in terms of section 25 of Indian Evidence Act . Similarly with respect to accused Susheel, his disclosure statement similar to the case of coaccused is not admissible in evidence with difference of only fact that his disclosure statement had led to recovery of weapon of offence but mere recovery of the knife at instance of accused Susheel in absence of any other incriminating circumstance against him, renders the case of prosecution short of to be termed as fully established against him as well, benefit of which must go to the accused persons. Reliance is placed upon Govindaraju@ Govinda Vs. State by Sriramapuram P.S. & Anr. Criminal Appeal No. 984 of 2007 dated 15.3.2012 wherein it was observed that " in criminal cases, if two views are possible on the evidence adduced on record, one pointing out to the guilt of accused and other to his innocence, the view which is favourable to accused should be adopted ". S.C. No.: 30/2012 21/22 Accordingly, both accused Susheel and Farid are acquitted of the offence u/s 302/34 IPC while giving them benefit of doubt, whereas accused Dingal is convicted for the offence 302/34 IPC.
35. In terms of section 437A of Cr.P.C., accused Farid and Susheel are directed to furnish bail bonds in sum of Rs. 15,000/ each with one surety of like amount for the period of 6 months with the condition that they shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal filed by the state against the judgment within a period of 6 months. After furnishing the bail bonds, accused Farid and Susheel be released, if not required in any other case.
36. Let convict Dingal be heard on point of sentence.
(SAVITA RAO) Additional Sessions Judge02 (Central) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 17.10. 2014 S.C. No.: 30/2012 22/22