Delhi District Court
State vs . Bharat Yadav @ Balli & Anr. on 10 July, 2014
S/V Bharat Yadav@ Balli & anr.
IN THE COURT OF SH. AMIT BANSAL, ADDITIONAL SESSION JUDGE04
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
S.C. No. 127/09
Unique case ID No.02404RO327762009
FIR No. 505/09
U/S 302/34 IPC
P.S. Jahangir Puri
State Vs. Bharat Yadav @ Balli & Anr.
STATE VERSUS 1. Bharat Yadav @ Balli,
S/O Sh. Samay Singh Yadav,
R/O E 1347, Jahangir Puri, Delhi.
2. Hemant Kumar @ Monu,
S/O Sh. Gulshan Kumar,
R/O J560, Jahangir Puri, Delhi.
Date of receipt of file in this Court: 06.02.2014
Date when arguments were heard: 05.07.2014
Date of judgment : 10.07.2014
JUDGMENT
1. Both the accused persons have been charge sheeted by P S Jahangir Puri for commission of an offences U/S 302/34 IPC.
FIR No.505/09 P.S. Jahangir Puri page 1 of 57
S/V Bharat Yadav@ Balli & anr.
2. Story of the prosecution in brief is that the deceased namely Brijesh @ Sonu used to reside at E1418, Jahangir Puri, Delhi alongwith his father Sh. Bijender Singh ( PW3) and his mother Smt. Nisha ( PW4). PW1 Rajesh Singh is the complainant of the case and the real maternal uncle ( mama) of the deceased. The deceased had married with one Smt. Aysha daughter of Sh. Badrudin on his own and against the wishes of his parents. As per the case of prosecution, prior to the marriage of Smt. Aysha with the deceased, the accused Bharat Yadav @ Balli was having a talking terms with her and the deceased used to object to the same since his marriage. One Smt. Neelam i.e. real sister of deceased had also got love married with accused Hemant Kumar @ Monu on her own and against the wishes of her parents. The marriage of Smt. Neelam with accused Hemant Kumar @ Monu was also objected to by the deceased being the brother of Smt. Neelam and due to this there was quarrel and manhandling between the deceased and the accused Hemant @ Monu and the deceased was still not happy with the marriage of his sister Smt. Neelam with accused Hemant @ Monu. As per the case of prosecution, in the year 2009 the deceased went to Haridwar to bring ' Kawad' and during that period accused Bharat Yadav @ Balli had taken Aysha i.e. wife of deceased to her village in U.P. and after returning from Haridwar the deceased came to know that his wife was taken by accused Bharat Yadav @ Balli to her village, the deceased enquired from the accused Bharat Yadav @ Balli as to why he had taken his wife to her village and some FIR No.505/09 P.S. Jahangir Puri page 2 of 57 S/V Bharat Yadav@ Balli & anr.
quarrel took place between them. On 08.09.09, PW1 went to the house of the deceased at E1418, Jahangir Puri, Delhi and at that time PW3 i.e father of the deceased was not present there as he had already gone to his village Bullandshahar at U.P. on 07.09.09. On 08.09.09 at about 5 p.m. both the accused came to the house of the deceased, called the deceased, told him to accompany them as they were having some work with him and both the accused thereby took the deceased with them. The deceased did not return to his house for the whole night. PW3 came back at about 8 8.30 p.m. to his house from Bullandshahar, U.P. and as the deceased did not return to his house till 9.30 - 10 p.m., therefore, PW1 along with PW3 went in search of the deceased , searched in the parks and other areas and at about 5.15 a.m. when they reached Sulabh Shochalya near BBlock Park, situated in front of SBI, Jahangir Puri, Delhi then they saw the dead body of a person lying in a pool of blood and the said dead body was identified to be of the deceased. PW1 pointed out the accusing finger towards both the accused persons who as per him in furtherance of their common intention to take revenge committed the murder of the deceased. Thereafter PW1 made a call at number 100 and the police arrived at the spot. The statement of PW1 was recorded by PW18 SI Ranbir Singh, a rukka was prepared and the same was handed over to PW17 Ct. Devender for registration of the case. After registration of the case, PW17 along with PW19 Inspector Shanker Lal Meena reached at the spot and the crime team also reached at the FIR No.505/09 P.S. Jahangir Puri page 3 of 57 S/V Bharat Yadav@ Balli & anr.
spot. The spot of the crime was inspected and PW13 Anil Sharma, a private photographer, was called at the spot who took 8 photographs of the spot. PW19 also called two Constables from P.S. Jahangir Puri and in the meanwhile Ct. Devender ( PW17) came back at the spot with original rukka and computerized copy of FIR, which he handed over to PW19. PW19 prepared the site plan. The dead body was sent to mortuary BJRM Hospital through PW17. Blood sample was lifted with the help of cotton from the spot, blood stained stone, earth control and blood stained tiles were also lifted from the spot. These were kept in separate plastic containers and sealed with the seal of "SLM". Blood stained tiles were broken , earth control and blood stained mud were also lifted from the spot and kept in plastic containers sealed with the seal of "SLM". One pair of leather shoes of white color lying near the dead body, out of which one shoe was completely drenched with blood and the other shoe was having less blood on it, were also seized. Two full bricks and two half bricks all stained with blood which were also found lying there near the dead body were also seized and sealed in a pullanda with the seal of "SLM". Thereafter PW18 along with PW19, PW14 Ct. Pradeep Kumar and PW10 Ct. Dharmender Singh went to mortuary, BJRM Hospital where after completing the formalities and identification of the dead body, PW19 got conducted the postmortem of the dead body of the deceased and after postmortem the dead body was handed over to the relatives of the deceased. Thereafter PW17 left the mortuary and PW18, PW19, PW10 and FIR No.505/09 P.S. Jahangir Puri page 4 of 57 S/V Bharat Yadav@ Balli & anr.
PW14 reached at A block, Jahangir Puri, Delhi where a secret informer informed PW19 that the accused persons involved in the present murder case were standing at Jahangir Puri metro station and if a raid was conducted , the accused persons could be apprehended. At the instance of the secret informer, the accused persons were apprehended from beneath the metro station Jahangir Puri upon identification of PW1 and PW3. The personal search of the accused persons were also conducted and during interrogation the accused persons made disclosure statements. Thereafter both the accused persons led police to the spot and also pointed out the place where they had committed the murder of the deceased. A pointing out memo in this regard was also prepared. The accused persons were thereafter medically examined at BJRM Hospital . On 10.09.09 during investigation and in the presence of PW18 SI Ranbir Singh , PW19 Inspector Shanker Lal, PW14 Ct. Pradeep Kumar, PW15 HC Jagmohan and PW1 Sh. Rajesh Singh, the accused Bharat Yadav @ Balli got recovered one knife from the back side boundary wall of the kudedan at J Block, Jahangir Puri, Delhi. Accused Hemant Kumar @ Monu also got recovered one blood stained stone from there and both the accused persons disclosed that they had committed murder of the deceased with the said knife and stone. The said knife and said blood stained stone were seized. Thereafter both the accused persons led them to the house of accused Bharat Yadav @ Balli at EBlock, Jahangir Puri, Delhi from where the accused persons got recovered their respective FIR No.505/09 P.S. Jahangir Puri page 5 of 57 S/V Bharat Yadav@ Balli & anr.
clothes which were worn by them at the time of the case incident and the said clothes were also seized. After completion of the investigation, charge sheet was filed against both the accused persons U/S 302/34 IPC.
3. Copies of charge sheet were supplied to both the accused persons. The Ld. Metropolitan Magistrate after complying with the provision of Section 207 CrPC, committed the case to the Court of Sessions as the offence punishable U/S 302/34 IPC is exclusively triable by the Sessions Court.
4. Accused Bharat Yadav @ Balli and Hemant Kumar @ Monu are facing trial on the allegations of the prosecution that in the intervening night of 89.09.2009 at public toilet ( Sublah Shochalya) , opposite SBI Bank, BBlock Jahangir Puri, Delhi they in furtherance of their common intention committed the murder of deceased Brijesh @ Sonu by stabbing him with knife and hitting him with bricks and stones and both of them thereby committed an offence punishable U/S 320/34 IPC. The charge in this regard was framed against the accused persons on 21.01.10 by the Ld. Predecessor of this court to which they pleaded not guilty and claimed trial. The case was, thereafter, fixed for prosecution evidence.
5. The prosecution in support of its case has examined total 19 witnesses and thereafter the prosecution evidence was closed.
6. The statements of accused Bharat Yadav @ Balli and Hemant Kumar @ Monu U/s 313 Cr.P.C. were recorded on 17.10.13 in which they denied all the material incriminating circumstances appearing in the prosecution evidence against them FIR No.505/09 P.S. Jahangir Puri page 6 of 57 S/V Bharat Yadav@ Balli & anr.
and stated that they were innocent and were falsely implicated in this case after police obtained their signatures on blank papers. The accused Bharat Yadav @ Balli stated that he has been falsely implicated in connivance with PW1 and PW3 because he was a friend of co accused Hemant Kumar @ Monu , nothing was recovered from him or at his instance and that he does not know any lady by the name of Aysha and that he has never met her in his life. Accused Hemant Kumar @ Monu stated that he has been falsely implicated in connivance with PW1 and PW3 because his motherinlaw is/ was indulged in the profession of prostitution and she also used to force his wife to do the same profession, to which, he opposed and for that reason he was implicated in the present case. He further stated that an FIR No. 45 dated 16.02.10 U/S 344/365/506/511/102B IPC has also been registered against his motherinlaw at P.S. Shahabad, District Kurukshetra, Haryana. He stated that his brotherinlaw Brijesh ( deceased) also used to consume smack etc. and he was having a number of enemies in the locality. Both the accused specifically denied that they were medically examined at BJRM Hospital vide M.E. No. 74816 and 74807 i.e. EX PW 2/A and EX PW 2/B proved by PW2 Dr. Neeraj Chaudhary. In this regard both the accused stated that did not visit BJRM Hospital after their arrest. In their respective statements U/S 313 CrPC, both the accused persons preferred not to lead any defence evidence.
7. I have heard the final arguments and perused the record including the written FIR No.505/09 P.S. Jahangir Puri page 7 of 57 S/V Bharat Yadav@ Balli & anr.
submissions filed on behalf of the accused persons. The final arguments shall be referred to and discussed in detail at different appropriate paragraphs in the judgment.
8. As mentioned above, the prosecution in support of its case has examined total 19 witnesses.
PW1 Rajesh Singh is a material witness for the prosecution being the complainant of the case and the maternal uncle ( mama) of the deceased Brijesh @ Sonu . He is one of the witness of the prosecution who deposed regarding having seen the deceased with both the accused persons on 08.09.09 at about 5 p.m. when the accused persons called the deceased from his house on the pretext of having some work with him and the accompanying of deceased with them. He has deposed regarding the motive with both the accused persons to murder the deceased and he along with PW3 ( father of the deceased) were the first to see the dead body of the deceased at the above said public toilet. PW1 made the call at number 100 upon which the police reached at the spot and his statement in this regard was recorded by the IO. The said statement dated 09.09.09 upon which the case FIR was registered has been proved as EX PW1/A bearing signatures of PW1 at point A. PW1 interalia deposed to the effect that at the spot the police lifted the blood in a white gauze, kept it in a plastic dibbi and a pullanda was prepared which was sealed with the seal of "SLM" and was given Ex No.1, which was taken into possession vide seizure proved as EX PW FIR No.505/09 P.S. Jahangir Puri page 8 of 57 S/V Bharat Yadav@ Balli & anr.
1/S bearing signatures of PW1 at point A. The blood stained stones were broken into small pieces, kept in a plastic dibbi and a pullanda was prepared which was sealed with the seal of "SLM" and was given Ex No.2. The blood stained floor in the Sulabh Shochalya was broken, was lifted, was kept in a plastic dibbi and a pullanda was prepared which was sealed with the seal of "SLM" and was given Ex No.3. The blood stained tiles of the floor of the Sulabh Shochalya were broken, was lifted, was kept in a plastic dibbi and a pullanda was prepared which was sealed with the seal of "SLM" and was given Ex No.4. The blood stained earth control from the Sulabh Shochayla was lifted, was kept in a plastic dibbi and a pullanda was prepared which was sealed with the seal of "SLM" and was given Ex No.5. He deposed that all these articles were taken into possession vide seizure memo EX PW 1/B bearing his signatures at point A . He deposed that at the spot, one pair of leather shoes (proved as EX P1 collectively) lying near the dead body of the deceased which belonged to deceased out of which one shoe was totally blood stained while one shoe was having some blood stains were also kept in a white cloth, a pullanda was prepared and a same was sealed with the seal of "SLM". The Ex. No. 8 was given to the said pullanda and it was taken into possession vide seizure memo proved as EX PW 1/C . PW1 deposed that IO also lifted the blood stained pieces of bricks (two bricks and two pieces of bricks proved as EX P2 collectively), kept them in a polythene bag, further kept it in a white colored cloth, prepared a pullanda and sealed it with the FIR No.505/09 P.S. Jahangir Puri page 9 of 57 S/V Bharat Yadav@ Balli & anr.
seal of "SLM". The said pullanda was given Ex No.7 and was taken into possession vide memo proved as EX PW 1/D. PW1 deposed that on his pointing out, the IO prepared a site plan which has been proved as EX PW 1/E bearing the signatures of PW1 at point A. The identification memo vide which PW1 identified the dead body of the deceased in the mortuary of BJRM Hospital has been proved as EX PW 1/F bearing his signatures at point A. He deposed that after postmortem, the dead body of the deceased was handed over to PW3 vide receipt EX PW 1/G bearing his signatures at point A. He has also deposed regarding the arrest of the accused persons on 09.09.09 from metro station, Jahangir Puri, Delhi upon an information. He deposed to the effect that he and PW3 identified both the accused persons upon which they were apprehended and arrested by the police from beneath the metro station of Jahangir Puri, Delhi. The arrest memos of accused Hemant Kumar @ Monu and Bharat Yadav @ Balli have been proved as EX PW 1/H and EX PW 1/J respectively bearing signatures of PW1 at point A. Their personal search memos have also been proved as EX PW 1/K and EX PW 1/L respectively bearing signatures of PW1 at point A. The disclosure statements of both the accused persons have been proved as EX PW 1/M and EX PW 1/N respectively bearing the signatures of PW1 at point A. He deposed that thereafter both the accused persons led them to Sulabh Shochalya in B Block, Jahangir Puri, Delhi and pointed out the said Shochalya where they committed the murder of deceased. Pointing out memo in FIR No.505/09 P.S. Jahangir Puri page 10 of 57 S/V Bharat Yadav@ Balli & anr.
this regard as prepared by the IO has been proved as EX PW 1/O bearing signatures of PW1 at point A and the signatures of accused Hemant Kumar @ Monu and Bharat Yadav @ Balli at point X and X1 respectively. He further deposed that on 10.09.09 he again joined the investigation of the present case with the IO and on that day both the accused persons led the police party to J Block, Jahangir Puri, Delhi and pointed out the place behind the kudadan in between kudadan and nala and accused Bharat Yadav @ Balli got recovered one knife on whose handle one cloth piece was wrapped ( the said dagger type knife as produced by MHC(M) in an envelope parcel having Sl. No.12 sealed with the seal of FSL has been proved as EX P3) . He deposed that thereafter the sketch of the knife was prepared by the IO which has been proved as EX PW 1/P bearing his signatures at point A and signatures of both the accused persons at point X and thereafter the said knife was put in a polythene and converted into cloth parcel after sealing the same with the seal of "SLM". He deposed that accused Hemant Kumar @ Monu also got recovered one blood stained stone (the said blood stained stone as produced by MHC(M) in one envelope parcel having Sl. No.13 sealed with the seal of FSL has been proved as EX P4 ) from there which was also sealed in a cloth parcel with the seal of "SLM" and was taken into possession vide pointing out cum seizure memo proved as EX PW 1/Q bearing his signatures at point A. He deposed that both the accused persons disclosed that they had committed murder with the said knife and stone . He deposed that FIR No.505/09 P.S. Jahangir Puri page 11 of 57 S/V Bharat Yadav@ Balli & anr.
thereafter both the accused persons led them firstly to the house of accused Bharat Yadav @ Balli where the accused Bharat Yadav @ Balli produced one pants and one T shirt ( the said one T shirt and one jeans pants as produced by MHC(M) in one envelope parcel having Sl. No.14 sealed with the seal of FSL has been proved as EX P5 collectively ) from the room on ground floor of his house saying that he was wearing the said clothes at the time of commission of the said offence. The said clothes were sealed in a cloth parcel with the seal of "SLM" . He deposed that accused Hemant Kumar @ Monu also got recovered one white color shirt and jeans pants (the said white color shirt and one jeans pants as produced by MHC(M) in one envelope parcel having Sl. No.15 sealed with the seal of FSL has been proved as EX P6 collectively ) of blue color which were also sealed in a parcel which was sealed with the seal of "SLM" and both the parcels were taken into possession vide seizure memo proved as EX PW 1/R bearing signatures of PW1 at point A and signatures of both accused persons at point X. PW2 Dr. Neeraj Chaudhary was the CMO of BJRM Hospital, Jahangir Puri, Delhi and was deputed by M .S., BJRM Hospital to prove the M.Es. prepared by Dr. Vineet as the said doctor Vineet had left the services of the hospital and his present whereabouts were not known. PW2 deposed that he could identify the handwriting and signatures of Dr. Vineet as he had seen him writing and signing during the course of their job. PW2 deposed that M.E. No. 74816 dated FIR No.505/09 P.S. Jahangir Puri page 12 of 57 S/V Bharat Yadav@ Balli & anr.
09.09.09 of patient Bharat Yadav, 21 years male, brought by Ct. Ravi for medical examination was prepared by Dr. Vineet after his examination and is in handwriting of Dr. Vineet. The said M.E. has been proved as EX PW 2/A bearing signatures of Dr. Vineet at point A. PW2 deposed that M.E. No. 74807 dated 09.09.09 of patient Hemant Kumar, 21 years male, brought by Ct. Amar Singh for medical examination was prepared by Dr. Vineet after his examination and is in handwriting of Dr. Vineet. The said M.E. has been proved as EX PW 2/B bearing signatures of Dr. Vineet at point A. PW3 Bijender is also a material witness for the prosecution being the father of the deceased. He has also deposed regarding the motive with both the accused persons to murder the deceased on the lines of testimony of PW1. He also went along with PW1 in search of the deceased and has deposed that while searching for his son, he along with PW1 reached Sulabh Shochalya near the park in front of SBI, Jahangir Puri, Delhi, the said Sulabh Shochalya was not in use at that time, they found the dead body of his son ( deceased) lying there in a pool of blood. He has also deposed regarding the lifting of blood, blood stained earth, earth control, pairs of shoes of the deceased, two blood stained bricks and two half bricks lying near the dead body, blood stained stone and pieces of tiles of said Sulabh Shochalya and has deposed that the memos EX PW 1/S, EX PW Ex 1/B, EX PW 1/C and EX PW 1/D bears his signatures at point B. The statement of PW3 regarding identification of dead body of the deceased has FIR No.505/09 P.S. Jahangir Puri page 13 of 57 S/V Bharat Yadav@ Balli & anr.
been proved as EX P W 3/A. He has also deposed on the lines of PW1 regarding the arrest of the accused persons, their arrest memos, their personal search memos, their disclosure statements and the pointing out the place of occurrence by the accused persons and has deposed that EX PW 1/H, EX PW 1/J to EX PW 1/O bear his signatures at point B. During his testimony, the MHC(M) produced one envelope parcel No.8 sealed with the seal of court, which was opened and found to contain one blood stained shoes ( EX P1 collectively),which were correctly identified by PW3 as belonging to his son i.e deceased and were taken into possession from the spot. PW3 also correctly identified two bricks and two pieces of bricks ( EX P2 collectively) as the same which were taken into possession by the police from the spot i.e Sulabh Shochalya.
PW4 Smt. Nisha is also a material witness for the prosecution being the mother of the deceased. She has also deposed regarding the motive with the accused Bharat Yadav @ Balli to murder her son. She is also a witness regarding the last seen theory and has deposed that on 08.09.09 it was birthday of her daughter Pannu and a small function was arranged at her house. She deposed that her husband was not present on that day as he had gone to his native village at Bulandshahar on 07.09.09, however, PW1, his wife and children, she herself and her children were present at her house due to the said birthday. She further deposed that at about 5 p.m. ( on 08.09.09) both the accused persons had come to her house, called her son i.e. the deceased and told him FIR No.505/09 P.S. Jahangir Puri page 14 of 57 S/V Bharat Yadav@ Balli & anr.
that they wanted to talk with him. She deposed that thereafter both the accused persons took away her son Brijesh ( deceased ) with them and thereafter her son never came back. She deposed that at about 9 p.m. her husband had come back from his native village, he asked about their son and she and PW1 informed him about the aforesaid facts upon which PW1 and PW3 went in search of their son. She further deposed that in the early morning she came to know that her son has been murdered and his dead body was found lying at Sulabh Shochalya in front of SBI, Jahangir Puri, Delhi. She also deposed that her daughter Neelam had also got married with accused Hemant Kumar prior to the murder of her son.
PW5 SI Manohar Lal has deposed that on 27.10.09 he was posted as a Draftsman in North West District and on that day he along with PW19 Inspector Shanker Lal ( IO) went to the spot of incident at the instance of IO, took the rough notes and measurement and prepared a scaled site plan on 28.10.09 which has been proved as EX PW 5/A bearing his signatures at point A. He deposed that after preparation of the said scaled site plan, the rough notes and measurements were destroyed by him.
PW6 ASI ( retired) Jagdish has deposed that on 09.09.09 he was posted as Duty Officer at P S Jahangir Puri and on that day at about 5.30 a.m. he received an information through I/C PCR HC Raj Kumar that a boy had been murdered at Mangal Bazar in front of Bank , B Block, Jahangir Puri, Delhi. He deposed that he recorded DD No. 15 A in this regard which was handed over to SI FIR No.505/09 P.S. Jahangir Puri page 15 of 57 S/V Bharat Yadav@ Balli & anr.
Ranbir Singh ( PW18) for investigation who left the P S along with Ct. Devender ( PW17). The said DD No. 15A has been proved as EX PW 6/A. He deposed that on 09.09.09 at about 5.32 a.m. he also received an information through wireless operator of P S Jahangir Puri that a boy had been murdered at Mangal Bazar Chowk, B Block, Jahangir Puri, Delhi and to send the SHO as soon as possible. PW6 deposed that he recorded the said information vide DD No. 16A, which has been proved as EX PW 6/B, and after recording the same handed it over to SI Ranbir Singh (PW18) to further hand over the same to the SHO, who was on patrolling in the area and also informed the SHO in this regard. He further deposed that on 09.09.09 at about 8.30 a.m. he received a rukka through Ct. Devender ( PW17) sent by PW18 on receipt of which he recorded DD No.20 A ( Kaiymi), copy of which has been proved as EX PW 6/C. PW6 deposed that he made endorsement EX PW 6/D on the rukka and thereafter the case FIR was got registered through a computer operator and after registeration of the case the investigation was assigned to PW19 Inspector Shanker Lal Meena and he also made DD No. 21A(EX PW 6/E) in this regard. He deposed that after registration of the case, the rukka in original and copy of FIR were handed over to PW17 for further handing over the same to SHO. The computerized copy of FIR has been proved as EX PW 6/F. PW7 H C Rajesh has deposed to the effect that he was working as MHC(M) at P S Jahangir Puri. He has deposed regarding the deposit and taking out of FIR No.505/09 P.S. Jahangir Puri page 16 of 57 S/V Bharat Yadav@ Balli & anr.
pullandas by the police officials from him and the entries made by him in this regard in register No.19. The said entries have been proved as EX PW 7/A to EX PW 7/T. He deposed that as long as the exhibits remained in his possession, he did not tamper with the same and the same remained intact.
PW8 Dr. Sanjay Kumar was CMO BJRM Hospital,Jahangir Puri, Delhi and deposed that he was deputed by M.S. BJRM Hospital to depose on behalf of Dr. Malti, the then CMO of the hospital, who has left the services from the hospital and her present whereabouts are not known. He deposed that the M.E. No. 74816 and 74807 both dated 09.09.09 of Bharat Yadav @ Balli and Hemant Kumar were prepared by Dr. Vineet, the then J.R., under the supervision of Dr. Malti. The said M.Es. have been proved as EX PW 2/A and EX PW 2/B respectively and PW8 deposed that the said M.Es. bear the signatures of Dr. Malti at point B. PW8 deposed that he has identified her signatures as he had seen her writing and signing during the course of his duties. It is pertinent to note that in this regard the testimony of PW2 and PW8 has to be read together.
PW9 Dr. V.K. Jha Medical Officer, BJRM Hospital, Jahangir Puri, Delhi deposed to the effect that on 09.09.09 he conducted the postmortem on the dead body of Brijesh @ Sonu ( deceased), 21 years male and that the body was sent by Inspector S.L. Meena ( PW19) and was also identified by him. The postmortem report has been proved as EX PW 9/A bearing signatures of PW9 at point A. He also deposed regarding the application moved before him by the IO FIR No.505/09 P.S. Jahangir Puri page 17 of 57 S/V Bharat Yadav@ Balli & anr.
for subsequent opinion regarding the weapon of offence. The detailed diagram of the knife prepared by PW9 has been proved as EX PW 9/B bearing his signatures at point A and his subsequent opinion has been proved as EX PW 9/C bearing his signatures at point A. PW9 also correctly identified one knife of dagger type as received by him in a sealed parcel and which was examined by him and same has been proved as EX P3. PW9 is a material witness and his detailed testimony will be discussed during the later part of the judgment.
PW10 Ct. Dharmender Singh deposed that on 09.09.09 he was posted at P S Jahangir Puri and along with PW14 Ct. Pradeep Kumar was patrolling in the area of P S Jahangir Puri when at about 11 a.m., PW18 SI Ranbir Singh called them at Sulabh Shochalya at B Block park, Jahangir Puri, Delhi on telephone and both of them reached at the spot where they found PW18, PW1 and PW3. He deposed that one dead body was also lying at the corner of North East of the said Sulabh Shochalya and the same was smeared with blood. He deposed that in the meantime PW19 (IO) also reached there and lifted the blood, earth control and earth with blood which were kept in separate small plastic containers sealed with the seal of "SLM". He also deposed that two complete bricks, two pieces of bricks, one stone and one piece of tile lying there which were stained with blood were also sealed in separate parcels and the parcels were given Sl. No. 1 to 7 and taken into possession vide memo EX PW 1/B and EX PW 1/D. He deposed that one blood stained pair of shoes also lying there FIR No.505/09 P.S. Jahangir Puri page 18 of 57 S/V Bharat Yadav@ Balli & anr.
were seized vide memo EX PW 1/C. He deposed that the dead body was removed from the spot to BJRM Hospital by them where postmortem was got conducted and after postmortem the dead body was handed over to its relatives. He deposed that in the hospital after the postmortem, the doctor handed over a sealed parcel containing clothes of deceased along with blood sample and sample seal to the IO which were taken into possession and seizure memo in this regard was prepared by the IO. He also deposed regarding the arrest of the accused persons upon identification by PW1 and PW3 , their arrest memos and their personal search memos and also regarding the pointing out of place of occurrence by the accused persons. He deposed that thereafter the medical examination of accused was got conducted. He also identified the accused persons present in the court and also identified the pair of shoes (EX P1 collectively) and two bricks and pieces of bricks ( EX P2 collectively) which were seized from the spot.
PW11 SI Matadeen deposed that on 09.09.09 he was posted as Incharge Mobile Crime Team in North West District and on that day on request of the IO, he along with his staff reached at the spot where PW18 and PW19 met them with their staff. PW11 deposed that he inspected the spot and found that one dad body of a male person was lying in the Sulabh Shochalya, B Block, in front of SBI, Jahangir Puri, Delhi and there were injuries on its head,forehead and sharp cut injuries on the neck . He also deposed that there was also sharp FIR No.505/09 P.S. Jahangir Puri page 19 of 57 S/V Bharat Yadav@ Balli & anr.
cut injuries on the abdomen of the dead body, blood stained bricks and pieces of bricks were lying there, the wall of said Sulabh Shochalya was also stained with blood and one blood stained pair of white color shoes was also found lying there. He deposed that since their camera was not in working condition hence a private photographer was called by the IO and the crime scene was got photographed through him. He deposed that he also advised the IO to lift the blood, earth control and blood stained articles from the spot. He deposed that thereafter he prepared the inspection report at the spot and handed over the same to the IO. Inspection report has been proved as EX PW 11/A bearing the signatures of PW 11 at point A. PW12 Ct. Sanjeev has deposed to the effect that on 09.09.09 he delivered the parcels handed over by Duty Officer containing copy of FIR to the Joint C.P., D.C.P. and the Ld. M.M. concerned.
PW13 Anil Sharma is a photographer who was called on 09.09.09 by the police at the spot, where he took 8 photographs of the spot from different angles on the directions of the police with digital camera and handed over the said photographs to the IO. The said photographs have been proved as EX PW 13/A1 to EX PW 13/A8.
PW14 Ct. Pradeep Kumar has deposed on the lines of testimony of PW 10 Ct. Dharmender Singh. He has further deposed regarding the disclosure statements ( EX PW 1/M and EX PW 1/N) made by the accused persons. He also FIR No.505/09 P.S. Jahangir Puri page 20 of 57 S/V Bharat Yadav@ Balli & anr.
deposed that on 10.09.09 he again joined the investigation of the present case along with PW15 H C Jagmohan Singh and PW18 SI Ranbir Singh with the IO. He deposed that both the accused persons were taken out from the lockup and while they along with accused persons were coming out from the police station, PW1 Rajesh Singh met them in front of the police station at the road and also joined them. He deposed that thereafter the accused persons led them at J Block road in between dustbin ( kudedan) and Nala and accused Bharat Yadav @ Balli told them that he had thrown the knife with which he had committed the murder of deceased Brijesh, after commission of the offence. He deposed that accused Hemant Kumar told them that he had thrown the stone with which he had also committed the murder of deceased Brijesh, after commission of the offence. He deposed that thereafter accused Bharat Yadav @ Balli got recovered one knife from near the wall of the dustbin ( kudedan), a piece of cloth was wrapped on the handle of the knife, its blade was rusted and it was having blood stains . He deposed that thereafter a sketch of knife ( EX PW 1/P) was prepared by the IO and the measurements of the knife were also taken. Total length of the knife was 28 cms and its blade was 17 cms. He deposed that accused Hemant also got recovered one blood stained stone and thereafter the knife and blood stained stone were kept in separate plastic bags which were converted into cloth parcels, were sealed with the seal of "SLM" and were taken into possession vide seizure memo - pointing out memo proved as EX PW 1/Q bearing signatures of FIR No.505/09 P.S. Jahangir Puri page 21 of 57 S/V Bharat Yadav@ Balli & anr.
PW14 at point B and signatures of accused persons at point X. He further deposed that thereafter both the accused persons led them to H. No. E1347, Jahangir Puri, Delhi from where accused Bharat Yadav @ Balli got recovered one Tshirt and one jeans pants from the hanger from the room on the ground floor and the said clothes were having blood stains. He deposed that thereafter accused Hemant Kumar @ Monu also got recovered one white color shirt and blue color jeans pants from there which were having blood stains, the said clothes were sealed into two separate cloth parcels with the seal of "SLM" and were taken into possession vide seizure memo EX PW 1/R bearing signatures of PW14 at point B and signatures of the accused persons at point X. PW14 also identified the case property i.e. blood stained shoes as EX P1 (collectively ), two bricks and two pieces of bricks as seized by the IO from the spot as EX P2 ( collectively), one dagger type knife with its handle wrapped in a piece of cloth i.e. the knife which was got recovered by accused Bharat Yadav @ Balli as EX P3, blood stained stone as got recovered by accused Hemant Kumar as EX P4, one blood stained Tshirt and jeans pants as got recovered by accused Bharat Yadav @ Balli as EX P5( collectively) and one blood stained white colored shirt and one jeans pants as got recovered by accused Hemant Kumar @ Monu as EX P6 ( collectively). He also correctly identified both the accused persons as present in the court.
PW15 HC Jagmohan Singh is a witness for recovery of weapon of FIR No.505/09 P.S. Jahangir Puri page 22 of 57 S/V Bharat Yadav@ Balli & anr.
offence and the clothes worn by the accused persons at the time of commission of the offence . He has deposed in this regard on the lines of testimony of PW14. He deposed that EX PW 1/P, EX PW 1/Q and EX PW 1/R all bear his signatures at point C. He also correctly identified the case property i.e. EX P3, EX P4, EX P5 (collectively) and EX P6 ( collectively). He also correctly identified both the accused persons in the court.
PW16 ASI Ved Prakash deposed to the effect that on 19.10.09 he was posted at DIU , Sector11, Rohini, Delhi and on that day he along with PW19 Inspector Shanker Lal Meena ( IO) went to P S Jahangir Puri from where PW16 took three parcels duly sealed with seal of "SLM" containing weapon of offence i.e. knife, stone and brick bats from MHC(M) and thereafter they took the said parcels to BJRM Hospital, Jahangir Puri for subsequent opinion. He deposed that PW19 moved an application to the medical officer PW9 Dr. V. K. Jha seeking subsequent opinion and it was handed over to PW9 along with above said parcels. He deposed that later on PW9 gave subsequent opinion on the back side of application which is EX PW 9/C and the sketch of the knife is EX PW 9/B. He deposed that PW9 also handed over the above said three parcels and at that time those were sealed with the seal of FMT,BJRM Hospital alongwith the sample seal of FMT, BJRM Hospital . He deposed that thereafter they came back to P S Jahangir Puri , the said parcels were deposited with MHC(M) and till the time said parcels remained in his custody those were not tampered with in any FIR No.505/09 P.S. Jahangir Puri page 23 of 57 S/V Bharat Yadav@ Balli & anr.
manner.
PW17 Ct. Devender Sharma deposed to the effect that on 09.09.09 after PW18 received DD No. 15 A, he accompanied PW18 to the spot where they found the body of the deceased with injuries and blood lying near the dead body. PW17 took the rukka to P S Jahangir Puri upon which the case FIR was registered, after getting the case registered he came back to the spot with computerized copy of FIR ( EX PW 6/F) and rukka in original and handed over the same to PW19 ( IO). PW17 also removed the dead body to BJRM Hospital upon directions of PW19 and deposed that after postmortem the dead body was handed over to its relative vide handing over memo EX PW 1/G. PW18 SI Ranbir Singh is the initial IO of the case who deposed to the effect that on 09.09.09 upon receipt of DD No.15 A and DD No. 16A he along with PW17 reached in front of SBI, part of B Block, at Sulabh Shochalya , Jahangir Puri, Delhi, which was not in use and upon entering it he found one dead body of male person aged about 2022 years with pool of blood lying near the North East corner and there were cut marks on the neck, left side of face and head of dead body with blood lying near the dead body. He deposed that in the meanwhile the complainant Rajesh ( PW1) met him there and he recorded the statement of PW1 ( EX PW 1/A) and he also informed the higher police officers, SHO and the Incharge of crime team. PW18 also prepared the rukka which has been proved as EX PW 18/A bearing signatures of PW18 at point A, FIR No.505/09 P.S. Jahangir Puri page 24 of 57 S/V Bharat Yadav@ Balli & anr.
handed over the same to PW17 for registration of the case, PW17 went to the P S for registration of case and thereafter PW17 along with PW19 ( IO) reached at the spot. He deposed that the crime team also reached at the spot, Incharge of crime team ( PW11) inspected the spot and a private photographer i.e. PW 13 was called at the spot, who took the photographs which have been proved as Ex.PW13/A1 to Ex.PW13/A8. He deposed that the dead body was sent to mortuary, BJRM hospital through PW 17. He also deposed about lifting of earth control, blood stained stone, blood stained mud, blood stained shoes, blood stained bricks etc. from the spot. He deposed that Ex.PW 1/B, Ex.PW1/C, Ex.PW1/D and Ex.PW1/S all bear his signatures at point D. He also deposed regarding the conducting of postmortem of the dead body of the deceased and thereafter also the arrest of the accused persons. He deposed that Ex.PW1/H, Ex.PW1/J, Ex.PW1/K, Ex.PW1/L, Ex.PW1/M and Ex.PW1/N bear his signatures at point D. He also deposed that the complainant (PW1) and the father of the deceased (PW3) were also present at the time of arrest of the accused persons. He deposed that thereafter the accused persons led them to the spot, the accused persons pointed out the place from where they had committed the murder of deceased and the IO prepared the pointing out memo which has been proved as Ex.PW1/O bearing his signatures at point C. He deposed that thereafter the accused persons were medically examined at BJRM Hospital. He also deposed regarding the recovery of one knife and one stone at the instance of FIR No.505/09 P.S. Jahangir Puri page 25 of 57 S/V Bharat Yadav@ Balli & anr.
accused Bharat Yadav @ Balli and from accused Hemant Kumar respectively. He deposed that Ex.PW1/P and Ex.PW1/Q bear his signatures at point D. He has also deposed regarding the recovery of clothes of the accused persons at their instance from the house of accused Bharat i.e. the clothes which were being worn by the accused persons at the time of incident. He deposed that seizure memo in this regard i.e. Ex.PW1/R also bears his signatures at point D. He also correctly identified the case property in the Court.
PW 19 Inspector Shankar Lal is the IO of the case who has deposed in detail on the lines of other prosecution witnesses. He further deposed that he prepared the site plan which has been proved as Ex.PW19/A bearing his signatures at point A. The inquest papers prepared by PW 19 have been proved as Ex.PW19/B1 to Ex.PW19/B3. He has also deposed that he moved an application Ex.PW19/C seeking subsequent opinion on the weapon of offence and he obtained the opinion of PW 9 on the back side of his application. He deposed that he deposited the exhibits and case property at FSL, Rohini through HC Gyan Singh and the FSL result has been proved as Ex.PW19/D and Ex.PW19/E. He has also identified the case property in the Court.
9. The case of the prosecution against the accused persons is that in the intervening night of 89.09.2009 at public toilet (Sulabh Sauchalya), opposite SBI Bank, BBlock, Jahangirpuri, Delhi, both of them in furtherance of their common intention committed the murder of Brijesh @ Sonu by stabbing him with knife and FIR No.505/09 P.S. Jahangir Puri page 26 of 57 S/V Bharat Yadav@ Balli & anr.
hitting him with bricks and thereby committed an offence punishable U/s 302/34 IPC.
10. The identity of the deceased is not disputed. It is an admitted fact and the facts of the case also show that the present case is not based on the ocular version of any eye witness but is based on circumstantial evidence. It is proposed to deal with one circumstance after the other to see whether the prosecution has proved its case beyond reasonable doubt or not. Indisputably, there is no eye witness to the occurrence. In catena of judgments , the law regarding circumstantial evidence has been settled by the Hon'ble Supreme Court of India . The Hon'ble Supreme Court of India in case titled as Ramreddy Rajeshkhanna Reddy Vs. State of Andhra Pradesh AIR 2006 SC 1656 has held as follows:
" 20. It is now well - settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis . It is also well settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [ See Anil Kumar Singh Vs. State of Bihar :
(2003) 9 SCC 67 and Reddy Sampath Kumar Vs. State of A.P. MANU/ SC/0559/2005: 2005 Cri LJ 4131]"
FIR No.505/09 P.S. Jahangir Puri page 27 of 57
S/V Bharat Yadav@ Balli & anr.
In the case titled as Vithal Tukaram More Vs. State of Maharashtra 2002 (3) R.C.R. (Criminal) 629: 2002 (3) Crimes 29, Hon'ble Supreme Court of India while referring to its another judgment in State of U.P. Vs. Dr. Ravindra Prakash Mittal 1992 (2) RCR (Crl. ) 25 (SC): AIR 1992 SC 2045 held as follows:
" 12. In the case of State of U.P. Vs. Dr. Ravindra Prakash Mittal, 1992 (2) RCR (Crl. ) 25 (SC): AIR 1992 SC 2045, this court had held that the essential ingredients to prove the guilt of an accused by circumstantial evidence are : (a) the circumstances from which the conclusion is drawn should be fully proved; (b) the circumstances should be conclusive in nature ; (c ) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence ; (d) the circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused.
11.It is proposed to deal with one circumstance after the other to see whether the prosecution has proved its case beyond reasonable doubt or not.
The first circumstance as argued on behalf of the prosecution and the defence was motive of commission of the offence. The Ld. Defence counsel argued that the prosecution has failed to prove any motive on behalf of the accused persons to commit the case crime whereas the Ld. Addl. P P for the State has argued that from the testimony of PW1, PW3 and PW4 the motive to FIR No.505/09 P.S. Jahangir Puri page 28 of 57 S/V Bharat Yadav@ Balli & anr.
commit the crime has been fully established. In this regard the Ld. Defence counsel has relied upon the judgment of Hon'ble Delhi High Court in case titled as Ashok Kumar Vs. State N.C.T. of Delhi 2012 (1) JCC 59 wherein it has inter alia been held as under:
" 14. ........................................................ We further notice that the prosecution was unable to establish any motive in the crime . It has been held in some judgments that normally in circumstantial evidence based cases, the prosecution has to prove motive. The absence of motive becomes material in such cases ; correspondingly motive is not important in the case of direct or ocular evidence".
PW1 Rajesh Singh who is the complainant as well as the maternal uncle ( Mama ) of the deceased has deposed to the effect that the deceased had married with one Aysha daughter of Sh. Badruddin on his own and against the wishes of his parents i.e. PW3 and PW4. He further deposed that prior to the marriage with Aysha, the accused Bharat Yadav @ Balli was having a talking terms with Aysha so that the deceased used to object the same since his marriage. He further deposed that his niece ( Bhanji) namely Ms. Neelam i.e. sister of the deceased also got love married with accused Hemant Kuma @ Monu on her own and against the wishes of her parents i.e. PW3 and PW4 . He deposed that the marriage of Neelam was always objected to by the deceased and due to this there was quarrel and manhandling between the deceased and FIR No.505/09 P.S. Jahangir Puri page 29 of 57 S/V Bharat Yadav@ Balli & anr.
the accused Hemant Kumar @ Monu. He deposed that the deceased was still not happy with the marriage of Neelam with accused Hemant Kumar @ Monu. He deposed that in the year 2009 the deceased went to Haridwar to bring Kawad and during that period the accused Bharat Yadav @ Balli had taken Aysha i.e. wife of the deceased to her village Jorami, Rurki, U.P. and after returning from Haridwar, the deceased came to know that his wife was taken by the accused Bharat Yadav @ Balli to her village, he enquired from the accused Bharat Yadav @ Balli as to why he had taken his wife to her village and some quarrel took place between them. During his examination in chief, PW1 also identified both the accused persons in the court. In crossexamination, PW1 inter alia deposed that he did not know Bharat Yadav @ Balli , however, he used to reside in the next gali from the gali wherein he resides . He deposed that he knew accused Hemant Kumar two years prior to the incident and volunteered that the accused Hemant Kumar @ Monu was brotherinlaw (Jija) of the deceased . He deposed that he had seen the residence of accused Bharat Yadav @ Balli, however, he had not seen the residence of accused Hemant Kumar @ Monu. He further deposed that he could not attend the marriage of deceased or his sister Neelam as he had gone out side Delhi. He deposed that the quarrel between accused Hemant Kumar and deceased did not take place in his presence and he was informed about the same by his sister i.e. PW4 Smt. Nisha . He further deposed in his crossexamination that accused Bharat Yadav @ Balli had not FIR No.505/09 P.S. Jahangir Puri page 30 of 57 S/V Bharat Yadav@ Balli & anr.
taken away Ms. Aysha i.e. wife of the deceased in his presence and he was told the said fact by PW4 i.e. mother of the deceased . He could not tell in whose presence the accused Bharat Yadav @ Balli had taken away Aysha and also did not remember the date, month or time when deceased came to Delhi along with Kawad . It is evident from the testimony of PW1 that he is only a hear say witness regarding the fact of taking away of Aysha by the accused Bharat Yadav @ Balli while the deceased was away to take Kawad . It is further evident that PW1 is also a hear say witness regarding the quarrel between deceased and the accused Hemant Kumar @ Monu . PW1, however, from the above said testimony has proved the fact of the marriage of deceased with Aysha against the wishes of his parents and that prior to their marriage , the accused Bharat Yadav @ Balli was having a talking terms with Aysha and the deceased used to have an objection to the said talking terms of Aysha with accused Brijesh Yadav @ Balli . PW1 has further proved from his testimony that Neelam i.e. sister of deceased had got love married with the accused Hemant Kumar @ Monu on her own and against the wishes of her parents i.e. PW3 and PW4 and that the deceased was not happy with the said marriage.
PW3 Sh. Bijender is the father of the deceased and has deposed in his examination in chief that the deceased was his eldest son and got married with Aysha under love marriage and that the said marriage was not solemnized with their consent. He deposed that ,however, after the court marriage, all the FIR No.505/09 P.S. Jahangir Puri page 31 of 57 S/V Bharat Yadav@ Balli & anr.
ceremonies regarding marriage were got performed by them at EBlock , Jahangir Puri, Delhi and thereafter his daughter Neelam also performed court marriage with accused Hemant Kumar @ Monu . He further deposed that in the year 2009, the deceased went to Haridwar for Kawad and in his ( deceased) absence, the accused Bharat Yadav @Balli took away the wife of deceased from his house to her parental home in Rurki. PW3 specifically deposed that at that time he was not present at his house and when the deceased came back from Haridwar, then an altercation had taken place between accused Bharat Yadav @ Balli and deceased on the issue of taking away Aysha. He deposed that after 4/5 months, Aysha came back from her parental home and started residing with them. In crossexamination, PW3 did not remember the date and time when the altercation took place between deceased and accused Hemant Kumar @ Monu regarding the love marriage of Neelam with accused Hemant Kumar. He deposed that the deceased went to bring Kawad on the 5th day of the month in which the persons go to the Haridwar for the said purpose. He deposed that he did not remember the date when the deceased came back after taking Kawad from Haridwar . PW3 denied the suggestion of the defence that he was intentionally not disclosing the aforesaid dates. The aforesaid suggestion given by the Ld. Defence counsel to PW3 during his crossexamination is an admission on the part of the defence that at some point of time the altercation had taken place between the deceased and the accused Hemant Kumar @ Monu FIR No.505/09 P.S. Jahangir Puri page 32 of 57 S/V Bharat Yadav@ Balli & anr.
regarding the love marriage of Neelam ( sister of the deceased ) with accused Hemant Kumar @ Monu and that the deceased had gone to take Kawad from Haridwar . PW3 further deposed in his crossexamination that the accused Bharat Yadav @ Balli did not take away Aysha in his presence or in the presence of his wife i.e. PW4 and he was told by his neighbor namely Santosh that the Aysha had been taken away by the accused Bharat Yadav @ Balli. PW3 did not know the date or the time when the altercation took place between the deceased and the accused Bharat Yadav @ Balli and deposed that the said altercation did not taken place in his presence. It is thus evident that the testimony of PW3 is only hear say regarding the taking away of Aysha by accused Bharat Yadav @ Balli while the deceased had gone to take Kawad from Haridwar and regarding the altercation between the deceased and the accused Bharat Yadav @ Balli. PW3, however,from his testimony has proved that at some point of time an altercation had taken place between the deceased and the accused Hemant Kumar @ Monu regarding the love marriage of Neelam ( sister of the deceased ) with accused Hemant Kumar @ Monu and that the deceased had gone to take Kawad from Haridwar . He has also proved from his testimony that the deceased got married with Aysha through a love marriage.
PW4 Smt. Nisha i.e. mother of the deceased has deposed in her examination in chief that the deceased got married with Aysha through love marriage,the said marriage was not solemnized with their consent, however, FIR No.505/09 P.S. Jahangir Puri page 33 of 57 S/V Bharat Yadav@ Balli & anr.
after the court marriage, all the ceremonies regarding marriage were got performed by them. She deposed that in the month of Sawan of 2009, the deceased had gone to bring Kawad at Haridwar and in the absence of the deceased, the accused Bharat Yadav @ Balli took away Aysha i.e. her daughter inlaw to her parental village at Rurki and when the deceased came back from Haridwar, an altercation had taken place between deceased and accused Bharat Yadav @ Balli on the issue of taking of Aysha to her parental home by the accused Bharat Yadav @ Balli . She also deposed in her examination in chief that her daughter Neelam had also got married with accused Hemant Kumar @ Monu prior to the murder of the deceased. In crossexamination, PW4 specifically deposed that Aysha was taken away to her parental village by accused Bharat Yadav @ Balli on 10th day of month of Sawan in the year 2009. She deposed that she had lodged complaint regarding the taking away of Aysha by accused Bharat Yadav @ Balli at P S Jahangir Puri but the police did not take any action in the matter, however, she did not make any complaint to the senior police officers in this regard. She further deposed in her crossexamination that the deceased came back with Kawad from Haridwar one day before Chhoti Shivratri ( Shiv teras). She deposed that she also made a complaint to the family members of accused Bharat Yadav @ Balli regarding the taking away of Aysha, however, she deposed that she had gone to the house of her mother on the day on which Aysha was taken by accused Bharat Yadav @ Balli . She deposed that FIR No.505/09 P.S. Jahangir Puri page 34 of 57 S/V Bharat Yadav@ Balli & anr.
she made enquiries in this regard from sister of Aysha on telephone. She deposed in her crossexamination that an altercation took place between accused Bharat Yadav @ Balli and the deceased after a few day of Chhoti Shivratri but she did not remember the exact date and that she went to the police station to lodge a report regarding the said altercation but her report in that regard was not recorded by the police.. The testimony of PW4 shows that PW4 is also a hear say witness regarding the fact of taking away of Aysha by the accused Bharat Yadav @ Balli. The testimony of PW4, however, proves that the deceased had gone to take Kawad in the month of Sawan of 2009 and that an altercation took place between accused Bharat Yadav @ Balli and deceased after a few days of Chhoti Shivratri in 2009 . The testimony of PW4 in this regard seems to be natural and trustworthy.
The cumulative effect of testimonies of PW1, PW3 and PW4 is that from their testimonies, the prosecution has proved beyond reasonable doubt the fact that the deceased and Aysha entered into love marriage, Aysha was on talking terms with accused Bharat Yadav @ Balli prior to her marriage with the deceased and the deceased used to object the talking terms of Aysha with accused Bharat Yadav @ Balli after their marriage. The prosecution has also proved beyond reasonable doubt that an altercation took place between accused Bharat Yadav @ Balli and deceased after a few days of Chhoti Shivratri in 2009 .The prosecution has also proved beyond reasonable doubt that Neelam ( sister FIR No.505/09 P.S. Jahangir Puri page 35 of 57 S/V Bharat Yadav@ Balli & anr.
of deceased) entered into love marriage with the accused Hemant Kumar @ Monu against the wishes of her family, the marriage of Neelam was always objected to by the deceased and that at some point of time the altercation had taken place between the deceased and the accused Hemant Kumar @ Monu regarding the love marriage of Neelam ( sister of the deceased ) with accused Hemant Kumar @ Monu. The prosecution has thus proved beyond reasonable doubt from the testimonies of PW1, PW3 and PW4 that in view of the above said circumstances, both the accused person were nursing a grudge against the deceased and they had a motive to commit the case offence. The prosecution has thus proved beyond reasonable doubt and has established the motive of crime with the accused persons. The said circumstance of motive of crime with the accused persons thus has been fully proved by the prosecution.
12.The next circumstance sought to be established by the prosecution is regarding the last seen theory. Ld. Addl. PP for state argued that PW1 Rajesh Singh (complainant) and PW4 Nisha are the last seen witnesses in this case. He argued that PW1 being maternal uncle (mama) of the deceased and PW4 being mother of the deceased are natural and reliable witnesses. He also referred to the testimonies of PW1 and PW4 and argued that the presence of PW1 and PW4 at the residence of PW4 was natural. He also argued that both these witnesses have deposed that on 8.9.2009 at about 5.00pm, both the accused persons came to the house of PW4 and called the deceased and told him to accompany them FIR No.505/09 P.S. Jahangir Puri page 36 of 57 S/V Bharat Yadav@ Balli & anr.
as they were having some work with him, the deceased did not return till 9.30 10.00 p.m. upon which PW1 went in search of the deceased and ultimately, the dead body of deceased was found on 9.9.2009 at 5.15 a.m. at Sulabh Shauchalya near Bblock park, in front of SBI, Jahangir Puri. He also referred to the postmortem report ( Ex.PW9/A) which was conducted on the dead body of the deceased Brijesh @ Sonu on 9.9.2009 at 3.00pm. He also referred to the testimony of PW9 and Ex.PW9/A mentioning that time since death was 15 hours i.e the approximate time of death was 12.00 midnight in the intervening night of 8 9.9.2009.
On the other hand, Ld. Counsel for accused persons argued that the time gap between discovery of body and last seen evidence was of approximately 12 hours and in relation to time of death was approximately 7 hours. He argued that the time gap was sufficient for deceased to come in contact with many other persons and it cannot be assumed that the deceased remained in the company of accused persons throughout that time or at least till his death. He also argued that the prosecution has failed to prove that in the light of facts and circumstances of the case, there was no possibility of any other person meeting and approaching the deceased at the place of incident or before the commission of the crime. He argued that the place of incident was not in the exclusive possession of the accused persons and that the prosecution has failed to show that there was no possibility of any intrusion in that place by any third party. He FIR No.505/09 P.S. Jahangir Puri page 37 of 57 S/V Bharat Yadav@ Balli & anr.
argued that the prosecution has failed to prove the last seen evidence and referred to the judgment of the Hon'ble Delhi High Court in case titled as Ram Mohan Vs. State of NCT of Delhi 2012 CRI. J.745 and also to the judgments of Hon'ble Supreme Court of India in case titled as State of Goa V. Sanjay Thakran (2007) 3SCC 755:AIR 2007 SC (Supp) 61 and Ramreddy Rajeshkhanna Reddy and Anr. Vs. State of Andhra Pradesh AIR 2006 SC 1656: (2006) 10 SCC 172.
As per the case of prosecution, PW1 and PW4 are the last seen evidence relied upon by the prosecution. PW1 has deposed in this regard that on 08.09.09 he went to the house of his sister Smt. Nisha ( PW4) at E1418, Jahangir Puri, Delhi, at about 5 p.m both the accused persons came to the house of PW4 , called for the deceased and told him to accompany them as they were having some work with him. He also deposed that both the accused persons accordingly took his nephew Brijesh @ Sonu ( deceased) with them and since then during the whole night the deceased did not return to his house. PW1 deposed that his brotherinlaw ( PW3) came at about 88.30 p.m. in the house from Village Bullandshahar, U.P., when the deceased did not return to the house till 9.30 10 p.m. then he along with PW3 went in search of the deceased, searched in the parks and other areas and at about 5.15 a.m. ( on 09.09.09) when they reached Sulabh Shochalya near BBlock Park, which was not in use and was situated in front of SBI, Jahangir Puri, Delhi then they saw the dead FIR No.505/09 P.S. Jahangir Puri page 38 of 57 S/V Bharat Yadav@ Balli & anr.
body of the deceased inside the Sulabh Shochalya. PW4 Smt. Nisha has deposed in her examination in chief to the effect that on 08.09.09 it was birthday of her daughter Pannu, a small function was arranged by her at her house E 1418, Jahangir Puri, Delhi and her husband ( PW3) had gone to his native village at Bullandshahar on 07.09.09. She further deposed that her brother Rajesh ( PW
1), the wife and children of PW1, she herself and her children were present at her house due to the birthday of her daughter Pannu, at about 5 p.m. ( on 08.09.09) both the accused persons came to her house, called her son ( deceased), told him that they wanted to talk with him, they both thereafter took the deceased with them and thereafter the deceased never came back. She also deposed that in the early morning ( 09.09.09) she came to know that her son ( deceased) had been murdered and his dead body has been found lying at Sulabh Shochalya in front of SBI, Jahangir Puri, Delhi.
It is evident from the testimonies from PW1 and PW4 that as per the case of prosecution the deceased left with both the accused persons upon the asking of accused persons from his house at about 5 p.m. on 08.09.09 and thereafter the dead body of the deceased was found at above said Sulabh Shochalya on the next day i.e. on 09.09.09 at about 5.15 a.m. As per the testimony of PW9 and the postmortem report EX PW 9/A ( postmortem was conducted on 09.09.09 at 3 p.m.) , the time since death was approximately 15 hours i.e. the time of death was about 12 midnight in the intervening night of 8 FIR No.505/09 P.S. Jahangir Puri page 39 of 57 S/V Bharat Yadav@ Balli & anr.
9.09.09. It is thus evident that time gap between discovery of body and last seen evidence was about 12 hours and the time gap between last seen evidence and time of death is about 7 hours. The Hon'ble Delhi High Court in case titled as Ram Mohan ( supra) has inter alia held as under :
"24. We now come to another important aspect of the case and that is with regard to the evidence which is categorised as " last seen evidence". PW4 Rishi Raj has testified that on 2203 2003 at about 7.30 p.m. he left Ballu in the company of the appellants at the said temple . The dead body, which we shall assume to be that of Ballu, was found at about 8.35 a.m. On 23032003. Even if we believe the prosecution version we find that the time gap between Ballu being last seen alive and his dead body being discovered is of 13 hours . So many things could have happened in these 13 hours. Ballu may have come in contact with so many other persons . It cannot be assumed that Ballu remained in the company of the appellants throughout this time or at least till his death. It may be recalled that as per the medical opinion the time of death was fixed at approximately 12.30 a.m. on 23032003. Thus, even if we take 12.30 a.m. as the terminal point, the time gap still remains to be five hours.
25. In this context it would be instructive to refer to the Supreme Court decision in the case of State of Goa V. Sanjay Thakran (2007) 3 SCC 755: ( AIR 2007 SC ( Supp)
61) wherein the Supreme Court observed as under: "34. From the principle laid down by this court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence FIR No.505/09 P.S. Jahangir Puri page 40 of 57 S/V Bharat Yadav@ Balli & anr.
charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for application of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together in the crime coming to light is after a considerable long duration. There can be no fixed straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is a long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such an accused person. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting and approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For, instance, if it can be demonstrated by showing that the FIR No.505/09 P.S. Jahangir Puri page 41 of 57 S/V Bharat Yadav@ Balli & anr.
accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case".
26. Keeping the above principles in mind, we find that it would not be possible for us to conclude that between the time Ballu was last seen alive at around 7.30 p.m. on 2203 2003 in the company of the appellants and the time his body was discovered at about 8.35 a.m. the next morning, there was no possibility of Ballu coming in contact with any person or persons other than the appellants. The prosecution has not been able to bring any evidence from which we could infer that there was no possibility of any other person being the author of the crime. The place where Ballu was left in the company of the appellants was also not such a place which was in the exclusive possession of the appellants. It was a temple to which the general public had access. Thus, we find that as the time gap is quite considerable, the circumstance of having been last seen together even if proved, cannot fasten the guilt on the appellants."
Similarly, in case titled as Ramreddy Rajeshkhanna Reddy ( supra) the Hon'ble Supreme Court of India while discussing the last seen theory held as under: " 21. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration .
FIR No.505/09 P.S. Jahangir Puri page 42 of 57
S/V Bharat Yadav@ Balli & anr.
In State of U.P. V. MANU/ SC/0090/2005:Satish 2005
CriLJ 1428, this Court observed:
22. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together , it would be hazardous to come to a conclusion of guilt in those cases. ........"
In the case in hand the time gap between discovery of body and the last seen evidence is about 12 hours and the time gap between last seen evidence and time of death is about 7 hours. In this case keeping in view the circumstances of the case the time gap is of a large duration and the prosecution has failed to establish that the time gap between the point of time when the accused persons and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The prosecution in this case has not been able to lead such an evidence that likelihood of any person other than the accused persons being the author of the crime become impossible. The prosecution in the light of the facts and circumstances of the case has not been able to prove FIR No.505/09 P.S. Jahangir Puri page 43 of 57 S/V Bharat Yadav@ Balli & anr.
that there was no possibility of any other person meeting and approaching the deceased in the intervening period at the place of the incident or before the commission of the alleged crime . Further, PW1 has admitted in his cross examination that Mangal Bazar is held near the Sulabh Shochalya ( the place where the dead body of the deceased was found) and on the day of incident, it was Tuesday and Mangal Bazar was there. PW1 has also admitted that the road in front of Sulabh Shochalya is used by the vegetable vendors and others, there is crowd in the Mangal Bazar and the Mangal Bazar used to start at 2 p.m. and continued till 12 a.m. ( midnight). In these circumstances, the possibility of accused persons being only the author of crime has not been proved by the prosecution beyond reasonable doubt. In view of above said discussion and the above said law, the prosecution has failed to fully prove the above said circumstance i.e. the last seen theory and has failed to prove beyond reasonable doubt and conclusively the said circumstance of last seen evidence.
13. The next circumstance sought to be established by the prosecution is regarding the recovery of weapons of offence at the instance of the accused persons. The Ld. Additional P P for the State referred to the testimonies of various prosecution witnesses and has argued that the weapons of offence were recovered at the instance of the accused persons on 10.09.09. in the presence of PW1, PW14, PW15 , PW18 and PW19 . He also referred to the seizure memo pointing out EX PW 1/Q in this regard and deposed that the accused FIR No.505/09 P.S. Jahangir Puri page 44 of 57 S/V Bharat Yadav@ Balli & anr.
Bharat Yadav @ Balli got recovered one knife with which he had committed the murder of deceased and accused Hemant Kumar @ Monu got recovered one blood stained stone from near the wall of a dustbin ( kudedan) i.e. a place not visible to the public and argued that the accused persons had knowledge of the fact that they were aware about the location of the place where they had hidden the weapons of offence after commission of the offence. He has also referred to the disclosure statements of both the accused persons which have been proved as EX PW 1/M and EX PW 1/N and also referred to Section 27 of The Indian Evidence Act, 1872. He also referred to the postmortem report EX PW 9/A, the diagram of the knife as prepared by PW9 i.e. EX PW 9/B and the subsequent opinion regarding the weapons of offence obtained from PW9 i.e. EX PW 9/C. He argued that the said knife as got recovered by accused Bharat Yadav @ Balli was used by the said accused in committing murder of the deceased and the said knife has been proved as EX P3 and the blood stained stone as got recovered by accused Hemant Kumar @ Monu as used by the said accused in committing the murder of the deceased has been proved as EX P4 in the testimonies of the prosecution witnesses. He also referred to the testimony of PW19 (IO) who has proved the FSL reports dated 27.09.10 including the FSL report of Biology Division as EX PW19/D and EX PW 19/E respectively as given by Ms. Manisha Upadhyaya Senior Scientific Officer ( Biology), FSL cum Ex Officio Chemical Examiner to the Govt. of NCT of Delhi and argued that the said FIR No.505/09 P.S. Jahangir Puri page 45 of 57 S/V Bharat Yadav@ Balli & anr.
reports are also per se admissible U/S 293 CrPC and submitted that human "A" Group was found on the said stone and the blood group of the deceased coming out from the said report is also "A" Group. He argued that the accused has failed to show any reasonable explanation regarding the knowledge about the location of weapons of offence and there consequent recovery from a place not accessible to the view of general public.
Ld. counsel for accused argued that the alleged place of recovery of weapons of offence at the instance of accused persons was from an open public place and was visible to the open eye and hence no reliance can be placed on the said alleged recoveries u/s.27 of the Evidence Act. He also referred to the testimonies of PW1, PW14, PW15, PW18 and PW19 in this regard.
PW1 (Complainant of the case) has deposed in this regard that on 10.9.2009, both the accused persons led the police party to JBlock, Jahangir Puri and they both pointed out the place behind the Kudedaan in between kudedaan and nala and accused Bharat got recovered one knife. He also deposed that accused Hemant also got recovered one blood stained stone from there. PW19 Inspector Shankar Lal (IO) of the case has deposed in this regard that pursuant to their disclosure statements, accused Bharat Yadav took them to JBlock road, near public dustbin and pointed out the place near a drain opposite public dustbin and thereafter took out a knife from near the wall of dustbin and that a blood stained piece of stone was also produced by accused Bharat Yadav FIR No.505/09 P.S. Jahangir Puri page 46 of 57 S/V Bharat Yadav@ Balli & anr.
and Hemant Kumar. There is contradiction in the testimony of PW1 and PW19 to the effect that as per PW1, accused Bharat got recovered one knife whereas accused Hemant got recovered one blood stained stone, however, PW19 has deposed that knife was recovered at the instance of accused Bharat Yadav whereas the piece of stone was recovered at the instance of both the accused persons i.e not only at the instance of accused Hemant. The seizure memo pointing out memo Ex.PW1/Q on the other hand mentions that both the said knife and piece of stone were recovered at the joint instance of both the accused persons. It is a material contradiction between the testimony of PW1, PW19 and Ex.PW1/Q. Further, neither PW1 nor PW19 have deposed that at the time of above said recovery, the knife and the blood stained piece of stone stood concealed in the bushes and were not visible to the open eye. In these circumstances, no reliance can be made upon above said recoveries which were made from an open public place and were ordinarily visible to the public at large. The Hon'ble Delhi High Court in case titled as Jaivir Singh V. State (Delhi Administration), 1996 JCC 166 has inter alia held as under:
"The weapon of offence i.e knife which is stated to have been recovered from some bushes at a public place in the Nehru Place is sought to be linked with the appellant on the basis of the disclosure allegedly made by the appellant which is portion A to A in Ex.PW14/C. ................................................. .................................... It is also to be mentioned here that the knife is stated to have been seen recovered from the bushes in a public FIR No.505/09 P.S. Jahangir Puri page 47 of 57 S/V Bharat Yadav@ Balli & anr.
place i.e Nehru Place. It is not stated by the Investigating Officer that at the time knife was recovered from the bushes it stood concealed in the bushes and was not visible to the open eye. If that is so, such a recovery made from an open public place cannot be given any important. ( See Kora Ghasi Vs. State of Orissa, 1983 SCC (Cri)387). ....................................."
The Hon'ble Supreme Court of India in case titled as State of H.P. Vs. Jeet Singh AIR 1999 SC 1293 has held as under:
"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." ( Emphasis supplied)
14. In the present matter, as per Ex.PW1/Q, the alleged weapons of offence i.e knife and piece of stone were recovered on 10.9.2009 at the instance of both the FIR No.505/09 P.S. Jahangir Puri page 48 of 57 S/V Bharat Yadav@ Balli & anr.
accused persons near the drain behind the kudedaan near the wall of kudedaan of JBlock, Jahangirpuri, Delhi. It is pertinent to note that PW1 or PW19 have nowhere deposed whether the said place of recovery was ordinarily visible to others or not. It has also not been mentioned or deposed that the said weapons of offence were lying concealed or recovered or was accessible to others. It is further pertinent to note that the date of the alleged offence is the intervening night of 89.09.2009, whereas as per Ex.PW1/Q ie. the seizure memo cum identification memo, the alleged recovery of incriminating articles was effected on 10.9.2009 at the instance of the accused persons. The place of public dustbin in a locality is not only ordinarily accessible to the general public but is also ordinarily visible to others and is rather used by the general public at any time of the day or night. The time of alleged recovery has not been mentioned in Ex.PW1/Q, however, it is clear that the entire day of 9.9.2009 and some part of 10.9.2009 elapsed between the date of offence and alleged recovery of incriminating articles at the instance of accused persons. In the meanwhile, the said public dustbin would have been used on various occasions by different pubic persons and the place of recovery would have also been ordinarily visible to others. It is also a possibility that the said public dustbin may be have been cleaned by the sweeper or other govt. agencies on 9.9.2009 or 10.9.2009 prior to the alleged pointing out and alleged recovery by the accused persons. The prosecution has thus failed to prove beyond reasonable doubt the alleged recovery of weapons of offence at the FIR No.505/09 P.S. Jahangir Puri page 49 of 57 S/V Bharat Yadav@ Balli & anr.
instance of accused persons. As a consequence, the said circumstance of recovery of weapons of offence (Ex.P3 and Ex.P4) at the instance of accused persons thus has not been fully and conclusively proved by the prosecution. In view of the said discussion, the diagram of Ex.P3 i.e Ex.PW9/B and the subsequent opinion given by PW9 i.e Ex.PW9/C pales into insignificance.
15. The next circumstance sought to be established by the prosecution is regarding the recovery of the clothes worn by the accused persons at the time of case incident which were having the blood stains of same blood group as of the deceased.
The Ld. Addl. P P for the State argued after referring to the testimony of PW 1 and PW18 that accused Bharat Yadav @ Balli got recovered one jeans pants and one Tshirt ( EX P5 collectively) from the room on ground floor of his house saying that he was wearing the said clothes at the time of commission of the said offence. He also argued that accused Hemant Kumar @ Monu also got recovered one white colour shirt and jeans pants ( EX P6 collectively) which he was wearing at the time of commission of the said offence. He submitted that these clothes were seized vide seizure memo EX PW 1/R. He also referred to the FSL report dated 27.09.10 which has been proved as EX PW 19/D and FSL report (Biology Division) dated 27.09.10 which has been proved as EX PW 19/E. He argued that after going through the said FSL reports it becomes clear that the blood group of deceased was "A" and the same blood group was found on EX FIR No.505/09 P.S. Jahangir Puri page 50 of 57 S/V Bharat Yadav@ Balli & anr.
P5 ( colly) and EX P6 ( colly) i.e. the clothes worn by the accused persons at the time of commission of case crime. He contended that the prosecution has been able to conclusively establish the said circumstance against the accused persons.
On the other hand Ld. counsel for accused persons argued that the blood group cannot be conclusive to establish a circumstance and various persons can have "A" blood group. He further argued that the prosecution/ investigating agency did not get done the blood grouping of the accused persons and even no DNA test was got conducted by the prosecution/ investigating agency. He thus contended that the said circumstance has not been fully proved and no conclusion can be drawn from it against the accused persons.
As per the case of prosecution both the accused persons got recovered clothes which they were wearing at the time of commission of alleged offence and the above said FSL reports show that the said clothes i.e. EX P5 ( Colly) and EX P6 ( Colly) were having the blood of group "A" which was also the blood group of the deceased. It is, however, an admitted fact that various persons including accused persons could have blood group "A". It is also an admitted fact that no DNA test was done to conclusively prove that the blood on EX P5 ( Colly) and EX P6 ( Colly) was that of the deceased . It is very surprising as to why the investigating agency did not get conducted DNA test which could have accurately proved the genesis of human blood on EX P5 ( Colly) and EX P6 ( Colly). It is FIR No.505/09 P.S. Jahangir Puri page 51 of 57 S/V Bharat Yadav@ Balli & anr.
a material lacuna in the investigation of the case by the investigating agency. Further, the blood test of the accused persons could also have been conducted by the investigating agency to ascertain the blood groups of the accused persons as well. In these circumstances and discussion the prosecution has failed to fully prove the above said circumstance against the accused persons and no conclusion can be drawn against the accused persons by way of above said recovery of clothes.
16. The last circumstance sought to be established by the prosecution against the accused persons is injuries on the body of both the accused persons corresponding to the date and time of the incident.
Ld. Addl. P P for the State referred to testimony of PW2 Dr. Neeraj Choudhary, CMP, BJRM Hospital, Jahangir Puri, Delhi who proved the medical examination i.e. M.E. No. 74816 of accused Bharat Yadav @ Balli as conducted on 09.09.09 at 10.15 p.m. as EX PW 2/A and also proved the M.E. No. 74807 of accused Hemant Kumar @ Monu as conducted on 09.09.09 at 10 p.m. as EX PW 2/B . He argued that both the said M.Es. show that the accused persons had recent injuries corresponding to the time and date of incident. He while referring to EX PW 2/B argued that the old wound on the left hand and old abrasion on the right hand of accused Hemant Kumar @ Monu was only one day back and, therefore, the old abrasion on left palm and old wound on left greater toe of accused Bharat Yadav @ Balli in EX PW 2/A should also be FIR No.505/09 P.S. Jahangir Puri page 52 of 57 S/V Bharat Yadav@ Balli & anr.
treated as one day back on the same analogy . He thus argued that the accused persons must have suffered these injuries during the scuffle with the deceased at the time of incident and in the absence of any plausible explanation from the accused persons, the said circumstance should be read against them U/S 106 of the Indian Evidence Act, 1872 as the burden of proving the fact especially within the knowledge of the accused persons lie upon them.
On the other hand Ld. Defence counsel argued that both the said M.Es. were prepared by the same doctors and the said doctors have not mentioned in EX PW 2/A that the injuries were one day back, therefore, the court cannot read 'one day back' in EX PW2/A in the absence of mentioning any such thing in EX PW 2/A . He further argued that U/S 106 of the Indian Evidence Act, 1872, the obligation of proving a fact within special knowledge of a person arises only after the prosecution has proved its case beyond reasonable doubt. He also referred in this regard to the judgment of Hon'ble Supreme Court of India in case titled as Joydeb Patra Vs. State of West Bengal 2013 CRI.L.J 2729 ( Supreme Court) .
As mentioned above, PW2 has proved the M.Es. of accused Bharat Yadav @ Balli and accused Hemant Kumar @ Monu both conducted on 09.09.09 at 10.15 p.m. and 10 p.m. respectively as EX PW 2/A and EX PW 2/B respectively. In EX PW 2/B, the doctors concerned have mentioned ' old wound left hand ( one day back) and old abrasion Rt hand ( one day back )' whereas , in EX PW 2/A the same doctors have mentioned 'old abrasion left palm and old wound left FIR No.505/09 P.S. Jahangir Puri page 53 of 57 S/V Bharat Yadav@ Balli & anr.
greater toe'. The submissions of Ld. Defence counsel in this regard have substance because as both the said M.Es. were prepared by the same doctors, therefore, nothing stopped them from mentioning 'one day back' in EX PW 2/A also. In these circumstances, the court cannot read ' one day back' in EX PW 2/A also. As far as EX PW 2/B is concerned, the simple injuries on the person of accused Hemant Kumar @ Monu have been mentioned on left hand and right hand. In this regard also I am in agreement with submissions of Ld. Defence counsel that only after the prosecution discharges the burden of proof of guilt of the accused beyond reasonable doubt, the accused could be asked to prove any fact within his special knowledge U/S 106 of the Indian Evidence Act, 1872 to establish that he was not guilty. The Hon'ble Supreme Court of India in case Joydeb Patra ( supra) has held as under:
" ............ This court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh V. State of Punjab, (2001) 4SCC 375: ( AIR 2001 SC 1436: 2001 AIR SCW 1292), this Court held:
"We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge FIR No.505/09 P.S. Jahangir Puri page 54 of 57 S/V Bharat Yadav@ Balli & anr.
regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
Similarly, in Vikramjit Singh V. State of Punjab, (2006) 12 SCC 306: (2006 AIR SCW 6197), this Court reiterated:
"Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute."
In the case in hand, as discussed above, the prosecution has failed to prove most of the circumstances conclusively to prove the guilt of the accused persons by circumstantial evidence in this case. As the prosecution has not been able to discharge its burden of establishing beyond reasonable doubt that the accused persons murdered the deceased, therefore, the prosecution cannot take recourse to Section 106 of the Indian Evidence Act, 1872 to shift the burden upon the accused persons to prove the circumstance under discussion. In these circumstances the prosecution has failed to conclusively prove the present circumstance conclusively against the accused.
17. The settled law relating to circumstantial evidence has earlier been discussed in this judgment. Further, the Hon'ble Supreme Court of India in case titled as Earabhadrappa V. State of Karnatka AIR 1983 SC 446 (1) has held as under: "5. In cases in which the evidence is purely of a FIR No.505/09 P.S. Jahangir Puri page 55 of 57 S/V Bharat Yadav@ Balli & anr.
circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence........"
18. As discussed above, the prosecution in the present case has only been above to prove only one circumstance conclusively against the accused persons i.e. the motive of commission of the offence and has failed to prove other circumstances conclusively against the accused persons. Prosecution thus has failed to prove conclusively the circumstances and the facts as established by the prosecution cannot be said to be consistent only with the hypothesis of the guilt of accused persons and inconsistent with their innocence. The circumstance as proved by the prosecution on record also does not exclude the possibility of guilt of any person other than the accused persons. The prosecution has thus failed to prove beyond reasonable doubt the guilt of the accused persons in this case by way of circumstantial evidence. The prosecution has, therefore, failed to prove beyond reasonable doubt that in the intervening night of 89.09.09 at public toilet ( Sulabh Shochalya), opposite SBI Bank, B Block, Jahangir Puri, Delhi they in furtherance of their common intention committed the murder of Brijesh @ Sonu ( deceased) by stabbing him with knife and hitting him with bricks and stones . The accused FIR No.505/09 P.S. Jahangir Puri page 56 of 57 S/V Bharat Yadav@ Balli & anr.
persons are thus entitled to benefit of doubt and are entitled to be acquitted U/s 302/34 IPC . The accused persons i.e. Bharat Yadav @ Balli and Hemant Kumar @ Monu are thus both acquitted in the present case U/S 302/34 IPC.
Both the accused persons be released from Judical Custody, if not required in any other case.
File be consigned to Record Room.
Announced in the open court ( Amit Bansal)
on 10 day of July, 2014
th
Additional Session Judge04: Rohini Courts
Delhi.
FIR No.505/09 P.S. Jahangir Puri page 57 of 57
S/V Bharat Yadav@ Balli & anr.
FIR No.505/09 P.S. Jahangir Puri page 58 of 57