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Delhi District Court

State vs . Phool Prasad on 29 January, 2021

   IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL SESSIONS JUDGE­04
                        (NORTH), ROHINI COURTS, DELHI
Session Case No. 58418/2016
CNR No. DLNT01­001583­2014

State             Vs.                               Phool Prasad
                                                    S/o Sh. Panche Sarwariya
                                                    R/o K­285, Nardan Basti,
                                                    Lal Kuan, New Delhi.

                   FIR No.         : 595/2014
                   Police Station : Bawana
                   Under Sections: 302 IPC

Date of committal to Sessions Court:                                     14/11/2014
Date of institution                  :                                   18/11/2014
Date of Argument                     :                                   27/01/2021
Date on which Judgment pronounced :                                      29/01/2021

                                          JUDGMENT

1. Briefly stated, the case of prosecution is that on 29/07/2014, at 7.33 a.m., DD no.8A was recorded at PS Bawana on receipt of information to the effect that a dead body was lying in a room of a plot situated in front of Shamshan wala rasta, Indraj Colony Pyau. The copy of said DD was handed over to SI Narender Kumar for taking necessary action, who along with Ct Jai Prakash left for the spot. On reaching at the aforesaid place, they came to know that the said house was of one Sachin s/o Ram Kishan, R/o H.no. 1143­B, Village Bawana, and it was revealed that in one of outside room of said house, one dead body was lying and there was trail of blood from inside the room towards threshold of said room. On peeping through the window of the said room, one dead body was found to be lying. Crime team was called at the spot and the said room was got photographed from outside. The lock of the said room was broken­open. On opening the door of the room, one made dead body was found lying on the ground, on a mat and the face of the dead body was covered with a towel. Dead body was got photographed through crime team. On inspection of the dead body, one plastic rope was found around SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 1 of total pages 39 the neck of the dead body with which it seemed that the deceased was strangulated. With the rope, one wooden chip was pasted. The head of the dead body was towards east direction, whereas its feet were towards west direction. There was one black coloured "taveez" on the right hand of the deceased. The blood from the dead body of the deceased was trailing from inside the room towards the threshold of the said room. The mouth of the dead body was open and the tongue was protruding out. The dead body was sent to the mortuary of BSA hospital for preservation in the supervision of Ct Jaiprakash.

2. From the spot, SI Narender took into possession the blood sample on gauze, blood stained earth control, bloodstained clothes and broken lock of the room into police possession. The identity of deceased could not be revealed. From the inspection of the dead body, contents of DD entry and circumstances, offence u/s 302 IPC was found to be committed. SI Narender prepared a tehrir and got registered the FIR. Upon registration of FIR, the investigation of the case was marked to Inspector Ranjeet Dhaka.

3 During investigation, Inspector Ranjeet Dhaka prepared rough site plan of the place after its inspection. On enquiry from house owner Sachin, the identity of deceased was revealed as Sant Ram s/o Lala Ram, R/o Village­Kapurpur, District Hardoi, U.P., who was residing as tenant in another house of Sachin at Khasra no. 133/11, Plot no. 217, Shamshan Ghat Road, Indraj Colony, Bawana, Delhi. From the house owner Sachin, it was revealed that one Phool Prasad was also residing with Sant Ram in the said tenanted room, who was missing after the incident.

4 Brief facts were prepared. On 01/08/2014, postmortem on the body of deceased was got conducted after arrival of father and wife of the deceased. After postmortem, the dead body was handed over to Lala Ram, father of deceased, for cremation. On enquiry from Umesh s/o Shyam Lal, brother­in­law of the deceased, it was SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 2 of total pages 39 revealed that his 'jija' Sant Ram (since deceased) was using mobile no. 8010180895. The CDR of said mobile phone was obtained. On analysis of the CDR, it was revealed that mobile no. 8010180895 of Sant Ram was in touch with mobile no. 9540499734. CAF and CDR of mobile no. 9540499734 were obtained, which was found registered in the name of one Satish s/o Mahipal, R/o K­223, Narthan Basti, Lal Kuan, Delhi and on enquiry, said Satish revealed that he had given the said mobile number 9540499734 for use to his acquaintance Phool Prasad. On the identification of said Satish, accused Phool Prasad was apprehended from K­285, Narthan Basti, Lal Kuan, Delhi. On interrogation, Phool Prasad had admitted that he had killed Sant Ram by strangulating him with a rope. Accused Phool Prasad was arrested in the present case. His disclosure statement was recorded. Pursuant to his disclosure statement, accused Phool Prasad produced one key from the black colour bag of the room with which he had locked the room where he had killed Sant Ram (deceased). There was one red coloured strip on the key. The said key was taken into possession vide a seizure memo. PC remand of accused was obtained. Accused also pointed out the place of occurrence and at his instance pointing out memo was prepared. The search for mobile phones of Sant Ram (since deceased) and of accused was made at the disclosed places but despite search, it could not be recovered. Postmortem report was collected and as per opinion of autopsy surgeon the death was due to asphyxia consequent upon ligature strangulation.

5. Exhibits were sent to FSL. Scaled site plan of the place of occurrence was got prepared. Statements of witnesses u/s 161 Cr.P.C. were recorded.

6. On completion of investigation, charge­sheet u/s 302 IPC was filed before the concerned Magisterial Court on 14/11/2014 and it was committed to the Court of session on the same day and was received on assignment by Sessions Court on 18/11/2014. It is pertinent to mention here that by the time the challan was filed before the concerned Magisterial Court, FSL result was awaited.

SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 3 of total pages 39

7. Vide order dated 16/12/2014, charge u/s 302 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.

8. It is pertinent to mention here that supplementary charge­sheet qua subsequent opinion regarding weapon of offence and CDRs has been filed before the concerned Magisterial Court on 23/02/2015 and it was committed to the Court of Sessions on 28/02/2015 and was received by this Court on 03/03/2015.

9. In order to prove its case, prosecution has examined 24 witnesses in all.

The details of said witnesses are as under:­ S. Name of prosecution witness Purpose of examination No .

1 PW1 ASI Mahender Singh. PW­1 was working as duty officer on 29.07.2014 and has recorded FIR in question on the basis of rukka sent by SI Narender. He has proved computerized copy of FIR as Ex.PW1/A(OSR), endorsement on the rukka as Ex. PW1/B and certificate u/s 65B of Indian Evidence Act as Ex.

PW1/C. PW2 Sachin PW­2 is the owner of property bearing No. 1143B, Bagwan Pana, Bawana, Delhi, the rented premises in which Sant Ram was residing as a tenant and accused Phool Prasad also resided in the said room alongwith Sant Ram for about 15­20 days. This witness has proved seizure memo of documents like photocopies of GPA, Agreement to sell, affidavit and receipt as Ex.

PW2/A and documents annexed with the seizure memo as Ex. PW2/B(collectively). He has also proved the pointing out memo of the room wherein deceased Sant Ram was murdered as Ex. PW2/C. PW­2 has proved the photographs of the room in question as Ex. PW2/D­1 to Ex.

PW2/D­17 and photographs of the dead body of deceased Sant Ram as Ex. PW 2/D­11 to Ex.

SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 4 of total pages 39 PW2/D­17.

3 PW3 Dr. N. Masand, Medical Officer, M.V PW­3 had examined accused Phool Prasad on Hospital, Pooth Khurd, Delhi. 18.08.2014 vide MLC No. 3584/14 and proved the said MLC as Ex. PW3/A. He has deposed that he obtained blood sample of the said patient on gauze piece and also in plain vial, sealed the same with the seal of MV hospital and thereafter handed over the same alongwith specimen seal of M.V hospital to HC Satish.

4 PW4 Ct. Shiv Pal PW­4 had collected two sealed pullandas alongwith FSL form from MHC(M) vide R.C No. 244/21/14 on the instruction of IO Inspector Ranjeet Dhaka.

5 PW5 Smt. Anita PW­5 Smt. Anita is wife of deceased Sant Ram and had identified the dead body of deceased Sant Ram in the mortuary of BSA hospital and received the dead body of the deceased vide receipt EX. PW5/B. She has proved her statement given to the IO in this regard as Ex.

PW5/A. 6 PW6 Sh. Lala Ram PW­6, father of the deceased had also identified the dead body of the deceased. He has proved his statement given to the IO as Ex. PW6/A. 7 PW7 Sh. Umesh PW­7 is the relative of the deceased and he has stated to the IO that deceased, who was his brother­in­law was using mobile phone bearing registration No. 8010180895.

8 PW8 Ct. Sunil PW­8 collected six sealed pullandas and four white envelopes containing sample seals from BSA hospital on the instructions of IO and handed over the same to the IO, which were seized by the IO vide seizure memo Ex. PW8/A. 9 PW9 Ct. Pawan Kumar PW­9 took the rukka from SI Narender on 29.07.2014 and handed over the same to Duty Officer HC Mahender, who got registered the FIR in question through computer installed in the P.S. 10 PW10 Ct. Jai Prakash This witness has joined the investigation of the present case alongwith SI Narender and Inspector Ranjeet Dhaka. This witness has reached at the spot alongwith SI Narender and has deposed about the crime scene.

SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 5 of total pages 39 11 PW11 Ct. Yaad Ram PW­11 took three envelopes in official motorcycle and left the P.S at about 11.50 a.m on 29.07.2014 and delivered the said envelopes to concerned area MM, DCP, Outer District and Joint Commissioner of the Police, Northern Range and thereafter returned at the P.S at about 7 p.m. 12 PW12 Ct. Raj Kumar PW­12 was working as photographer with the mobile crime team. He took 17 photographs of the place of occurrence from different angles and proved the negatives of the photographs as Ex.

PW12/A1 to Ex. PW12/A17.

13 PW13 Dr. Yogita Bala, Medical officer. This witness had examined accused Phool Prasad vide MLC No. 3602 and has deposed that on local examination, there was no sign of physical assault/fresh external injuries. He has further deposed that there were old injuries in the form of swelling on left hand near thumb, scar near wrist and little finger and swelling on right hand near fifth metacarpal as told by the patient himself. He has proved the said MLC as Ex. PW 13/A. 14 PW14 Dr. Mukesh Kumar. PW­14 had conducted postmortem on the body of the deceased and proved the report in this regard as Ex. PW14/A. This witness has proved the subsequent opinion dated 15.11.2014 as Ex.

PW14/B. 15 PW14A(inadvertently given serial No. 14 and PW14 was working as MHC(M) at the relevant same be read as PW14/A) HC Vinod time and has proved the photocopies of the relevant entries as Ex. PW14/A(OSR) to Ex.

PW14/F(OSR). He has also proved the photocopy of road certificate register containing RC No. 208/21/14 as Ex. PW14/G and acknowledgement of FSL as Ex. PW14/H. He has also proved the photocopy of road certificate register containing RC No. 209/21/14 as Ex.

PW14/J and acknowledgement of FSL as Ex.

PW14/K. He has also proved the photocopy of road certificate register containing RC No. 244/21/14 as Ex. PW14/L and acknowledgement of FSL as Ex. PW14/M. 16 PW15 ASI Krishan Kumar PW­15 was working as Duty Officer at the relevant time and recorded DD No. 8A in he Roznamcha accordingly. He proved the copy of said DD entry as Ex. PW15/A(OSR) SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 6 of total pages 39 17 PW16 Sh. Satish This witness has deposed that he had purchased SIM connection bearing No. 9540493734 and had given the aforesaid SIM to the accused since accused was known to him for last many years. He has proved the arrest memo of the accused as Ex. PW16/A and his personal search memo as Ex. PW16/B. 18 PW17 HC Devender PW­17 had joined the investigation of the present case alongwith IO Inspector Ranjeet Dhaka on 16.08.2014. This witness has deposed about arrest of the accused, his personal search and the disclosure statement of accused. He has identified the key of the rented premises in the Court as Ex. P­17/1.

19 PW18 ASI Satish This witness had joined investigation with IO Inspector Ranjeet Dhaka and took the accused to M.B hospital for his medical examination. This witness has proved the seizure of blood sample of accused on gauze piece vide seizure memo Ex. PW18/A. 20 PW19 SI Jitender Joshi This witness has deposed that he has joined the investigation of the present case with IO Inspector Ranjeet Dhaka and Ct. Devender on 16.08.2014. He has proved the disclosure statement of accused as Ex. PW19/A, seizure memo of key as Ex. PW19/B, supplementary disclosure statement of the accused as Ex.

PW19/C, seizure memo of mobile phone of Nokia black colour having IMEI No. 358333054586740 as Ex. PW19/D and seizure of another Nokia black colour mobile having IMEI No. 359204053384320 as Ex.PW19/E. This witness has also identified both the above said mobiles in the Court as Ex. P19/1 and Ex. P19/2.

21 PW20 SI Narender This witness is the first IO of the case and had gone at the spot after receiving DD No. 8A alongwith Ct. Jai Prakash. He has deposed about the initial investigation carried out at the spot. He has proved the seizure of broken lock as Ex. PW20/A, seizure of pullanda containing blood stained grey colour bed­sheet from the SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 7 of total pages 39 spot as Ex. PW20/B. This witness has identified the case property as Ex. P20/2 to Ex. P20/4.

22 PW21 Inspector Mahesh Kumar. This witness was posted as draftsman in Crime Branch at the relevant time period. This witness has deposed about preparation of the scaled site plan on the basis of rough notes and proved the scaled site plan as Ex. PW21/A. 23 PW22 Sh. Ikrar Ahmad This witness has deposed that he has purchased the mobile phone Ex. P19/1 from the accused since accused had stated to him that the said mobile phone was belonging to him and he wanted to sell the same.

24 PW23 Inspector Ranjeet Dhaka This witness is the IO of the case and has deposed about the investigation carried out by him in the present case. He has proved the rough site plan as Ex. PW23/A and crime team report as Ex. PW23/DA.

25 PW24 Sh. Amod Kumar Kamat This witness has deposed that accused Phool Prasad sold him Nokia Mobile Phone having IMEI number as 359204053384322 for a sum of Rs.

500/­ stating to him that the same belongs to him and he wanted to sell the same.

10. On 20.04.2018, Statement of accused Phool Prasad was recorded to the effect that he does not want to dispute the contents of FSL result dated 25.01.2017 prepared by Ms. Sunita Gupta, Sr. Scientific Officer(Biology), FSL, Rohini, Delhi and he has no objection in case the concerned prosecution witness namely Ms. Sunita Gupta is not summoned in order to formally prove the said FSL result. Accordingly the FSL result was exhibited as Ex. PZ.

11. After completion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C on 18.05.2018., wherein he has denied the case of prosecution and claimed that he is Innocent and has been falsely implicated in this case. However, he did not opt to choose any defence evidence. After statement of accused u/s 313 Cr.P.C, an application u/s 311 Cr.P.C was moved after which evidence of PW­25 recorded after which additional statement u/s 313 Cr.P.C was recorded on 25.04.2019.

SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 8 of total pages 39

12. I have heard ld Substitute Additional P.P for State as well as ld amicus curiae for accused namely Sh. Satya Prakash. Ld Substitute Additional P.P for State has argued that prosecution has successfully proved its against against the accused and hence accused may be convicted in the present case. On the other hand, ld amicus curiae for accused has submitted that there are many contradictions in the testimony of prosecution witnesses and prosecution has failed to prove its case beyond reasonable doubts and hence benefit of doubts may be given to the accused and he may be acquitted.

13. For the shake of convenience, evidence of material witnesses is reproduced herein below.

1) PW­2 Sh. Sachin was the owner of property bearing 217, situated at Khasra No. 133/11 at Shamshan Ghat Road, Indraj Colony, Bawana, Delhi, wherein the tenanted room of deceased Sant Ram was situated. PW­2 has deposed that around 2­3 month prior to the occurrence of the present case, he had let out one room built on the aforesaid plot to the Sant Ram(deceased) for a monthly rent of Rs. 1300/­ and after about 15 days Sant Ram took the possession of the aforesaid room, one more person started residing with him I.e accused Phool Prasad. He has further deposed that Sant Ram resided in his premises for a period of three months and the accused Phool Prasad resided there alongwith Sant Ram for about 15­20 days.

PW­2 has further deposed that on 27.07.2014 in the evening hours, he had visited the tenanted premises of Sant Ram for demanding the due rent. He has further submitted that Sant Ram and Phool Prasad both were present in the said room and Sant Ram requested for giving times of 1­2 days for payment of rent and accordingly he returned back to his house. PW­2 has further deposed that after two days I.e on 29.07.2014, it was informed to him by the neighbouring tenants of Sant Ram that foul smell has been coming out from the room of Sant Ram and blood had also seen outside SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 9 of total pages 39 the room of Sant Ram. He has further submitted that at about 8.00 - 8.30 am, he visited the tenanted room of Sant Ram and noticed foul smell coming from inside the said room. He has further deposed that he had also seen blood was also lying near the door of the said room and the room was found locked from outside. He has further submitted that he managed to open the window of the room with the help of wooden stick and from the said window he saw one dead body lying inside the said room, which was covered with blanket. Thereafter he made a call at 100 number from his mobile phone bearing no. 9213000550. PW­2 has further deposed that upon his call, PCR as well as local police reached at the spot and in the presence of police officials, he broke the lock of the room and thereafter, he alongwith police officials entered inside the said room and police official removed the blanket from the dead body. He has further submitted that he identified the said dead body to be of Sant Ram and police conducted investigation at the spot in his presence. He has further deposed that Police official also took the photographs of the spot including the photographs of body of Sant Ram. He has further deposed that he has also informed the police that Phool Prasad, who was residing with the deceased in the said tenanted room was missing. PW­2 has further deposed that during investigation, he handed over the photocopies of GPA, Agreement to Sell, Affidavit and Receipt to the IO of the case and IO seized the aforesaid documents vide seizure memo Ex.PW2/A. He has identified the documents annexed with the seizure memo are collectively exhibited as Ex.PW2/B. PW­2 has further deposed that on 16.08.2014, it was informed to him by the police officials that accused Phool Prasad had been arrested and police officials brought said accused to his property i.e. Khasra No. 133/11, Plot No. 217, Shamshan Ghat Road, Indraj Colony, Bawana, Delhi. He has further deposed that in his presence accused Phool Prasad pointed out the tenanted room, where he committed the murder of Sant Ram and police official prepared pointing out memo Ex. PW2/C. PW­2 has also identified the photographs of the tenanted room as Ex.PW2/D­1 to Ex.PW2/D­17, wherein deceased Sant Ram was residing alongwith accused Phool Prasad for last SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 10 of total pages 39 about 15­20 days before murder of Sant Ram. PW­2 also identified the dead body visible in photographs Ex.PW2/D­11 to Ex.PW2/D­17 to be that of deceased Sant Ram. During cross examination PW­2 has deposed that there are 12 rooms in the property where Sant Ram was residing as a tenant in one of the room. He has further deposed that on the date of occurrence of present case, there were tenants residing in all the 12 rooms of his property. He has further deposed that he had taken the identity proofs of all his tenants. He has further deposed that after initial investigation at the spot, he alongwith the tenants were called by the police officials at the PS and they reached the PS, somewhere between 12.00 - 1.00 pm and we remained there for about three hours or so. He has further deposed that when police officials reached at the spot, they asked him for showing the identity proof of the deceased and accordingly, he went to his house and brought the identity proof of the deceased at the spot and shown the said identity proof to the police. He has further deposed that police officials enquired from him as well as from co­tenants as to how and when the murder of Sant Ram was committed. He has further deposed that he as well as tenants had stated to the police officials that they are not aware as to how and when the murder of Sant Ram was committed. He has denied that accused Phool Prasad has been falsely implicated in this case or that he was not residing in the tenant room of deceased Sant Ram. He has further denied that he never seen accused Phool Prasad residing with deceased Sant Ram. PW­2 has further denied that on 27.07.2014, he had not visited the tenanted room of Sant Ram or that he had not seen accused Phool Prasad present over there. He has also denied that police had not brought accused Phool Prasad at the tenanted room on 29.07.2014 or that said accused had not pointed out the place of commission of offence. He has also denied that he identified accused Phool Prasad at the instance of IO. He has further denied that he is deposing falsely at the instance of IO.

2) PW­3 Dr. N. Masand, Medical officer, M.V Hospital, Pooth Khurd has deposed that on 18.8.2014 at around 10.35 am, one patient namely Phool Prasad S/o SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 11 of total pages 39 Sh. Pancha Sarvaria, aged about 32 years male was brought by HC Satish, No. 389/OD of PS Bawana for his medical examination. He has further deposed that HC Satish has also produced before him written request for providing blood sample of the said patient. Accordingly, he conducted the medical examination of the said patient vide MLC no. 3584/14. PW­3 has deposed that on local examination of accused Phool Prasad, no mark of fresh external injury seen clinically. He has further deposed that he obtained blood sample of the said patient on gauze piece and also in plain vial and sealed the same with the seal of MV Hospital and handed over the same alongwith specimen seal of MV Hospital to HC Satish. PW­3 has proved the aforesaid MLC No. 3584/14 as Ex.PW3/A.

3) PW­13 Dr. Yogita Bala, Medical Officer, M.V Hospital, Pooth Khurd has deposed that on 19.8.2014 at around 11.57 am, one patient namely Phool Prasad S/o Sh. Pancha Sarvaria, aged about 32 years male was brought by HC Satish, No. 389/OD of PS Bawana for his medical examination. Accordingly, she conducted the medical examination of the said patient vide MLC no. 3602/14. She has further deposed that on local examination, there was no sign of physical assault/fresh external injuries. However, there were old injuries in the form of swelling on left hand near thumb, scar near wrist and little finger and swelling on right hand near fifth metacarpal as told by the patient himself. She has proved the aforesaid MLC No. 3602/14 as Ex.PW13/A.

4) PW­14 Dr. Mukesh Kumar, Sr. Resident(Forensic Medicine), Dr. B.S.A hospital, Rohini, Delhi and deposed that on 01.08.2014, he conducted postmortem examination on the body of deceased Sant Ram S/o Sh. Lala Ram. He has further deposed that as per alleged history, dead body of Sant Ram was found inside the room on 29.07.2014 at about 7.40 hours and dead body of Sant Ram was preserved in BSA Hospital Mortuary. He has further deposed that he prepared his detailed report dated 01.08.2014 and proved the same as Ex. PW14/A. He has further deposed that in the said report, he opined that SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 12 of total pages 39 the death of Sant Ram was due to asphyxia consequent upon ligature strangulation. He has further deposed that he mentioned the external examination injuries in postmortem report Ex.PW14/A and the ligature strangulation was sufficient to cause death in ordinary course of nature. He has further deposed that viscera was preserved to rule out any intoxication at the time of death. He has further deposed that he took the viscera, clothes of deceased, nail clipping and blood in gauze piece of deceased and the same were sealed in separate pullandas with the seal of Department and handed over the same to IO. He has further submitted that today he had seen the Viscera Analysis Report dated 24.11.2014 prepared by Dr. Kanak Lata Verma, SSO (Chemistry), FSL, Delhi and as per the said report on chemical and TLC examination, metallic poisons, ethyl and methyl alcohol, phosphide, cyanide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected. He has further deposed that in his opinion, the death of Sant Ram was due to ligature strangulation. PW­14 has further deposed that during the course of investigation, subsequent opinion had been sought from him as to whether the ligature material found tied around the neck of the deceased, was used as weapon of offence in the commission of crime or otherwise. Accordingly, he gave subsequent opinion dated 15.11.2014 Ex.PW14/B to the effect that the strangulation of deceased was carried out by the ligature material found present tied around the neck of deceased at the time of postmortem.

5) PW­16 Sh. Satish has deposed that police officials had approached him and had enquired about SIM connection bearing no. 9540493734. He has deposed that he informed the police officials that the aforesaid SIM was purchased by him and had given the aforesaid SIM to accused Phool Prasad since the said accused was known to him for the last many years and was residing in their camp. He has further deposed that upon the request made by accused, he gave the aforesaid SIM to him about 3­4 years prior to August 2014 and since then, the aforesaid SIM was being used by the accused. PW­16 has further deposed that approximately 20­22 days prior to 15.08.2014, accused SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 13 of total pages 39 Phool Prasad came to him and thereafter, he alongwith the accused went to Chungi No. 3, where they consumed liquor. He has further deposed that at that time, he had noticed that there was swelling on the right hand of accused. He has further deposed that he enquired from the accused about the said swelling and accused had replied that since he had fallen down from the staircases while he was taking malba in his tasla at his workplace, he had received said injury. He has further deposed that on 15.08.2014, he had also accompanied the said police official at PS Bawana, where he found accused Phool Prasad and police effected the arrest of accused in his presence, vide arrest memo Ex.PW16/A. He has further submitted that police also conducted personal search of the accused vide memo Ex.PW16/B. During cross examination by ld Additional P.P for State, this witness has denied that when he enquired from accused about the swelling in his right hand, accused had stated to him that he had a quarrel with one person. He has further denied that on his persistent queries, accused had stated to him that he had been working at Labour Chowk in DSIDC Bawana or that he came into contact with one person namely Sant Ram. He has further denied that he had developed friendship with said Sant Ram or that he(Accused) started residing at the room of Sant Ram or that he had a quarrel with Sant Ram over the issue of money. PW­16 has further denied that accused had also stated before him that he had committed the murder of said Sant Ram by putting a plastic rope around his neck and by strangulating Sant Ram with said plastic rope. PW­16 has further denied that on 16.08.2014, initially, he had taken police officials to Room No. K­285, Nardaan Basti, Lal Kuan, where accused Phool Prasad was found present. He has further denied that he had informed the police about the accused or that in his presence, police official had interrogated the accused in the said room in his presence or that during interrogation, accused had admitted his guilt or that IO had effected the arrest of accused in the said room or that IO had recorded the disclosure statement made by the accused in his presence in the said room. He has further denied that he is intentionally not supporting the statement made by him before the police being won over by the accused. He has also denied that he is intentionally not supporting the SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 14 of total pages 39 factum of recovery of key by accused in his presence, being won over by the accused. He has denied that accused had voluntarily stated before him about the manner in which he had committed the offence or that he is intentionally not deposing the said facts before this Court.

During cross examination by ld amicus curiae for accused, PW­16 has deposed that he did not remember as to exactly when he had purchased SIM connection bearing no. 9540493734 and has deposed that so far as he remember, the said SIM was given by him to the accused on or about the same day when he purchased it. It is correct that my mobile phone was also being used by few other labours. This witness has voluntarily deposed that other labours were using the said SIM after taking the mobile phone from the accused. PW­16 has denied that he had not given any such SIM to the accused and has further denied that he is deposing falsely in this regard.

6) PW 19 SI Jitender Joshi has deposed that on 16.08.2014, he had joined the investigation of the present case with IO Inspector Ranjeet Dhaka and Ct. Devender. He has further deposed that during investigation, they went to K­223, Nardaan Basti, Lal Kuan, Delhi, where they had met Satish S/o Mahipal @ Nepal. He has further deposed that IO made enquiry from Satish regarding SIM No. 9540493734 and said Satish replied that he had given the said SIM to one Phool Prasad. He has further deposed that Satish had also informed the IO that he had met Phool Prasad on 29.07.2014 and Phool Prasad had confessed before him about the manner in which he had committed the murder of Sant Ram. He has further deposed that thereafter the said Satish had led them at H. No. K­285, Nardan Basti, Lal Kuan, New Delhi and pointed out towards accused Phool Prasad to whom he had given the aforesaid SIM. He has further deposed that Satish had also identified accused Phool Prasad, who had confessed the commission of offence before him. He has further deposed that IO had interrogated the accused and after interrogation, effected his arrest vide arrest memo Ex.PW16/A and conducted his personal search vide memo already Ex.PW16/B. He has further deposed that accused SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 15 of total pages 39 had also made disclosure statement Ex.PW19/A before the IO in his presence. PW­19 has further deposed that accused Phool Prasad had also taken out one key having red colour cloth katran, from a bag kept inside his room, which was stated to be the key of the room of Sant Ram. He has further deposed that IO had kept the said key in a match box and said match box was sealed with the seal of JJ with the help of cloth pullanda and same was seized vide seizure memo Ex.PW19/B. He has further deposed that thereafter, accused Phool Prasad had led him, IO Inspector Ranjeet Dhaka and Ct. Devender to the house of one Sachin situated at Khasra No. 133/11, Plot no. 217, Shamshan Ghat Road, Indraj Colony, Bawana, Delhi, where the accused had pointed out towards left side room of the aforesaid premises in which he had committed the murder of Sant Ram and IO prepared pointing out memo Ex.PW2/C. He has further deposed that IO had recorded the statement of witnesses including himself.

PW­19 has further deposed that thereafter, on 19.08.2014, he again joined the investigation of the present case. On that day, IO had interrogated said accused in his presence and accused had made supplementary disclosure statement Ex.PW19/C. He has further deposed that, pursuant to said disclosure statement, accused was taken to Okhla Barage and efforts for the search of mobile phone of accused were made, but in vain and thereafter IO had recorded his supplementary statement in this regard. He has further deposed that on 10.12.2014, he joined the investigation of the present case with IO Inspector Ranjeet Dhaka, Ct. Rajbir and Ct. Devender. He has further deposed that on that day, they left the PS on or about 5.30 pm vide DD No. 25A. He has further deposed that during investigation, they first reached at the house of Ikrar Ahmad S/o Bashir Ahmad, R/o 240, Ground Floor, Nardan Basti, Lal Kuan, New Delhi, where they met said Ikrar Ahmad. Ikrar Ahmad had produced Nokia black colour mobile phone bearing IMEI no. 358333054586740. IO had seized the said mobile instrument vide seizure memo Ex.PW19/D and IO had recorded the statement of Ikrar Ahmad in this regard. He has further deposed that thereafter, they had contacted the user of mobile no. 81309411400 i.e. Sh. Amod Kumar Kamat and reached at A­369, Chungi No. 2, Lal Kuan, SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 16 of total pages 39 Delhi, where they met said Amod Kumar Kamat. Amod Kumar Kamat had produced Nokia black colour mobile instrument bearing IMEI No. 359204053384320. IO had seized the said mobile instrument vide memo Ex.PW19/E and IO had recorded the statement of Amod Kumar Kamat in this regard and also recorded the statements of other witnesses including his statement. This witness has also identified the case property i.e. the key as Ex.P­17/1, being the same, which accused Phool Prasad had produced and was seized in the present case. He has also identified the two mobile phones seized in the present case as Ex.P19/1 and Ex.P19/2.

During cross examination this witness has denied that Satish had not disclosed anything to the IO in his presence or that accused was not arrested from the place or in the manner as deposed by him during examination in chief. This witness has further denied that no such key was recovered at the instance of accused or that accused had not made any disclosure statements in his presence before the IO. He has further denied that no such mobile instruments were produced in his presence by Ikrar Ahmad and Amod Kumar Kamat. He has further denied that he had seized the above said mobiles phones at the instance of IO. He has further denied that accused has been falsely arrested and implicated in this case in order to work out a blind murder case. He has also denied that Satish had not made any statement before the IO in his presence or that his statement was manipulated by IO to work out a blind murder case. He has also denied that he is deposing falsely at the instance of IO.

7) PW­20, SI Narender(Ist IO of the case) has deposed that in the intervening night of 28/29.07.2014, he was posted at PS Bawana and was on night emergency duty from 8 pm to 8 am with Ct. Jai Prakash. He has further deposed that in the morning hours of 29.07.2014 at about 7.35 am, DD No. 8A was marked to him and accordingly, he alongwith Ct. Jai Prakash went to the place of information i.e. a house at Indraj Colony, in front of Piao, Shamshan Ghatwala Rasta, Bawana, Delhi. He has further deposed that on reaching there, he was informed that the said house belong to one Sachin. He has SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 17 of total pages 39 further deposed that he met few tenants residing in nearby rooms, who had informed him that one dead body was lying inside one of the room i.e. outer side room of the said premises. He has further deposed that he inspected the said room from outside and found blood stains near the doorstep of the said room. He has further deposed that he also peeped into the said room through the window and found that one dead body was lying inside the said room. He has further deposed that he called the crime team at the spot. Crime team official took the photographs of the said room from outside. He has further deposed that thereafter, the lock of the door of the said room was broken and they entered inside the room and found the dead body of one male on the floor of the said room. He has further deposed that there was a towel over the face of the said body. Crime team photographer took photographs of the body and of the said room from different angles. He has further deposed that he formally inspected the said body and found one white colour plastic rope tied over the neck of said body. There was a wooden piece in the said plastic rope. The head of said body was facing east direction and his legs were facing west direction. He has further deposed that deceased was found wearing white colour baniyan and green colour underwear and was also having black colour tabeez on right hand. He has further deposed that there was an injury mark on the thumb and index finger of the left hand of deceased. He has further deposed that after the inspection of the place of occurrence by the Crime team officials, the said body was removed to BSA Hospital Mortuary through Ct. Jai Prakash with direction to preserve the said body in the Mortuary. He has further deposed that from the spot, he seized the broken lock after sealing the same with the seal of NS, vide seizure memo Ex.PW20/A in the presence of Ct. Pawan, who came to the spot on his call. He has further deposed that he also lifted the blood lying at the spot with the help of cotton gauze and kept the same in a plastic container and sealed the same with the seal of NS. He has further deposed that he also lifted blood stained earth control and kept the same in a plastic container and sealed the same with the seal of NS. He has further deposed that he also lifted earth control from the spot and kept the same in a plastic container and sealed the SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 18 of total pages 39 same with the seal of NS. PW­20 has further deposed that he also lifted blood stained grey colour bed­sheet from the spot and kept the same in a cloth pullanda and sealed the same with the seal of NS, which was seized by him vide seizure memo Ex.PW20/B. PW­20 has further deposed that on the basis of contents of DD no. 8A and facts and circumstances of the present case, he prepared rukka Ex.PW20/C and handed over the same to Ct. Pawan who came to the spot on his call, who took the rukka to PS, got the FIR registered and came back to the spot and handed over copy of FIR and original rukka to Inspector Ranjeet Dhaka, who took over the investigation of the present case and he produced the case property before the IO. He has further deposed that during investigation, PW Sachin had produced the photocopies of the property documents, which were seized by the IO vide seizure memo Ex.PW2/A. He has further deposed that IO had made enquiries from landlord Sh. Sachin in his presence, who had stated to IO that deceased Sant Ram had taken the said room on rent from him in the month of May 2014. Said Sachin had also informed the IO that since approximately 1½ month prior to the occurrence, one Phool Prasad had been residing with Sant Ram and IO had also recorded his statement in this regard.

PW­20 has further deposed that during investigation on 02.09.2014, he accompanied IO Inspector Ranjeet Dhaka and Draftsman Inspector Mahesh to the place of occurrence. He has further deposed that the said Draftsman took measurements and prepared rough notes of the place of occurrence at his instance. PW­20 has identified the case property produced by the MHC(M) in the Court I.e lock as Ex.P20/1 to be the same lock, which was found over the door of the said room and was broken by them. PW­20 as also identified the parcel No. 1, containing one plastic container containing gauze cloth piece, having brownish stains as Ex.P20/2, being lifted from the spot. He has also identified parcel no. 2, containing one plastic container containing stone pieces having brownish stains as Ex.P20/3, being lifted from the spot. He has also identified parcel No. 3, containing one plastic container containing stone pieces described as earth control as Ex.P20/4, being lifted from the spot. He has also identified parcel No. 4, SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 19 of total pages 39 containing blood stained chaddar as Ex.P20/5, being lifted from the spot.

During cross examination, this witness has deposed that he made enquiries from the public persons/tenants who met him at the spot but they were not able to disclose the name and parentage of the deceased. He has further deposed that he made enquiries from the tenants, about the name of their landlord, but they were not able to disclose the same at that time and he had mentioned about the said fact in the rukka. He has further deposed that he come to know the name of the landlord namely Sachin of the said premises after preparing rukka. He has further deposed that landlord Sachin met him at the spot after he had sent rukka. He has further deposed that he had not enquired from Sachin as to how he came to know about the occurrence when he met him at the spot. PW­20 has denied that no such proceedings as deposed by him in his examination in chief, was conducted by him at the spot or that no such lock was broken. He has denied that the lock Ex.PW20/1, is not in broken condition.

8) PW­22 Ikrar Ahmad has deposed that in the month of August 2014, accused Phool Prasad met him and his wife in the locality and had shown one mobile phone make Nokia. He has further deposed that accused had stated to them that he wanted to sell the his mobile phone and upon this, they purchased the said mobile instrument for a sum of Rs. 500/­ and after purchase the said mobile phone, he inserted his SIM in the said mobile and they had been using the said mobile instrument. He has further deposed that during the course of investigation of this case, few police officials had visited their house and he had produced the said mobile instrument to them. He has further deposed that Police officials had seized the said mobile instrument alongwith its battery, vide seizure memo Ex.PW19/D. He has identified the said mobile instrument as Ex.P19/1. During cross examination this witness had deposed that they had not executed any receipt in respect of purchase of aforesaid mobile instrument. He has denied that they had not purchased any such mobile instrument from the accused or that he has been introduced as a false witness by IO in order to strengthen the case o the SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 20 of total pages 39 prosecution. He has also denied that he has wrongly identified accused Phool Prasad at the instance of IO.

9) PW­23 Inspector Ranjeet Dhaka, 2nd IO of the case has deposed that in the intervening night of 28/29.07.2014, he was posted as SHO at PS Bawana. He has further deposed that on that day, SI Narender Kumar and Ct. Jai Prakash were on night emergency duty from 8 pm to 8 am. In the morning hours of 29.07.2014 at about 7.35 am, DD No. 8A was marked to SI Narender and accordingly, he alongwith Ct. Jai Prakash went to the place of information i.e. a house situated at Indraj Colony, in front of Piao, Shamshan Ghatwala Rasta, Bawana, Delhi. He has further deposed that he alongwith staff had also reached at the said place. He has further deposed that upon reaching there, they had met few tenants residing in nearby rooms, who had informed them that one dead body has been lying inside one of the room i.e. outer side room of the said premises. He has further deposed that they had inspected the said room from outside and found blood stains near the doorstep of the said room. He has further deposed that they had also peeped into the said room through the window and found that one dead body was lying inside the said room. He has further deposed that upon his instruction, SI Narender had called the crime team at the spot and crime team official took the photographs of the said room from outside. He has further deposed that thereafter, the lock of the door of the said room was broken and then, they entered inside the room and found the dead body of one male on the floor of the said room. He has further deposed that there was a towel over the face of the said body. He has further deposed that crime team photographer took photographs of the body and of the said room from different angles. He has further deposed that he formally inspected the said body and found one white colour plastic rope tied over the neck of said body. There was a wooden piece in the said plastic rope. The head of said body was facing east direction and his legs were facing west direction. The deceased was found wearing white colour baniyan and green colour underwear and was also having black colour tabeez on right hand. There was an SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 21 of total pages 39 injury mark on the thumb and index finger of the left hand of deceased. He has further deposed that after the inspection of the place of occurrence by the Crime team officials, the said body was removed to BSA Hospital Mortuary through Ct. Jai Prakash with direction to preserve the said body in the Mortuary. He has further deposed that from the spot, SI Narender had seized the broken lock after sealing the same with the seal of NS, vide seizure memo Ex.PW20/A. He has further deposed that SI Narender had also lifted the blood lying at the spot with the held of cotton gauze and kept the same in a plastic container and sealed the same with the seal of NS. SI Narender had also lifted blood stained earth control and kept the same in a plastic container and sealed the same with the seal of NS. SI Narender had also lifted earth control from the spot and kept the same in a plastic container and sealed the same with the seal of NS. SI Narender had also lifted blood stained grey colour bedsheet from the spot and kept the same in a cloth pullanda and sealed the same with the seal of NS. SI Narender had seized the aforesaid pullandas vide seizure memo Ex.PW20/B. He has further deposed that on the basis of contents of DD no. 8A and facts and circumstances of the present case, SI Narender prepared rukka Ex.PW20/C and handed over the same to Ct. Pawan. Accordingly, Ct. Pawan took the rukka to PS, got the FIR registered and came back to the spot and handed over copy of FIR and original rukka to him as he took over the investigation of the present case. SI Narender had produced the case property as well as memos prepared by him before him. He has further deposed that he recorded the statement of Crime Team Incharge as well as Crime Team Photographer. He has further deposed that he also prepared the rough site plan Ex.PW23/A of the place of occurrence at the instance of SI Narender. He has further deposed that PW Sachin i.e. the owner of the said property had also reached at the spot and said Sachin had disclosed the name of the deceased to be Sant Ram i.e. one of his tenant and also disclosed to him about the permanent address of Sant Ram. He has further deposed that Sachin also produced the photocopies of the property documents, which were seized vide seizure memo Ex.PW2/A. He has further deposed that he also made enquiries from landlord Sachin, SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 22 of total pages 39 who had stated to him that deceased Sant Ram had taken the said room on rent from him in the month of May 2014. Said Sachin had also informed to him that since approximately 1½ month prior to the occurrence, one Phool Prasad had been residing with said Sant Ram. He has further deposed that he also recorded the statement of Sachin in this regard. He has further deposed that thereafter, he returned back to PS and deposited the case property in Malkhana. He has further deposed that he also recorded the statement of witnesses and instructed SI Narender to visit the native place of deceased Sant Ram. He has further deposed that on 01.08.2014, he went to the Mortuary of BSA Hospital, where he filled form no. 25.35(1)(B) Ex.PW23/B. He also got conducted postmortem on the body of deceased Sant Ram and recorded statement of Smt. Anita PW5/A and of Lala Ram Ex.PW6/A regarding the identification of dead body of deceased Sant Ram. He has further deposed that after postmortem, the body of Sant Ram was handed over to the aforesaid relatives vide receipt Ex.PW5/B. He has further deposed that he also recorded the statement U/s 161 Cr.P.C. of Anita, Lala Ram as well as of Umesh. He has further deposed that Sh. Umesh who was the brother­in­law of deceased Sant Ram had stated before me that Sant Ram was using one mobile bearing SIM No. 8010180895. He has further deposed that during investigation, he applied for the CDR of the said phone number. He has further deposed that upon the receipt of CDR of the aforesaid mobile number, he analyzed the same and found a number of calls between the aforesaid phone number and phone number 9540493734. He has further deposed that he tried to contact on phone no. 9540493734, but the said number was found switched off. He has further deposed that thereafter, he procured the CDR and CAF of mobile no. 9540493734. He has further deposed that as per the CAF, the said mobile phone was found to be in the name of Satish S/o Mahipal, R/o Naardan Basti, Lal Quan, Delhi. He has further deposed that during investigation on 16.08.2014, he alongwith SI Jitender Joshi and Ct. Devender went to aforesaid address i.e. K­223, Nardaan Basti, Lal Kuan, Delhi, where they met Satish S/o Mahipal @ Nepal. He has further deposed that he made enquiry from Satish regarding SIM No. 9540493734 and said Satish had replied that he had given SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 23 of total pages 39 the said SIM to one Phool Prasad. Satish had also informed to him that he had met Phool Prasad on 29.07.2014 and Phool Prasad had confessed before him about the manner in which he had committed the murder of Sant Ram. He has further deposed that thereafter, said Satish had led them at H. No. K­285, Nardaan Basti, Lal Kuan, New Delhi and pointed out towards accused Phool Prasad, to whom he had given the aforesaid SIM. Satish had also identified accused Phool Prasad, who had confessed the commission of offence before him. He has further deposed that he interrogated the accused and after interrogation, effected his arrest vide arrest memo Ex.PW16/A and conducted his personal search vide memo Ex.PW16/B. He has further deposed that accused had made disclosure statement Ex.PW19/A. He has further deposed that accused Phool Prasad had also taken out one key having red colour cloth katran, from a bag kept inside his room, which was stated to be the key of the room of Sant Ram. He has further deposed that he kept the said key in a match box and said match box was sealed with the seal of JJ with the help of cloth pullanda and was seized vide seizure memo Ex.PW19/B. He has further deposed that thereafter, accused Phool Prasad led him, SI Jitender Joshi and Ct. Devender to the house of one Sachin situated at Khasra No. 133/11, Plot no. 217, Shamshan Ghat Road, Indraj Colony, Bawana, Delhi, where the accused had pointed out towards left side room of the aforesaid premises in which he had committed the murder of Sant Ram and accordingly he prepared pointing out memo Ex.PW2/C, in this regard in the presence of landlord of said house namely Sachin. He has further deposed that he recorded the statement of witnesses and thereafter, they returned back to PS and he deposited the case property in Malkhana. He has further deposed that during investigation on 17.08.2014, accused Phool Prasad was produced before concerned court and he obtained 3 days P/C remand of the accused. He has further deposed that during P/C remand on 18.08.2014, accused Phool Prasad was produced before the concerned doctor at M.V. Hospital, Pooth Khurd and the doctor had obtained the blood sample of said accused and after sealing the same alongwith sample seal, handed over the same to him, which was seized by him vide seizure memo SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 24 of total pages 39 Ex.PW18/A. He has further deposed that thereafter, on 19.08.2014, he interrogated accused Phool Prasad in the presence of SI Jitender Joshi and accused had made supplementary disclosure statement Ex.PW19/C before him. He has further deposed that on that day, pursuant to said disclosure statement, upon his instructions, SI Jitender Joshi took the accused to Okhla Barage and made efforts for the search of mobile phone of accused, but in vain. He has further deposed that on the same day i.e. 19.08.2014, Ct. Sunil had produced before him the exhibits which he had collected from BSA Hospital, which was seized vide seizure memo Ex.PW8/A. He has further deposed that after P/C remand, accused was remanded to judicial custody. He has further deposed that thereafter, on 22.08.2014, on his instruction, Ct. Sunil had collected the exhibits i.e. one sealed pullanda containing the viscera of deceased, vide R.C. no. 208/21/14 and 11 sealed pullandas vide R.C. No. 209/21/14 from MHC(M) HC Vinod and deposited the same at FSL, Rohini. He has further deposed that he recorded the statement of Ct. Sunil and MHC(M) HC Vinod in this regard. He has further deposed that during investigation on 02.09.2014, he and SI Narender & Draftsman Inspector Mahesh went to the place of occurrence and the said Draftsman took measurements and prepared rough notes of the place of occurrence at our instance. He has further deposed that thereafter on 03.10.2014, upon his instructions, Ct. Kalu Ram had collected PCR forms. He also collected scaled site plan from Draftsman. He has further deposed that thereafter, on 03.11.2014, upon his instruction, Ct. Shiv Pal had collected two sealed pullandas from MHC(M) vide R.C. no. 244/21/14 and deposited the same at FSL, Rohini and he recorded the statement of Ct. Shiv Pal and MHC(M) HC Vinod in this regard. He has further deposed that he also collected postmortem report, Crime Team photographs and prepared chargesheet. He has further deposed that during further investigation, I had obtained the subsequent opinion from Autopsy Surgeon. He has further deposed that during investigation, he obtained the certified copy of CDRs of mobile numbers of accused Phool Prasad as well as of deceased Sant Ram. He has further deposed that he also obtained the IMEI search of the said mobile numbers and analyzed the same. Upon SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 25 of total pages 39 analysis, it was found that the IMEI numbers of both the mobile numbers were changed. He has further deposed that it was also found that both the IMEI numbers were found running on different mobile numbers. He has further deposed that thereafter, on 10.12.2014, SI Jitender Joshi, Ct. Rajbir and Ct. Devender had joined the investigation of the present case with him. He has further deposed that on that day, they left the PS at about 5.30 pm vide DD No. 25A. He has further deposed that during investigation, he first reached at the house of Sh. Ikrar Ahmad S/o Bashir Ahmad, R/o H. No. 240, Ground Floor, Nardan Basti, Lal Kuan, New Delhi, where we had met said Ikrar Ahmad. Sh. Ikrar Ahmad had produced Nokia black colour mobile phone bearing IMEI no. 358333054586740. He has further deposed that he seized the said mobile instrument vide seizure memo Ex.PW19/D. He has further deposed that he recorded the statement of Sh. Ikrar Ahmad in this regard. Thereafter, he contacted the user of mobile no. 81309411400 i.e. Sh. Amod Kumar Kamat and reached at A­369, Chungi No. 2, Lal Kuan, Delhi, where they met said Amod Kumar Kamat. Amod Kumar Kamat had produced Nokia black colour mobile instrument bearing IMEI No. 359204053384320. He has further deposed that he seized the said mobile instrument vide memo Ex.PW19/E and he recorded the statement of Amod Kumar Kamat in this regard and also recorded the statements of other witnesses and deposited the case property in Malkhana. He has further deposed that during investigation, he also collected the FSL result prepared by Sh. S.S. Badhwal, Ex.PY and FSL result prepared by Dr. Kanak Lata Verma, Ex.PX. He has further deposed that FSL result dated 20.01.2017 prepared by Ms. Sunita Gupta, Sr. Scientific Officer (Biology), as Ex.PZ. Upon completion of investigation, he prepared supplementary chargesheet. He has also identified the case property I.e match box containing one key having red colour cloth katran as Ex.P­17/1, which accused Phool Prasad had produced and was seized in the present case. He has also identified two mobile instruments of Nokia black colour, seized during investigation as Ex.P19/1 and Ex.P19/2 respectively. He has also identified the case property produced by the MHC(M) in the Court I.e lock as Ex.P20/1 to be the same lock, which was found over the door of SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 26 of total pages 39 the said room and was broken by them. PW­20 as also identified the parcel No. 1, containing one plastic container containing gauze cloth piece, having brownish stains as Ex.P20/2, being lifted from the spot. He has also identified parcel no. 2, containing one plastic container containing stone pieces having brownish stains as Ex.P20/3, being lifted from the spot. He has also identified parcel No. 3, containing one plastic container containing stone pieces described as earth control as Ex.P20/4, being lifted from the spot. He has also identified parcel No. 4, containing blood stained chaddar as Ex.P20/5, being lifted from the spot.

During cross examination, this witness has deposed that on the day of incident i.e. 29.07.2014, on receipt of information regarding the occurrence, he reached at the spot at about 7.50 am and he made enquiries from the other tenants after reaching at the spot, but he has not recorded their statements. He has further deposed that the name and parentage of deceased was not disclosed to him by the other tenants at the spot. He has further deposed that he met landlord Sachin at the spot when he reached there. Even Sachin had not disclosed to him the name and parentage of deceased at that time. He has further deposed that he made enquiries initially from said Sachin for about 15 minutes and at that time, he has not recorded the statement of Sachin. He has further deposed that the name and parentage of deceased was disclosed to him by Sachin during the noon hours on the day of occurrence. He has denied that deceased was not tenant of Sachin. He has further deposed that he prepared the seizure memo of blanket, which was found over the body of deceased. He has further deposed that he lodged departure entry in Roznamcha on 16.08.2014. He has denied that since no such departure entry was lodged, that is why, he had not placed on record any such DD entry. He has further deposed that he made initial enquiries from landlord Sachin before SI Narender had prepared rukka. He has admitted that in the Crime Team Report Ex.PW23/DA, two blankets have been mentioned. He has denied that he has not carried out fair investigation. He has further denied that no such key was recovered at the instance of accused or that accused had not made any disclosure statements before me.

SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 27 of total pages 39 He has also denied that accused Phool Prasad had never used mobile no. 9540493734. He has also denied that no such mobile instruments were produced by Ikrar Ahmad and Amod Kumar Kamat or that he prepared false seizure memo. He has also denied that accused has been falsely arrested and implicated in this case in order to work out a blind murder case.

CIRCUMSTANTIAL EVIDENCE

14. In the present case, there is no eye­witness and whole of the case of prosecution is based on circumstantial evidence. Generally, when there are eye­ witnesses to the incident, the Court has to rely upon the veracity of the witnesses to establish the incident, but while dealing with the case based on circumstantial evidence, not only the veracity of the witness but also other points become relevant. Before we proceed further it is necessary to state the requirements in a case based on circumstantial evidence.

In Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984: 1984 AIR 1622, 1985 SCR (1) 88, the honorable supreme Court upheld as under:­ "Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 28 of total pages 39 can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

15. As discussed above that in a case based on circumstantial evidence, the above­stated requirements are to be fulfilled and the facts on which the case is based, has to be cogently and firmly established. After reading the testimonies of the witnesses as well as the other evidence placed on record, this Court has considered that the following facts have been fully established:­

16. FACTS ESTABLISHED BY THE PROSECUTION In the present case, following facts are established by the prosecution.

1)DEATH OF SANT RAM TOOK PLACE In this regard PW­2/ Sh. Sachin, owner of the rented accommodation of Sant Ram deposed that on 29.07.2014, it was informed to him by the neighbouring tenants of Sant Ram that foul smell has been coming out from the room of Sant Ram and SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 29 of total pages 39 blood had also seen outside the room of Sant Ram. He has further submitted that at about 8.00 - 8.30 am, he visited the tenanted room of Sant Ram and noticed foul smell was coming from inside the said room. He has further deposed that he had also seen blood was also lying near the door of the said room and the room was found locked from outside. He has further submitted that he managed to open the window of the room with the help of wooden stick and from the said window he saw one dead body lying inside the said room, which was covered with blanket. Thereafter he made a call at 100 number from his mobile phone bearing no. 9213000550. PW­2 has further deposed that upon his call, PCR as well as local police reached at the spot and in the presence of police officials, he broke the lock of the room and thereafter, he alongwith police officials entered inside the said room and police official removed the blanket from the dead body. He has further submitted that he identified the said dead body to be of Sant Ram and police conducted investigation at the spot in his presence. PW­2 also identified the dead body visible in photographs Ex.PW2/D­11 to Ex.PW2/D­17 to be that of deceased Sant Ram.

Dead boy of deceased Sant Ram was also identified by his wife Smt. Anita(PW­5) and his father Sh. Lala Ram(PW­6), who have deposed that on 01.08.2014, they have identified dead body of Sant Ram in the mortuary of BSA hospital and in this regard their respective statements Ex. PW5/A and Ex. PW6/A were recorded by the IO. They have further deposed that after postmortem dead body of the deceased was handed over to them vide receipt Ex. PW5/B. PW­7 Sh. Umesh has also deposed that on 01.08.2014 he had come to BSA hospital, where postmortem of his brother­in­law(Jija) Sant Ram was being conducted.

Thus from the evidence of above mentioned Pws, it has been established that on 29.07.2014, it was Sant Ram, who was found dead at his rented accommodation.

2)ACCUSED WAS RESIDING ALONGWITH THE DECEASED In this regard PW­2 Sh. Sachin, owner of the premises bearing Khasra No. 133/11 at Shamshan Ghat Road, Indraj colony, Bawana, Delhi, whereupon PW­2 had constructed 12 rooms and had given one room out of the said 12 rooms to Sh. Sant SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 30 of total pages 39 Ram(deceased) prior to the incident in question on a monthly rent of Rs. 1300/­. PW­2 has deposed that after 15 days of taking possession of the aforesaid room, one more person started residing with him. He has further deposed that Sant Ram resided in his premises for a period of three months and the accused Phool Prasad resided there alongwith Sant Ram for about 15­20 days.

PW­2 has further deposed that on 27.07.2014 in the evening hours, he had visited the tenanted premises of Sant Ram for demanding the due rent. He has further submitted that Sant Ram and Phool Prasad both were present in the said room and Sant Ram requested for giving times of 1­2 days for payment of rent and accordingly he returned back to his house. PW­2 has further deposed that after two days I.e on 29.07.2014, it was informed to him by the neighbouring tenants of Sant Ram that foul smell has been coming out from the room of Sant Ram and blood had also seen outside the room of Sant Ram. Thus from the above mentioned testimony of PW­2 it has been categorically established that accused Phool Prasad was residing alongwith deceased Sant Ram. The testimony of PW­2 Sh. Sachin is reliable since during cross examination the said witness remained firmed on his version stated by him in his examination­in­chief.

Regarding the factum of accused Phool Prasad being residing alongwith deceased till 29.07.2014, PW­16 in his statement 161 Cr.P.C Mark PW16/A has stated that on 29.07.2014, accused Phool Prasad met him and at that time there was swelling on the right hand of the accused and on his asking accused has stated to him that he had a quarrel with one person. He has further deposed that on his persistent queries, accused had stated to him that accused has stated to him that he had done one mistake and has further stated that now he had been working at Labour Chowk in DSIDC Bawana and came into contact with one person namely Sant Ram. He has also stated that he developed friendship with said Sant Ram and started residing at the room of Sant Ram. He has also stated that accused told him that he had a quarrel over the issue of money with Sant Ram. Although PW­16 when appeared in the Court for his testimony turned hostile and has denied all the above mentioned version and he has been also cross SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 31 of total pages 39 examined by Ld Additional P.P for State in this regard. However possibility of his being won over by the accused can not be ruled out.

3) CAUSE OF DEATH.

In this case as per Ex. PW14/A, the cause of death was due to asphyxia consequent upon ligature strangulation. In this regard PW­14 Dr. Mukesh Kumar, Sr. Resident(Forensic Medicine), Dr. B.S.A hospital, Rohini, Delhi has deposed that on 01.08.2014, he conducted postmortem examination on the body of deceased Sant Ram S/o Sh. Lala Ram. He has further deposed that as per alleged history, dead body of Sant Ram was found inside the room on 29.07.2014 at about 7.40 hours and dead body of Sant Ram was preserved in BSA Hospital Mortuary. He has further deposed that he prepared his detailed report dated 01.08.2014 and proved the same as Ex. PW14/A. He has further deposed that in the said report, he opined that the death of Sant Ram was due to asphyxia consequent upon ligature strangulation. He has further deposed that he mentioned the external examination injuries in postmortem report Ex.PW14/A and the ligature strangulation was sufficient to cause death in ordinary course of nature. He has further deposed that viscera was preserved to rule out any intoxication at the time of death. He has further deposed that he took the viscera, clothes of deceased, nail clipping and blood in gauze piece of deceased and the same were sealed in separate pullandas with the seal of Department and handed over the same to IO. He has further submitted that today he had seen the Viscera Analysis Report dated 24.11.2014 prepared by Dr. Kanak Lata Verma, SSO (Chemistry), FSL, Delhi and as per the said report on chemical and TLC examination, metallic poisons, ethyl and methyl alcohol, phosphide, cyanide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected. He has further deposed that in his opinion, the death of Sant Ram was due to ligature strangulation. PW­14 has further deposed that during the course of investigation, subsequent opinion had been sought from him as to whether the ligature material found tied around the neck of the deceased, was used as weapon of offence in the commission of crime or otherwise. Accordingly, he gave subsequent opinion dated 15.11.2014 SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 32 of total pages 39 Ex.PW14/B to the effect that the strangulation of deceased was carried out by the ligature material found present tied around the neck of deceased at the time of postmortem. The testimony of PW­14 is fully reliable being the expert opinion. Further PW­14 is not an interested witness and hence it can not be said that the report given by him is influential one. Even otherwise during cross examination PW­14 has fully denied that he had not conducted proper postmortem and has also denied that he had given the subsequent opinion at the instance of the IO of this case.

4) MOBILE NO. 9540493734 WAS ALSO BEING USED BY ACCUSED In this regard PW­23 Inspector Ranjeet Dhaka, IO of the case has also deposed that during investigation, he applied for the CDR of the said phone number. He has further deposed that upon the receipt of CDR of the aforesaid mobile number, he analyzed the same and found a number of calls between the aforesaid phone number and phone number 9540493734. He has further deposed that he tried to contact on phone no. 9540493734, but the said number was found switched off. He has further deposed that thereafter, he procured the CDR and CAF of mobile no. 9540493734. He has further deposed that as per the CAF, the said mobile phone was found to be in the name of Satish S/o Mahipal, R/o Naardan Basti, Lal Quan, Delhi. He has further deposed that during investigation on 16.08.2014, he alongwith SI Jitender Joshi and Ct. Devender went to aforesaid address i.e. K­223, Nardaan Basti, Lal Kuan, Delhi, where they met Satish S/o Mahipal @ Nepal. He has further deposed that he made enquiry from Satish regarding SIM No. 9540493734 and said Satish had replied that he had given the said SIM to one Phool Prasad. Thus from the evidence of PW­16 Satish as well as the CDR record, it has been fully established that the said mobile SIM bearing No. 9540493734 was being used by the accused.

From the evidence on the record, it has been fully established that SIM number 9540493734 was also being used by accused Phool Prasad. In this regard PW­ 16 Sh. Satish has deposed that PW­16 Sh. Satish has deposed that police officials had approached him and had enquired about SIM connection bearing no. 9540493734. He SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 33 of total pages 39 has deposed that he informed the police officials that the aforesaid SIM was purchased by him and was given the aforesaid SIM to accused Phool Prasad since the said accused was known to him for the last many years and was residing in their camp. He has further deposed that upon the request made by accused, he gave the aforesaid SIM to him about 3­4 years prior to August 2014 and since then, the aforesaid SIM was being used by the accused. During cross examination by ld amicus curiae for accused, PW­16 has deposed that he did not remember as to exactly when he had purchased SIM connection bearing no. 9540493734 and has deposed that so far as he remember, the said SIM was given by him to the accused on or about the same day when he purchased it. During cross examination also PW­16 remained firm regarding his version and had categorically denied that he had not given any such SIM to the accused, but he has also stated that his SIM was also being used by other labours.

5)     KEY OF THE ROOM OF THE DECEASED                              WAS             RECOVERED       FROM
ACCUSED

PW­19 SI Jitender Joshi has deposed that on 16.08.2014, he had joined the investigation of the present case with IO Inspector Ranjeet Dhaka and Ct. Devender. He has deposed that on that day, during investigation, they went to K­223, Nardaan Basti, Lal Kuan, Delhi, where they had met Satish S/o Mahipal @ Nepal. IO had made enquiry from Satish. He has further deposed that thereafter, said Satish had led them at H. No. K­285, Nardan Basti, Lal Kuan, New Delhi and pointed out towards accused Phool Prasad. Thereafter, IO had interrogated the accused and after interrogation during investigation accused Phool Prasad had also taken out one key having red colour cloth katran, from a bag kept inside his room, which was stated to be the key of the room of Sant Ram. IO had kept the said key in a match box and said match box was sealed with the seal of JJ with the help of cloth pullanda and was seized vide seizure memo Ex.PW19/B. PW­19 has also identified the said key as Ex. P­17/1, being the same which accused Phool Prasad had produced and was seized in his presence, at this time of his evidence in the Court when the said key was produced by the MHC(M) in the Court.

SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 34 of total pages 39

17) FACTS WHICH COULD NOT BE ESTABLISHED BY THE PROSECUTION.

1) Whether the key recovered from the accused is the only key of the broken lock Ex. P20/1 of the room of the deceased. Although accused has given statement on 13.07.2017 that he is not disputing the contents of FSL results dated 20.11.2014 and 24.11.2014 and in view of his statement the afore­said FSL results were exhibited as Ex. PY and Ex. PX. In the present case the lock Ex. P20/1 and key Ex. P17­1, which were seized in the present case were sent to FSL for examination and as per FSL result dated 20.11.2014, para no. 3 of the said result is following opinion was given by the concerned official, which is reproduced hereinbelow:­ "3. RESULTS OF EXAMINATION/OPINION

a) The metallic Lock marked Exhibit­1 and Metallic key marked Exhibit­2 were physically examined and on thorough examination it is opined that operative Mechanism of Exhibit­1 was found in working condition by using Exhibit­2.

However it was not possible to opine that Exhibit­2 is the original key of the Exhibit­1, because Sample Original standard Key of Metallic Lock marked Exhibit­1 was not present for examination".

Thus in view of the above mentioned expert opinion, it can not be said that whether the key recovered from the house of the accused was the original key of the lock which was used to lock the room of the deceased outside on the fateful day or the same was duplicate key. Further it can not be said that the key Ex. P­17 was the only key, which was being used for locking or opening the lock Ex. P20/1.

2) EXTRA JUDICIAL CONFESSION OF THE ACCUSED.

As per the case of the prosecution in the present case accused has made extra judicial confession before PW­16 Sh. Satish. As per the story of the prosecution PW­16 in his statement u/s 161 Cr.P.C has stated that on 29.07.2014 accused Phool Prasad met him and there was swelling in his right hand. He has also stated that on his asking accused told him that he had quarreled with someone. He has further stated that on his persistent queries, accused had stated to him that he had committed one mistake.

SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 35 of total pages 39 He has also stated that now a days he had been working at Labour Chowk in DSIDC Bawana and that he came into contact with one person namely Sant Ram. PW­16 has further stated accused also told him that he had developed friendship with said Sant Ram and that he had started residing at the room of Sant Ram. Accused has also stated that he had a quarrel with Sant Ram over the issue of money due to which he had committed the murder of said Sant Ram by putting a plastic rope around his neck and by strangulating Sant Ram with said plastic rope. However when PW­16 appeared in the witness box, he has categorically denied about having made any such statement to the police. He has specially denied the suggestion given to him by Ld Additional P.P for State during his cross examination that during interrogation accused admitted his guilt before the police. Thus in view of the above discussion, it can be said that prosecution could not prove that accused had made extra judicial confession regarding commission of offence in this case.

3) CDR OF MOBILE SIM NO. 9540493734 WAS NOT PROPERLY PROVED.

In the present case the CDR of mobile SIM No. 9540493734 was not properly proved. As per the case of the prosecution the above mentioned SIM number though was issued in the name of PW­16 Sh. Satish, but same was being used by the accused. However the call details record of the said SIM number was not properly proved by the prosecution on the record. The CDR record was though obtained during investigation, but the same was not proved properly be examining the Nodal Officer of company which had issued the said SIM number to PW­16. Further during cross examination PW­16 Satish has also admitted that his mobile phone was also being used by few other labours. PW­16 has also admitted that the other labours working with the accused were also using the said SIM number. Hence, it can not be said that accused was the only person who was using the above mentioned SIM number.

4) LAST SEEN In the present case prosecution could not prove the last seen evidence. Although PW­2 Sh. Sachin, owner of the rented accommodation of deceased has SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 36 of total pages 39 deposed that in the evening hours of 27.07.2014, when he had visited the tenanted premises of Sant Ram, he saw that accused Phool Prasad was present inside the tenanted room. However the testimony of PW­2 is not of much help as the postmortem report dated 01.08.2014, has given approximately to be 4/5 days prior and no specific date can be established regarding exact time of death. Moreover deceased was found dead in a home where there were other tenants living in the adjoining rooms but no one came forward to give the testimony. So in the present circumstances it will not be apt to rely much in "last seen theory".

18) WHETHER PRESUMPTION OF SECTION 106 OF INDIAN EVIDENCE ACT CAN BE RAISED IN THE PRESENT CASE.

Section 106 of the Indian Evidence Act is reproduced herein below:­ " 106. Burden of proving fact especially within the knowledge­ When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him"

At this juncture, it is expedient to consider the legal position regarding invocation of Section 106 of Evidence Act.

One of the earliest cases in which Section 106 of Evidence Act was examined and explained are Attygalle versus Emperior reported in (1936) 38 Bombay LR 700. Stephen Seneviratne versus Kind reported in (1937) 39 Bombay LR 1.

"In the aforesaid decisions, Their Lordships of the Privy Counsel dealt with Section 106 of Ordinance No. 14 of 1895(corresponding to Section 106 of the Indian Evidence Act). It was held that Section 106 of the Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing innocence."

Scope of section 106 of the Indian Evidence Act was examined in detail by the Apex Court in the case of Shambhu Nath Mehra versus State of Ajmer reported in AIR 1956 SC 404, wherein learned Judges spelt out the legal principle in paragraph 11 which read as under :

SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 37 of total pages 39

11. "This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The world "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge."

In Ch. Razik Ram versus Ch. J.S. Chouhan reported in AIR 1975 SC 667 it was held as under:­ "116. In the first place, it may be remembered that the principle underlying Section 106 Evidence Act which is an exception to the general rule governing burden of proof­applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant­respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent."

In State of West Bengal versus Mis Mohammad Umar reported in 2000 SCC(Cr) 1516 it has been held as under:­ "36. In his context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

The Section 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 the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference"

19. In view of above discussion, I am of the view that chain of evidence is not complete. Even though the prosecution has successfully proved that accused was residing alongwith the deceased prior to 15­20 days before his death, but it has failed to SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 38 of total pages 39 prove that accused was present with the deceased in his rented accommodation on that fateful day. In the present case although prosecution has proved the factum of death of deceased and the fact that accused was residing alongwith the deceased prior to 15­20 days of the incident but failed to prove that it was only the accused who was using mobile phone no. 9540493734 as the same was also being used by other persons. The prosecution proved recovery of one of key of the lock of the rented room of the deceased but failed to prove that other persons did not have duplicate keys and it has become imperative on the part of the prosecution in view of the FSL report. Similarly "last seen testimony is not of much value as stated supra". Further prosecution also failed to prove the CDR record of the alleged mobile SIM no. 9540493734, which was also stated to be used by the accused. Hence the prosecution has miserably failed to prove that in all human probability the act must had been done by the accused. The chain of circumstances distorted so that there is every possibility that some body else could also have committed the offence. Accordingly, benefit of doubt is given to accused and he is acquitted in the present case. Digitally signed by SHIVAJI SHIVAJI ANAND Announced in the Open Court ANAND Date:

2021.01.29 through Webex meeting app. (SHIVAJI ANAND) 16:34:40 +0530 on 29/01/2021 Additional Sessions Judge­04 North District/Rohini Courts/Delhi SC No. 58418/16 FIR no. 595/14 PS Bawana State Vs Phool Prasad Page no. 39 of total pages 39