Delhi District Court
Sessions Case/18/2009 on 7 July, 2010
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE -01, WEST, DELHI
Sessions Case Number : 18 of 2009.
Unique ID Number : 02401R0082032009.
State v. Mr. Sunil @ Sunny son of Mr. Mahabir Singh,
Resident of SRS-250, Village Piragarhi,
Paschim Vihar, Delhi.
FIR Number 455/2008.
Police Station Paschim Vihar,
Under sections 302/201 of the IPC.
Date of filing of the charge sheet before : 05.02.2009.
the Court of Metropolitan Magistrate
Date of receipt of file after committal : 25.02.2009.
Arguments concluded on : 07.07.2010.
Date of judgment : 07.07.2010.
Appearances: Mr. Vinod Kumar Sharma, Additional Public
Prosecutor for the State.
Accused has been produced from judicial custody.
Mr. Vijender Vats, advocate amicus curiae for the accused.
JUDGMENT
1. At the outset it may be mentioned that this murder case has been decided in one year and four and a half months of its committal.
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Priority has also been given to this file keeping in view the nature of the offence alleged to have been committed and as the accused person namely Mr.Sunil @ Sunny is in judicial custody.
ALLEGATIONS OF THE PROSECUTION
2. Mr. Sunil @ Sunny, the accused, has been charge sheeted by Police Station Paschim Vihar, Delhi for the offence under sections 302/201 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that in the intervening night of 13/14.10.2008 on the second floor of 287/24 Factory Pira Garhi Village, Delhi, within the jurisdiction of Police Station Paschim Vihar, the accused Mr.Sunil @ Sunny along with co-accused Mr.Kapil @ Ballo (since not arrested) in furtherance of their common intention caused multiple injuries by stabbing a knife in the chest and abdomen of deceased Mr.Rajesh Kumar with the intention to cause his death and as a result of injuries Mr.Rajesh Kumar died. The accused also caused the evidence to disappear connected with said offence by setting on fire the dead body by putting chemicals on the dead body with the intention of screening themselves from legal punishment.
CHARGE SHEET AND COMMITTAL
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 9 : ; ; < = > ; ?
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AMICUS CURIAE
4. As the accused Mr.Sunil @ Sunny expressed his inability to engage a lawyer to defend himself, Mr.Vijender Vats, advocate was appointed as amicus curiae vide order dated 27.02.2009.
CHARGE
5. After hearing arguments, charge for offence under sections 302/201 of the Indian Penal Code (hereinafter referred to as the IPC) was framed against the accused on 12.03.2009 to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
6. In order to prove its case, the prosecution has examined as many as 26 witnesses i.e. Mr. Shiv Kumar Singh, the brother of the deceased who has identified his body, as PW1; Mr. Hari Nath Singh, cousin brother of the deceased who has also identified his body, as PW2; Mr.Satish Handa, the owner of the factory/ printing press where incident took place where the deceased was working as a helper, as PW3; HC Dayanand , the duty officer who has recorded DD No.40A on 06.11.2008 in the present case, as PW4; WCt.Punam Bist, the PCR official who recorded DD entry on 13/14.10.2008 at about 6.50 ] ^ _ _ ` a b _ c d _ ^ e f g h ^ i j k l a m n o o p q r b ` s f ^ t u&e'f g h ^ i j o n v o k w o o l n*o x n*o o p q ] y d y ^ z.^ i _ f _/] f b ` { |2] f b b } q ~ j j 6d 8^ a m jj~ 3 32 am, as PW5; SI Gulshan who prepared Crime Scene Report, as PW6; ASI Madan Lal, the first Investigating Officer, as PW7; ASI Pushpa, the duty officer who has recorded the formal FIR of the case, as PW8; Dr.Manoj Dhingra, who had conducted the postmortem on the body of the deceased, as PW9; Dr. A. K. Srivastav, who conducted the DNA test, as PW10; Ct.Rakesh Kumar, photographer from District Crime Team and took the photographs of the spot, as PW11; WHC Neelam, the duty officer who received call regarding incident from the factory owner and recorded DD Numbers 17 and 8, as PW12; Ct. Sharan Pal, police witness of the investigation, as PW13; Ct. Inder Kumar, the police witness of the investigation, as PW14; Ct.Udham Singh, official from Mobile Crime Team and took finger prints from the spot, as PW15; HC Vijender Singh, the MHC(M), as PW16; Inspector Rajesh Sharma, the investigating officer who arrested the accused Mr.Sunil @ Sunny, as PW17; Ct.Shah Ji from SIT Crime Branch who is a witness of arrest of the accused, as PW18; Ct. Partap Singh, the witness of the investigation, as PW19; SI Mukesh Kumar, draftsman from PHQ, who took rough notes of the spot and prepared scaled site plan, as PW20; Ct. Sahender Kumar, who took the exhibits to the FSL Rohini and witnessed the Doctor from FSL taking the blood of Mr.Uma Shankar, father of the deceased for the DNA test, as PW21; Inspector Sanjeev Tomar, the Investigating &' * * . / 2 ¡ ¢ £6 ¤8 ¢ 4 32 Officer who took over the investigation from ASI Madan Lal, as PW22; Inspector Jai Bhagwan, Investigation Officer, as PW23; SI Surender Sandhu, witness of investigation who took the accused on police remand for two days, as PW24; Mr. Sushil Kumar, Finger Print Expert, as PW25; and Dr. Dhruw Sharma, Sr.Scientific Officer (Biology) who examined the exhibits of the present case, as PW26.
7. On the statement of the Additional Public Prosecutor on 22.10.2009, PW Ct.Ravinder Singh was given up as his evidence was stated to be of repetitive nature.
STATEMENT OF THE ACCUSED AND HIS DEFENCE
8. In his statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) recorded on 28.05.2010, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. Nothing incriminating was recovered from his possession. He has preferred to lead evidence in his defence and wanted to examine Ms.Rajwati, his paternal aunt but he did not examine any witness in his defence. The defence evidence was closed on the statement of the amicus curiae on ARGUMENTS
9. I have heard arguments at length. I have also given my conscious ¥ ¦ § § ¨ © ª § « ¬ § ¦ ® ¯ ° ¦ ± ² ³ ´ © µ ¶ · · ¸ ¹ º ª ¨ » ® ¦ ¼ ½&'® ¯ ° ¦ ± ² · ¶ ¾ · ³ ¿ · · ´ ¶*· À ¶*· · ¸ ¹ ¥ Á ¬ Á ¦ Â.¦ ± § ® §/¥ ® ª ¨ à Ä2¥ ® ª ª Å ¹ Æ ² ² Ç6¬ È8¦ © µ ²²Æ 5 32 thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
10.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 302/201 IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
11.The advocate, amicus curie for the accused, on the other hand, has requested for his acquittal submitting that there are several contradictions and discrepancies in the testimonies of the witnesses of the prosecution. There is no eye witness, there is no mens rea, no case of theft, no chemical in the factory, forensic evidence against the prosecution, etc. It is also submitted that the present case does not even have any circumstantial evidence as there are only snaps in the so called chain of circumstantial evidence. There is a delay in lodging of the FIR and recording of the statement of the so called witnesses who had last seen the deceased in the company of the accused and they are interested witnesses. It is submitted that it is clear from the record that all the accused persons have been falsely implicated in this case.
É Ê Ë Ë Ì Í Î Ë Ï Ð Ë Ê Ñ Ò Ó Ô Ê Õ Ö × Ø Í Ù Ú Û Û Ü Ý Þ Î Ì ß Ò Ê à á&Ñ'Ò Ó Ô Ê Õ Ö Û Ú â Û × ã Û Û Ø Ú*Û ä Ú*Û Û Ü Ý É å Ð å Ê æ.Ê Õ Ë Ò Ë/É Ò Î Ì ç è2É Ò Î Î é Ý ê Ö Ö ë6Ð ì8Ê Í Ù ÖÖê 6 32 CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
12.The criminal action swung into motion on receipt of DD no. 8 dated 14.10.2008, Ex.PW5/A in Police Station Paschim Vihar whereby information was received that a man has been burnt in Pira Gari Village, near Daal Mill Taar Factory. The same was marked to ASI Madan Lal who went on the spot and after inspection made endorsement on Ex.PW5/A which is Ex PW7/A on the basis of which the FIR Ex.PW8/A was lodged and thereafter case was marked to inspector Sanjiv Tomar. Inspector Sanjiv Tomar along with other police officers went to the spot i. e. 287/24 Factory Pira Gari on the second floor where he found a half burnt dead body of a man, two steel plates, steel glass, one diya, one cot, one empty quarter bottle of Sixer brand, stone and match box were found near the body. The blood and earth control were also lifted. There was some ash under the body. The same were seized vide seizure memo Ex.PW14/A, Ex.PW14/B, Ex.PW14/C, Ex.PW14/D, Ex.PW14/E, Ex.PW14/F, Ex.PW14/G, Ex.PW14/H and Ex.PW14/J. Inspector Tomar also prepared the site plan, Ex.PW22/A. The Crime Team was also called at the spot and its report is Ex. PW6/A. The scaled site plan is Ex.PW20/A, The photographs are Ex.PW7/1 to 26. The finger prints were lifted vide Ex.PW15/A.The dead body was sent to the mortuary through Ct. Inder Singh with direction for moving an í î ï ï ð ñ ò ï ó ô ï î õ ö ÷ ø î ù ú û ü ñ ý þ ÿ ÿ ò ð ö î &õ'ö ÷ ø î ù ú ÿ þ ÿ û ÿ ÿ ü þ* ÿ þ*ÿ ÿ í ô î .î ù ï ö ï/í ö ò ð 2í ö ò ò ú ú 6ô 8î ñ ý úú 7 32 application for preserving it for 72 hours as there was no identification of the body till then. On 16.10.2008, the dead body was identified by the brother and cousin of the deceased. The request for postmortem is Ex. PW22/B, brief facts of the case is Ex.PW22/C, statement of Mr. Hari Singh is Ex. PW2/A and statement of Mr. Shiv Kumar is Ex. PW1/A. Form 25-35 Ex.PW22/D were prepared. On 16.10.2008 after the postmortem the doctor gave a pullanda of sternum for the purpose of DNA test, one sealed pullanda of skin, one sealed pullanda of teeth, one sealed envelope and one sample seal which were seized vide memo Ex. PW7/B. The viscera box and sample seal were seized vide Ex. PW7/C. All the exhibits were deposited with the Malkhana Moharrar. The father of the deceased was also sent to the hospital for collecting blood for the DNA test. Thereafter, the investigation was handed over to Inspector Jai Bhagwan. On 07.11.2008, accused was apprehended and his disclosure statement Ex. PW7/D was recorded and in pursuance to the same the accused got recovered, one knife (weapon of offence) one pair of slippers (chappal) one shirt and one pant from his residence which were seized vide seizure memo Ex. PW7/A. The chappal of the left foot was blood stained. The accused also pointed the place of incident vide pointing out memo Ex. PW7/B. The exhibits of the case were sent to the FSL and were examined vide FSL reports Ex.PW26/A and Ex.PW26/B. On !#"
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8 32 29.01.2009, the weapon of offence was produced before Dr. Manoj Dhingra who gave his opinion of the use of the weapon vide Ex.PW23/A. The photocopy of attendance register was collected from the owner of the factory Mr.Satish Handa vide seizure memo Ex.PW3/B and the copy of the attendance register is Ex.PW3/A. The finger prints of the accused and other inmates were sent to the finger print bureau which gave its report Ex.PW25/A.
13.The story projected by the prosecution is that the deceased was working as a helper in the factory of Mr.Satish Handa where the accused Mr.Sunil @ Sunny along with co-accused came to commit theft but were nticed on which they killed the deceased and destroyed the evidence against them by burning the body after pouring chemical on it.
14.The investigation conducted and the documents prepared have been proved by the police witnesses. PWs 1 and 2 had identified the body. PW23 is the doctor who has conducted the post mortem on the body of the deceased. The FSL reports, hand writing analysis report, finger print report, DNA report have been proved by the experts. All the relevant details and the documents have been brought forth in the evidence of the prosecution witnesses.
J K L L M N O L P#Q L K%R'S T U K V W X Y N Z [ \ \ ] ^ _ O M ` S K a b7R8S T U K V W \ [ c \ X d'\ \ Y [;\ e [;\ \ ] ^ J f Q f K g?K V L S L@J S O M h iCJ S O O j ^ k W W lGQ mIK N Z WWk 9 32 DISCUSSION, ANALYSIS AND FINDINGS
15.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth , this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of n o p p q r s p t#u p o%v'w x y o z { | } r ~ s q w o 7v8w x y o z { | ' } ; ; n u o ?o z p w p@n w s q Cn w s s { { Gu Io r ~ {{ 10 32 the prosecution or a defence case could be concretized .It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
16.It may be observed here that it is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if the speak to all events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witness was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the # %' ¡ ¢ £ ¤ ¤ ¥ ¦ § ¨ © ª78 ¤ £ « ¤ ¬'¤ ¤ ¡ £;¤ £;¤ ¤ ¥ ¦ ® ® ¯? @ ° ±C ² ¦ ³ ´G µI ¢ ³ 11 32 same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone.
17.Under this sphere, I now proceed to test the submissions of both the sides.
BLEMISHES WHICH ARE FATAL
18. I find that there are several overwhelming inconsistencies and blemishes and glaring contradictions in the evidence of the prosecution witnesses which remain unexplained by the prosecution and these blemishes are fatal to the prosecution version as they strike at the root of the case. The prosecution story does not inspire confidence and is not worthy of credence.
19.I find that the prosecution has miserably failed to bring home the charge against the accused for plurality of reasons, elaborated below.
NO EYE WITNESS
20.It is clear from the record that there is no eye witness to the incident and the prosecution case is based on circumstantial evidence and last seen theory.
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21.The identity of the deceased is established from the evidence of PWs 1 and 2, his brother and cousin, who have identified him. More importantly, it is also clear from the DNA report, Ex.PW10/A that Mr.Uma Shankar is the biological father of the deceased. Needless to mention here that the name of the deceased is Mr.Rajesh Kumar and his father's name is Mr.Uma Shankar. Therefore, it is clear that the deceased is Mr.Rajesh Kumar son of Mr.Uma Shankar.
FINGER PRINT REPORT
22.The finger prints of the accused and the chance prints lifted from the spot do not match as is clear from the report of the finger print expert, Ex.PW25/A. The report clearly indicates that the accused was not present at the spot when the alleged incident occurred otherwise his finger prints would have been found there.
23.Therefore, it is clear that the accused was not at the spot when the incident has occurred otherwise his finger prints would have been detected at the spot.
FSL REPORTS
24.It can be seen from the FSL reports Ex.PW26/A and Ex.PW26/B Ú Û Ü Ü Ý Þ ß Ü à#á Ü Û%â'ã ä å Û æ ç è é Þ ê ë ì ì í î ï ß Ý ð ã Û ñ ò7â8ã ä å Û æ ç ì ë ó ì è ô'ì ì é ë;ì õ ë;ì ì í î Ú ö á ö Û ÷?Û æ Ü ã Ü@Ú ã ß Ý ø ùCÚ ã ß ß ú î û ç ç üGá ýIÛ Þ ê ççû 13 32 that although blood was detected on the all metallic knife having rusty stains but there was no reaction regarding the species of origin and consequently the ABO grouping could be ascertained. In such a situation, it cannot be said with certainty that the alleged recovered knife was actually used in the commission of the offence.
EXHIBITS OF THE CASE
25.The police witnesses of investigation have deposed that exhibits were lifted from the spot of occurrence.
INJURIES
26.PW9 has deposed about the injuries caused to the deceased which are as follows:
''Injury number 1 Dermo epidermal burn injury involving the whole body which singzing of body hair at places. Kerosene like smell present. Total body surface area involved 100 %. Wedge shape stab wound 4 cm x 1 cmx20 cm present on outer front of right upper abdomen. 10Cm from mid line and 2 cm below lower border of rip cage. Directed upward backward and from right to left paritonil cavity and right lobe of lever from its outer surface. Wedge shape stab wound 3cm x 1cm x cavity deep present on middle right side abdomen. 3 cm below injury no.2 and 5 cm from mid line.
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Stab wound 3x1cm x cavity deep in mid line of lower abdomen. 3 cm below umblicos. Sharp stab 3.5cm x1x cavity deep outer front of lower left abdomen 6 cm from the mid line. Wedge sharp stab on 4 cm x 1 cm x18cm present on outer aspect of lower left chest directed forward downward and from left to right piercing through the 9 intercostal space paritonil cavity caring diaphram x spleen Wedge shape wound 3x 1cm x 14 cm on middle of right side of chest. 2 cm inner to the nipple directed backward and from left to right partonil penetrating fourth intercostal space into pural cavity and to the upper lobe of right lung. Wedge shape wound on outer back of middle of left side of chest 3.5cm x1x15 cm through 7 intercostal space into the pural cavity and penetrating lower lobe of left lung. Head:
Effusion over occipital reason sub dural hamatoma present over both cerebral hemisphere patchy SAH present all over the brain.
The report shows that the deceased has been murdered brutally.
POST MORTEM REPORT AND OPINION ABOUT THE KNIFE
27.The post mortem report Ex.PW 9/A mentions the cause of death as haemorrhage and shock consequent to penetrating injuries to chest and abdomen caused by single edge sharp object. The opinion of the doctor about the weapon of offence is Ex.PW23/A. 3*4 5 5 6 7 8 5 9 : 5 4 ; < = >%4 ? @ A B 7 C D E E F G H 8 6 I < 4 J K";#< = > 4 ? @ E D%L%E A M E E B D'E N D'E E F G 3*O : O 4 PQ4 ? 5 < 5R3*< 8 6 S TU3*< 8 8 V G W @ @ X1: YZ4 7 C @@W 15 32
28.PW9 has deposed that "I prepared the sketch of knife and I also examined my PM report and thereafter I opined that the stab injury mentioned in the PM report could be caused by the weapon of offence produced before me. .............When the knife was produced before me it was having reddish brown stain. The blood on the weapon of offence was not examined by me."
29.However, this evidence is contrary to the evidence of the FSL expert as well as the finger print expert whose reports prove that there is no incriminating evidence to connect the accused to the crime and therefore more reliance is required to be placed on the reports of the forensic expert and finger print expert than on the medical report.
CHEMICAL
30.The prosecution has alleged that the body of the deceased was burnt after pouring chemical over it and setting it on fire in order to destroy the evidence of the crime.
31.However, PW3, the owner of the Printing Press/factory has categorically deposed that no chemical in the factory. Even the police witnesses including the Investigation Officer have not [*\ ] ] ^ _ ` ] a b ] \ c d e f%\ g h i j _ k l m m n o p ` ^ q d \ r s"c#d e f \ g h m l%t%m i u m m j l'm v l'm m n o [*w b w \ xQ\ g ] d ]R[*d ` ^ y zU[*d ` ` { o | h h }1b ~Z\ _ k hh| 16 32 deposed about recovery of any chemical from the spot.
32.The prosecution has claimed that the body of the deceased was burnt by pouring chemical over it. However, even this claim of the prosecution is not proved as PW3 has categorically stated that there is no chemical available in the factory. Even the IO and the other police witnesses have admitted that no chemical was recovered from the spot and the factory.
33.PW9 Dr Manoj Dhingra has deposed that "I had smelt smell of kerosene was present over the body. I can not tell whether it was mixed with chemical or not." However the expert from the FSL has not detected kerosene in the recovered exhibits.
34.PW 3 has also deposed that even diesel is not available in his factory. The police witnesses have not found any chemical, diesel, kerosene or any other inflammable substance from the factory which could have been used for setting the body of the deceased on fire.
35.These facts indicate that the claim of the prosecution is not correct.
WEAPON OF OFFENCE
36.The prosecution has projected that the deceased was murdered by * % "# %% ' ' * Q R* U* ¡1 ¢Z 17 £ ¤ 32 ¥ ¥ ¦ assaulting and stabbing him with a knife which has been recovered at the instance of the accused.
37.However, I find that this hypothesis is not proved as the FSL reports, Ex.PW26/A and Ex.PW26/B, shatter this myth since the knife does not have reaction to the alleged blood on the knife regarding the species of origin and the ABO Grouping. Further, the report of the finger print expert, Ex.PW25/A also indicates that the finger prints of the deceased were not detected on the knife.
38.As regards the weapon of offence although the same has been detected to have blood on it as per the FSL report Ex. PW 26/A but it is also clear from the FSL report Ex. PW 26/B that there was no reaction regarding the species of origin on the blood detected on the knife and therefore it cannot be said with certainty whether it was human blood or animal blood.
39.Even the finger prints from the knife were not lifted nor sent for comparison to a certain whether or not the knife was ever in the possession or hold of the accused.
40.Therefore the same cannot be held to be "weapon of offence".
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41.It has been projected that the slippers of the accused had blood of the deceased on them which proves the presence of the accused at the spot.
42.However, I find that the slippers allegedly of the accused recovered from the spot also do not have blood on them as per the FSL report Ex.PW26/A which proves that the accused was not at the spot when the crime was committed.
NO PUBLIC WITNESS ASSOCIATED
43.The investigation conducted in this case also appears to be not proper and despite the spot of occurrence being a public place, the spot of arrest being a public place and the investigation also being conducted at public place, no person from the public has been associated at any point of time. The explanation given by the prosecution that the public persons had left without disclosing their names and addresses appears to be a bald assertion without any substantive evidence. The IO has neither given any notice to the persons who declined to join the investigation nor has taken any legal action against them. Where independent persons from the public are available and are not joined in the investigation and there is apparently no justification for the same nor any legal action is taken by the Investigation Officer against them, then the version put Ï*Ð Ñ Ñ Ò Ó Ô Ñ Õ Ö Ñ Ð × Ø Ù Ú%Ð Û Ü Ý Þ Ó ß à á á â ã ä Ô Ò å Ø Ð æ ç"×#Ø Ù Ú Ð Û Ü á à%è%á Ý é á á Þ à'á ê à'á á â ã Ï*ë Ö ë Ð ìQÐ Û Ñ Ø ÑRÏ*Ø Ô Ò í îUÏ*Ø Ô Ô ï ã ð Ü Ü ñ1Ö òZÐ 19 ó ô 32 õ õ ö forth becomes unreliable. The accused has been prejudiced by the non-joining of the public witnesses in the investigation.
44.It is also clear from the prosecution evidence especially the evidence of the Investigation Officer that no effort has been made to join the independent persons from the public who allegedly were available.
45.As per the police witnesses, one Mr. Devender Singh who lives in the vicinity of the factory had informed the police about the offence but he has neither been cited as witness nor produced nor examined by the prosecution. PW 3 who is the factory owner has deposed that he does not know any man by the name of Mr. Devender Singh and therefore this fact coupled with the fact that Mr. Devender Singh have not been examined shatters the claim of the prosecution.
46.The prosecution has also not examined Mr.Hardeep Singh @ Bobby the owner of the premises where the offence was committed.
47.The prosecution has also not examined Ms.Mamta wife of accused to whom the information of arrest of the accused was allegedly given.
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48.The prosecution has also not examined Driver Mr.Radhey who was available at the spot.
49.The prosecution has also not examined Mr.Dharampal, Mr.Kishan and Mr.Dayanand, neighbours despite being available.
50.It is also clear from the prosecution evidence especially the evidence of the Investigation Officer that no effort has been made to join the factory workers who were available nor any explanation is furnished regarding the same.
51.These facts in totality throw a shadow of doubt on the prosecution story as its veracity stands shattered due to the lapse. DELAY IN SENDING THE EXHIBITS TO THE FSL AND THEIR EXAMINATION
52.The exhibits of the case have been collected in this case on 14.10.2008 and 08.11.2008 and have been sent to the FSL for examination on 29.12.2008. The FSL expert, PW 26, has examined the exhibits on 30.07.2009 vide their reports, Ex.PW 26/A, and Ex.PW26/B.
53.The prosecution is required to explain the reason for not sending the exhibits to the FSL immediately and the delay of each day is , - . . / 0 1 .!243 . -65 7 8 9 - : ; < =!0 > ? @ @ A B C 1 / D 7 - E FG5 7 8 9 - : ; @ ? H @ < I @ @ = ? @ J ? @ @ A B , K 3 K -!LM- : . 7 .N, 7 1 / O PQ, 7 1 1 R B S ; ; TU3 VW-
21 X Y 32 ZZ[ required to be justified. The reason for immediately sending them to the FSL is to rule out the possibility of the exhibits being tampered with or manipulated.
54.However, in this case, no explanation is coming forth from the Investigation Officer or the prosecution as to why there was a delay of about two months in sending the exhibits to the FSL which throws a shadow of doubt on the prosecution version. No explanation at all is coming forth from the prosecution especially the IO about the delay in sending of the recovered exhibits to the FSL.
55.No explanation is coming forth from the FSL expert about the delay of seven months in the examination of the exhibits after their deposit in the FSL.
56.The delay in sending of the exhibits from the Police Station to the FSL and their examination in the FSL remains unexplained by the prosecution and its witnesses which throws a doubt on the prosecution story and due to the same the accused cannot be convicted.
57.Therefore, as the delay in sending of the exhibits from the Police Station to the FSL and their examination in the FSL remains \ ] ^ ^ _ ` a ^!b4c ^ ]6d e f g ] h i j k!` l m n n o p q a _ r e ] s tGd e f g ] h i n m u n j v n n k m n w m n n o p \ x c x ]!yM] h ^ e ^N\ e a _ z {Q\ e a a | p } i i ~Uc W] 22 32 unexplained by the prosecution and its witnesses, a doubt is cast upon the prosecution story.
FAULTY INVESTIGATION
58.Lastly, it may be observed that some lapses in the investigation have also been noticed which cannot be ignored. As far as the investigation is concerned, there is nothing on the record to suggest that the IO had any ulterior motive to falsely implicate the accused in this case nor there is anything to indicate that the investigation was unfair or prejudiced.
59.However, still there are some lapses noticed in the investigation conducted in this case. It has already been discussed above that no independent person from the public or the factory where the offence was committed has been associated in the investigation by the IO at any point of time. The IO has also failed to send the exhibits of the case to the FSL immediately despite this case being of heinous nature and no explanation is coming forth regarding the same.
60.All the above lapses indicate that the investigation has not been conducted properly in the present case.
61.The arrest of the accused appears be be manipulated. As per the !4 6 ! G !¡M N ¢ £Q ¤ ¥ ¦U §W 23 ¨ © 32 ªª« prosecution case, the accused was apprehended at about 4.25 P.M on 06.11.2008 at Rithala Metro Station on a secret information received by Inspector Rajesh Sharma, PW 17. However, I find that neither any independent person from the public nor the so called secret informer have been produced by the prosecution nor examined to show that the accused was actually pointed out to the IO. It has not been disclosed any where as to how the accused was identified to be to person who was involved in a murder case in Pachim Vihar. The IO has failed to produce the DD entry in which he had reduced the secret information in writing. The IO has also failed to take action against the public persons who declined to join the investigation and has also not been able to disclose the physical description of the public persons.
62.PW17 has deposed that the secret information was received in the presence of ASI Zile Singh, ASI Shiv Kumar, Ct. Rajendra, Ct. Shah ji, Ct. Vijay and Ct. Atul. However, PW18 Ct. Shah ji has denied his presence when the secret information was received by the IO. ASI Zile Singh, ASI Shiv Kumar, Ct. Rajendra, Ct. Vijay and Ct. Atul have not even been cited as witnesses by the prosecution nor produced nor examined.
63.Further it is clear from the evidence of PW 3 as well as the IO that the second floor store was kept locked. Lock of the store was intact ¬ ® ® ¯ ° ± ®!²4³ ® 6´ µ ¶ · ¸ ¹ º »!° ¼ ½ ¾ ¾ ¿ À Á ± ¯ Â µ Ã ÄG´ µ ¶ · ¸ ¹ ¾ ½ Å ¾ º Æ ¾ ¾ » ½ ¾ Ç ½ ¾ ¾ ¿ À ¬ È ³ È !ÉM ¸ ® µ ®N¬ µ ± ¯ Ê ËQ¬ µ ± ± Ì À Í ¹ ¹ ÎU³ ÏW 24 Ð Ñ 32 ÒÒÓ and the lock of the shutter was broken. There was apparently no entry from the terrace into the lower floors. However, as the lock of the shutter was broken it is possible that someone may have entered from the ground floor.
64.It is also clear from the evidence of SI Surender Singh that the arrest of the accused is manipulated. He did not even know the name of the relative of the accused who was informed about his arrest. However it can be seen from the arrest memo of the accused that the signatures of Ms. Mamta wife of the accused are on the same which indicates that a fake arrest of the accused have been made.
65.As regards the evidence of Mr. Sanjeev Tomar it is shocking to note that he did not even know the address the spot of incident and claimed not to remember it. He did not remember the name of the deceased, name of the factory owner, the height of the rooms, how many rooms were on the ground, first and second floors. He had not even recorded the statements of any witness, neighbours namely Mr.Dharampal, Mr.Kishan and Mr.Dayanand, driver Mr.Radhey Shyam, factory owner, labour / worker of the factory.
66.These facts clearly show that there is a possibility of false implication of the accused in the present case.
Ô Õ Ö Ö × Ø Ù Ö!Ú4Û Ö Õ6Ü Ý Þ ß Õ à á â ã!Ø ä å æ æ ç è é Ù × ê Ý Õ ë ìGÜ Ý Þ ß Õ à á æ å í æ â î æ æ ã å æ ï å æ æ ç è Ô ð Û ð Õ!ñMÕ à Ö Ý ÖNÔ Ý Ù × ò óQÔ Ý Ù Ù ô è õ á á öUÛ ÷WÕ 25 ø ù 32 úúû PLACE OF INCIDENT
67.As per the prosecution, PW3 was running a printing press in the name and style of Suraj Enterprises at 487/27, Pira Garhi and the deceased was working in his factory as a helper. The deceased used to sleep on the roof of the factory where he was murdered and his body was burnt.
68.I find that the factory in question is situated in a thickly populated area and has buildings on three sides a road on one side. It is also clear that the terrace level of the factory is lower than the adjoining building and it is possible that any one can come at adjoining building to the terrace. Merely because the house of the accused is in the area where the factory is located does not imply in any manner that it was the accused and none else who had come there and committed the offence.
ALLEGATION OF THE DECEASED BEING DRUNK
69.The prosecution has argued that the deceased was drunk and was easily overpowered by the accused. However, this hypothesis is shattered by the evidence of PW9 who has deposed that "As there is no report in my PM report that deceased was under influence of liquor or there was smell of alcohol." It is clear that the deceased was not drunk nor under the influence of alcohol.
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ALLEGATION OF THEFT BY DECEASED
70.It is claimed by the prosecution that the accused had come to the factory to commit theft. However, this claim is shattered by the evidence of PW3 wherein he has deposed that neither any article was missing nor there was any theft.
MANNER OF STABBING NOT POSSIBLE
71.The story projected by the prosecution is that when the accused along with co-accused, Mr. Kapil had gone to commit theft in the factory of PW 3, the deceased who was sleeping on the terrace had woken up and confronted them. He tried to prevent them from committing the offence and was killed in the process.
72.It has been argued by the prosecution that the deceased was holding Mr. Kapil when he was stabbed by the accused. However this possibility does not appear to be correct as the deceased in all probability would have held Mr. Kapil with both hands in front of him or put a clasp of his arms around him and in such a situation the accused could not have stabbed him in the stomach as the torso and the stomach of the deceased would be covered by the body of Mr. Kapil who was being held by him.
73.The version presented by the prosecution regarding the manner of 5(6$7 7 8 9 : 7 ; < 7 6 = > ?
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@ 6 A B G F"N"G C O G G D$F%G P$F%G G H I 5(Q < Q 6 RS6 A 7 >$7T5(> : 8 U VW5(> : : X I Y B B Z/< [\6 27 ] ^ 32 _ _ ` stabbing also does not appear to be believable.
IDENTITY OF THE ACCUSED AS CULPRIT
74.I find that the identity of the accused person as the culprit is not established by the prosecution as it is clear from the report of the finger print expert that the finger prints of the accused were not detected on the exhibits of the case. The knife allegedly recovered does not show that the blood on it was of human or animal origin as there was no reaction. The slippers allegedly of the accused recovered from the spot also do not have blood on them as per the FSL report Ex.PW26/A. There is no eye witness of the incident. There is no incriminating evidence against the accused.
75.In such a situation, it cannot be said with certainty that the accused person is the culprit as his identity has not been established by the prosecution.
76.In the present case there is no eye witness account, the entire case hinges on circumstantial evidence. Regarding cases based on circumstantial evidence, it has been held in 2009 111 AD (SC) 389 as follows:
''when a case rests on circumstantial evidence, a(b$c c d e f c g h c b i j k l"b m n o p e q r s s t u v f d w j b x y i j k l b m n s r"z"s o { s s p$r%s |$r%s s t u a(} h } b ~Sb m c j$cTa(j f d Wa(j f f u n n /h \b 28 32 such evidence must satisfy oftquoted tests viz:
the circumstance from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
those circumstance should be of definite tendency unerringly pointing towards the guilt of accused;
the circumstance taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and in capable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.''
77.However, the prosecution has also failed to show any circumstantial evidence to connect the accused with the crime.
FINAL FINDING
78.All the above overwhelming discrepancies and glaring blemishes in the evidence of the prosecution witnesses are too significant to be ignored and are fatal to the prosecution case and are sufficient for throwing out the case of the prosecution as they strike at the root of the substantive allegations as against the accused. These blemishes ($ " ¡ "¢" £ $% ¤$% (¥ ¥ ¦S $T( § ¨W( © ª «/ ¬\ 29 ® 32 ¯ ¯ ° shatter the veracity of the prosecution case, thereby throwing a shadow of doubt on the prosecution story.
79.I am of the considered view that the above discrepancies occurring in the deposition of various witnesses are not usual and natural and strike at the root of the matter and are fatal for the prosecution, thereby throwing a shadow of doubt on the prosecution story and shatter its veracity. All the above discrepancies, contradictions and blemishes in the evidence of the prosecution witnesses are to significant to be ignored and appear to be fatal and are sufficient for throwing out the case of the prosecution as they strike at the root of the substantive allegations as against the accused.
80.The evidence of the prosecution witnesses does not appear to be reliable. The prosecution story does not inspire confidence and is not worthy of credence. The role of the accused as the culprit in the prosecution story has not been proved.
81.The prosecution has miserably failed to prove the charge against the accused for the offence under sections 302/201 of the IPC that in the intervening night of 13/14.10.2008 on the second floor of 287/24 Factory Pira Garhi Village, Delhi, within the jurisdiction of Police Station Paschim Vihar, the accused Mr.Sunil @ Sunny along with ±(²$³ ³ ´ µ ¶ ³ · ¸ ³ ² ¹ º » ¼"² ½ ¾ ¿ À µ Á Â Ã Ã Ä Å Æ ¶ ´ Ç º ² È É ¹ º » ¼ ² ½ ¾ Ã Â"Ê"Ã ¿ Ë Ã Ã À$Â%Ã Ì$Â%Ã Ã Ä Å ±(Í ¸ Í ² ÎS² ½ ³ º$³T±(º ¶ ´ Ï ÐW±(º ¶ ¶ Ñ Å Ò ¾ ¾ Ó/¸ Ô\² 30 Õ Ö 32 × × Ø co-accused Mr.Kapil @ Ballo (since not arrested) in furtherance of their common intention caused multiple injuries by stabbing a knife in the chest and abdomen of deceased Mr.Rajesh Kumar with the intention to cause his death and as a result of injuries Mr.Rajesh Kumar died and that t`he accused also caused the evidence to disappear connected with said offence by setting on fire the dead body by putting chemicals on the dead body with the intention of screening themselves from legal punishment.
82.The prosecution has failed to prove and establish the identity of the accused as the culprit, the manner in which the offence was committed, the delay in sending the exhibits to the FSL and delay in their examination, weapon of offence, etc. which falsifies the case of the prosecution.
83.The conscience of this Court is completely satisfied that the prosecution has miserably failed to bring home the charge against the accused namely Mr.Sunil @ Sunny.
84.Consequently, the accused namely Mr.Sunil @ Sunny is hereby given the benefit of doubt and is hereby acquitted of the charge. He is in judicial custody. He be released from judicial custody immediately, if not wanted in any other case.
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85.Before parting, I would also like to observe that Mr.Vijender Vats, advocate, who has been appointed as amicus curie in this case has made very sincere and laborious efforts in this case with his very able assistance and regular appearance, thereby enabling the Court to dispose the matter expeditiously.
86.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
87.After, the period of limitation, the file be consigned to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 07th day of July, 2010. ASJ-01, West, Delhi.
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