Delhi District Court
State vs . Bhima on 20 August, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 29/2014
Unique Case ID: 02404R0028142014
State Vs. Bhima
S/o Ranjeet Singh
R/o H. No. A13B, Paschimpuri, Delhi.
(Acquitted)
FIR No. : 114/2012
Police Station : Mangolpuri
Under Section : 307 Indian Penal Code.
Date of committal to Sessions Court : 15.05.2014
Date on which orders were reserved : 20.08.2014
Date on which judgment pronounced : 20.08.2014
JUDGMENT:
BRIEF FACTS:
(1) As per the allegations, on 28.03.2012 at 7.45 PM in front of MC Primary School, Q Block, Mangolpuri, Delhi, the accused Bhima attempted to kill Nagender Yadav by firing upon him from a country made pistol, under such circumstances if he (accused) by that act caused death of Nagender Yadav, he would be guilty of murder. State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 1 of 22
CASE OF PROSECUTION IN BRIEF:
(2) The present case was registered on the statement of injured / victim Nagender Yadav who alleged that on 28.3.2012 when he was going to the shop of of Kamal Nai situated at Q Block, the accused Bhima stopped his way and started teasing him but he ignored him. He further alleged that at about 7:45 PM when he was returning from the shop and reached at khatta near MC Primary School, Q Block, Mangolpuri, the accused Bhima who was known to him previously, was present there along with one other boy and the accused Bhima fired upon him from backside and the bullet hit his back and crossed his stomach and thereafter Bhima ran away from the spot.
(3) During investigations, the accused Bhima was arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE (4) Charge under Section 307 Indian Penal Code and Section 25/27/54/59 Arms Act was settled against the accused Bhima to which he pleaded not guilty and claimed trial.
EVIDENCE (5) In order to discharge the onus upon it, the prosecution has examined as many as Eleven Witnesses:
State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 2 of 22
Medical / Forensic Evidence:
(6) PW9 L. Babyto Devi has deposed on behalf of Ms Sunita Gupta and has identified her signatures on the biological report Ex.PW8/H. According to the report blood was detected on exhibits 1 (one shirt having dark brown stains) and exhibit 2 (one dark brown foul smelling liquid kept in a test tube). The witness has also identified the signatures of Ms Sunita Gupta who examined the exhibits serologically and gave her detailed report which is already Ex.PW8/I bearing her signatures at point A. According to the report blood group of B group was detected on exhibit 1 (shirt). This witness has not been cross examined on behalf of the accused despite opportunity. (7) PW10 Dr. Brijesh Singh has deposed that on 28.03.2012 he examined Nagender Yadav S/o Sh. Darshan Yadav aged about 35 years, male with alleged history of gun shot injury vide MLC Ex.PW10/A bearing his signatures at point A. According to the witness, the patient was referred to surgery department for further management and opinion, where Dr. Neel, SR (Surgery) examined the patient who was working under his supervision and his signatures are at point B and C on the MLC Ex.PW10/A. The witness has deposed that on the basis of observations made by himself and Dr. Neel, he opined the nature of injury as dangerous which opinion is at point D on MLC Ex.PW10/A. The witness has deposed that 5ml blood sample and blood soaked shirt were State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 3 of 22 sealed and handed over the same to the IO. This witness has not been cross examined on behalf of the accused despite opportunity. (8) PW11 V. R. Anand has proved that after examination of the exhibits he found that the individual characteristics of firing pin and breech face marks present on EC1 i.e. cartridge case recovered from the fire arm and on TC1 and TC2 were examined under comparison microscope and were found identical and hence EC1 has been fired through the country made pistol marked Ex.F1. According to him, the exhibits F1/EC1 were fire arm / ammunition as defined in the Arms Act 1959. This witness has not been cross examined on behalf of the accused despite opportunity.
Official Police / Witnesses:
(9) PW1 Ct. Dharampal has tendered his examinationinchief by way of affidavit which is Ex.PW1/1 and has relied upon the documents i.e. RC No. 6/21/12 copy of which is Ex.PW1/A and FSL receipt of the same copy of which is Ex.PW1/B. In his cross examination, the witness has denied the suggestion that the parcels were tampered during the time they remained in his possession. (10) PW2 HC Laxman has tendered his examinationinchief by way of affidavit which is Ex.PW2/1 and has relied upon the documents i.e. FIR copy of which is Ex.PW2/A and endorsement on State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 4 of 22 rukka which is Ex.PW2/B. In his cross examination, the witness has denied that the rukka has been ante timed on the directions of the senior officers. He further denied that there is an interpolation in both the date and the time. According to him, he had only made the entries in the rukka and the FIR was recorded in the computer by computer operator.
He has deposed that he did not issue any certificate U/s 65B of the Indian Evidence Act.
(11) PW3 Ct. Jagdish Parsad has tendered his examinationin chief by way of affidavit which is Ex.PW3/1 and has relied upon the DD No. 77B, copy of which is Ex.PW3/A. In his cross examination, the witness has denied that the DD has been ante timed on the directions of the senior officers.
(12) PW4 HC Mahabir has tendered his examinationinchief by way of affidavit which is Ex.PW4/1 and has relied upon entry in register No. 19 vide Mud No. 5938 copy of which is Ex.PW4/A (running into two pages). He has also relied upon entry in register No. 21 vide RC No. 6/21/12, copy of which is Ex.PW1/A, receipt of the FSL which is Ex.PW1/B, RC No. 11/21/12 copy of which is Ex.PW4/B and copy of FSL receipt which is Ex.PW4/C. (13) In his cross examination, the witness has denied that the entry in the register No. 19 have been ante dated and ante timed on the directions of the senior officers. He further denied that the parcel State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 5 of 22 containing the fire arm and cartridge case were tampered with during the same remained in his custody.
(14) PW5 Ct. Vishal Singh has also tendered his examinationin chief by way of affidavit which is Ex.PW5/1 bearing his signatures at points A and B. In his cross examination, the witness has deposed that he did not notice any family member with Nagender when he entered in the hospital and has voluntarily explained that he was accompanied by one Sohan Lal. He is unable to tell the relationship between Nagender and Sohan Lal.
(15) PW6 HC Babu Lal has tendered his examination in chief by way of affidavit which is Ex.PW6/1 and has relied upon RC No. 11/21/12, copy of which is Ex.PW4/B and FSL receipt of the same, copy of which is Ex.PW4/C. In his cross examination, the witness has denied that the parcels were tampered during the time they remained in his custody.
(16) PW7 M. A. Rizvi has proved the Sanction under Section 39 of Arms Act to prosecute the accused Bhima under Section 25 Arms Act vide Ex.PW7/A bearing his signatures at point A. (17) PW8 SI Uma Dutt has deposed that on 28.03.2012 he was on emergency duty from 8PM to 8AM next day and at about 8:20 PM duty officer informed him that one person is admitted in the Sanjay Gandhi Hospital after gun shot injury vide MLC No. 4998. According to the State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 6 of 22 witness, on receipt of this information he along with Ct. Vishwamurty reached at Sanjay Gandhi Hospital where he obtained the MLC of the injured in which doctor had mentioned about the gun shot injury and patient was unfit for statement. The witness has deposed that at the same time doctor concerned also handed over to him two sealed pullandas containing clothes of the injured and blood sample of injured along with sample seal. According to the witness, he took the same into possession vide seizure memo Ex.PW8/A and tried to search for the eye witness in Sanjay Gandhi Hospital but he could found the same. He has deposed that the Duty Constable in the Sanjay Gandhi Hospital informed him that one Sohan Lal had brought the injured to the hospital and he informed duty Ct.Vishal Singh had incident of gun shot has taken place at diving road of Q and P Block, Mangolpuri. According to the witness, thereafter he along with Ct. Vishwamurthy reached at the spot i.e. kuraghar near dividing road of Q and P block where he did not found any eye witness nor he found any blood lying at the spot.
(18) The witness has deposed that thereafter he prepared the rukka and handed over the same to Ct. Vishwamurthy for getting the case register who left the spot along with rukka at about 9:55 PM and after some time Ct. Vishwamurthy returned back to the spot along with the original rukka and copy of the FIR and handed over the same to him. The witness has deposed that thereafter he tried to search for the eye witness but could not find anybody and thereafter they returned back to State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 7 of 22 the police station and recorded the statement of Ct. Vishwamurthy U/s 161 Cr. P.C. The witness has deposed that on 30.03.2012 he along with Ct. Bhargav left the Police Station for the investigations in the present case vide DD No. 29 B, copy of which is Ex.PW8/B. The witness has further deposed that he tried to search for the witness in respect of the incident but could not find the same and thereafter at about 6 PM they reached at Sanjay Gandhi hospital where he had produced the MLC of the injured before the doctor concerned regarding his fitness for statement after which doctor concerned opined him fit for statement on the MLC of the injured itself. According to the witness, thereafter he recorded the statement of injured namely Nagender Yadav U/s 161 Cr. P.C. in which he had disclosed that one Bhima along with his associate had given him gun shot injury. He has deposed that thereafter he along with Ct. Bhargav left the hospital and went in search of Bhima and when they reached at L Block near pani ki tanki, Mangolpuri and while he was making inquiries regarding Bhima Ct. Bhargav informed him that he knew Bhima by face. The witness has deposed that at the same time secret informer also met him and he informed him about the present incident after which he informed that he knows Bhima and he is sitting in Chat park, in front of P block, Mangolpuri and can be apprehended if raided. He has deposed that thereafter he requested 45 persons to join the investigations but they refused after which he along with Ct. Bhargav and the secret informer left for Chat park and when they reached at Chat State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 8 of 22 park, there from the gate of Chat park secret informer pointed out one person who was sitting in the park as Bhima on which he along with Ct. Bhargav apprehended the said person and after apprehension Ct. Bhargav also identified the said person and informed him that the said person is Bhima. According to the witness, he thereafter interrogated Bhima and he disclosed his involvement in this incident on which he arrested him vide memo Ex.PW8/C, his personal search was conducted vide memo Ex.PW8/D and his disclosure statement was recorded vide Ex.PW8/E. The witness has deposed that the accused then led them to the spot of the incident and pointed out the same on which he prepared the pointing out memo vide Ex.PW8/F after which he stated that he could get the fire arm with he had fired upon the victim recovered. The witness has deposed that thereafter the accused Bhima took them to Mangolpuri fly over on the road which leads towards Sultanpuri behind the bus stand where there was some bushes from where he got one katta recovered. According to the witness, when he checked the katta and found an empty cartridge case in it. He thereafter prepared the khaka of both the katta and the cartridge case and also measured the same and found the total length of the katta to be 23.5cm, length of the butt was 7.5 cm and barrel was 5cm. The witness has deposed that he also measured the empty cartridge which was found to be having a length of 5cm. According to the witness, on the back side of the cartridge case words 8 KFMM were written. The witness has deposed that he then kept the katta and the State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 9 of 22 cartridge in a plastic case and sealed the same with the tape and then prepared a pullanda and then sealed the same with the seal of UV and thereafter the accused was handed over to Ct Bhargav and sent for medical examination at SGM hospital. According to the witness, after Ct. Bhargav returned at about 10:3010:45 PM, the accused was put lockup after giving food to him.
(19) The witness has deposed that on 11.04.2012 he send the exhibits to FSL Ballistics through Ct. Dharampal and on 17.04.2012 he went to SGM hospital and came to know the victim Nagender Yadav had been discharged on 14.04.2012. The witness has deposed that on 18.04.2012 he went to the house of Nagender Yadav and prepared the site plan at his instance which is Ex.PW8/G and also interrogated him but Nagender Yadav did not disclosed about any eye witness and other person who could have the eye witness of the incident. According to the witness, on 02.05.2012 he send the clothes of the victim to the FSL through Ct. Babu Lal. He has deposed that he received the report of Ballistics in the year 2013, date of which he does not recollect after which he applied for Sanction U/s 39 of Arms Act before deputy Commissioner of Police and after obtaining the sanction U/s 39 of Arms Act which is Ex.PW7/A, he prepared the charge sheet and filed the same in the court. (20) Witness has identified the accused Bhima in the court. He has also identified desi katta and one empty cartridge which asre Ex.P1 and Ex.P2. Court has observed that the desi katta appeared to be new. State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 10 of 22 (21) Addl. PP for the State with due permission of the court has cross examined the witness wherein the witness has admitted that on the DD No. 77B which is Ex.PW3/A which was handed over to him by the duty officer, on which he had prepared the tehrir / rukka. Witness further admits that he had obtained the FSL result which are Ex.PW8/H and Ex.PW8/I and also collected the ballistics report which is Ex.PW8/J. (22) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he had recorded the statement of Nagender at SGM Hospital. According to the witness he asked Nagender as to who was Sohan Singh but he stated that he did not know any Sohan Singh and thereafter he tried to trace Sohan Singh but could not trace him. Witness has deposed that no PCR call had been made in respect of the incident and he had gone to the hospital on the basis of the information given to him by Ct. Vishal. According to the witness, the family of Nagender comprised of his wife but he did not question the wife of Nagender and has voluntarily explained that he could not met her when he went to her residence. The witness has deposed that when he asked Nagender about his wife, he did not tell where she was. According to the witness he tried to question the neighbors with regard to the character of Nagender but no body responded. He has deposed that he did not gave any notice to any neighbours who refused to join the investigations. He admits that Nagender had been killed in an another incident of firing in the same State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 11 of 22 year. He deposed that the said incident is of May, 2013 when he was killed and in respect of his death, an FIR No. 185/12 was registered. Witness admits that in the said case the accused had allegedly killed him on account of his illicit relations and on account of his passing comments on ladies. Witness is unable to tell if Nagender's wife was not residing with him on this account. He admits that the present incident took place in the month of March, 2012 when he survived and in the second incident in the May, 2012 he expired. He further admits that Nagender was killed in May, 2012 at virtually the spot where the present incident had taken place and has voluntarily explained that there is a distance of about 50 feet where the Nagender was killed and where the present incident took place. He further admits that the accused in the present case Bhima had no relations with the accused in the FIR No. 185/12. Witness has also admitted that Bhima and Nagender were together in Sanjay Gandhi Chowki in respect of an incident and has voluntarily explained that he is unable to tell the details because he did not investigate the same. (23) On court question, the witness has admitted that Bhima has a teenaged sister but he did not make any inquiries as regards the relationship between Nagender and Bhima. He also admits that he did not confirm the background of Bhima as to what he was doing at the time of the incident i.e. whether he was a student or working somewhere. He has deposed that Bhima stays in Paschim Vihar whereas the accused in FIR No. 185/12 resides at Mangolpuri. He has further deposed that State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 12 of 22 Bhima does not stay in the area but visits the area because previously he had a house there which they had sold and hence he used to frequent the area. According to the witness, he did not find out when the family of Bhima had sold the house and what was the reason for the same. He has deposed that he did not join any public witness during the time of arrest of Bhima and at the time of his interrogation and has voluntarily explained that nobody agreed to join. He is unable to tell the names and details of the persons who had refused to join. He has deposed that he made no mention of this refusal in the case diaries nor he given any notice to public persons who refused to join the investigation. He admits that the place from where the katta was recovered is an open area adjoining a motorable road. He further admits that there is a bus stop in the area and large number of commuters remain standing there but has denied that some thaile walas were also present. He has further denied that he is deliberately making a false statement and vendors selling biri cigarette, gutkas, fruits, water bottles are present in that area around the bus stand. Witness further denied that the katta and the cartridge case has been planted upon the accused only to work out the case and it is for this reason that he has deliberately not joined any public person. He has admitted that he did not get the scene of crime photographed and that he did not call the crime team to the spot and that he did not lift the finger prints from the katta. The witness has further admitted that he did not check whether the katta was in the working condition or not. He has State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 13 of 22 denied that the deceased did not name the accused in his statement or that the name of the accused was inserted by him of his own to work out a blind case. He further denied that the accused did not make any disclosure statement or that he recorded the same of his own to work out the blind case or that the accused was not arrested in the manner as disclosed by him or that no recovery was affected as claimed by him or that he has prepared and filed the charge sheet in a routine manner without any application of mind.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(24) After completing the prosecution evidence, statement of accused Bhima under Section 313 Cr.PC was recorded wherein the entire incriminating material / evidence against the accused was put to him which he has denied.
(25) According to the accused Bhima, he is innocent and has been falsely implicated in this case. He has stated that he used to reside in the area at the time of incident and had sold his house later. He further stated that Nagender Yadav had an evil eye on his sister and used to tease her. According to the accused, he himself, his sister and his family member had objected to his behaviour and on one occasion had abused him and even slapped him on which he became inimical towards him and hence falsely took his name and implicated him. The accused has however chose not to lead any defence evidence. State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 14 of 22
FINDINGS (26) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel, considered the testimonies of various witnesses examined by the prosecution and the memorandum of arguments filed on behalf of accused and prosecution. (27) At the very Outset I may observe that the only eye witness to the incident was the victim Nagender Yadav himself, who has expired being killed after hardly two months of this incident. The present FIR was neither registered on the statement of Nagender Yadav nor at an later stage his statement under Section 164 Cr.PC was got recorded from the Ld. MM. Hence, the only statement of sole eye witness / victim is his statement recorded by the Investigating Officer under Section 161 Cr.PC contents of which does not stand established.
(28) Secondly the manner in which the incident had taken place confirms that the victim had received fire arm injury, a fact which is not disputed by the accused. Even otherwise proved by Dr. Brijesh Singh (PW10) vide the MLC Ex.PW10/A conforming that the history was of gun shot injury, which he opined as dangerous.
(29) Thirdly the forensic evidence i.e. Biological and Serological reports Ex.PW8/H and Ex.PW8/I which have been duly proved by Ms. L. Babyto Devi (PW9), show that the clothes belonging to the deceased Nagender Yadav confirmed to be having blood stains of 'B' group which State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 15 of 22 were belonging to the victim. No clothes of the accused which he was allegedly wearing on the date and time of the alleged incident were seized or sent to the FSL to connect the accused with the commission of the offence.
(30) Fourthly the ballistic report Ex.PW8/J also does not help the prosecution in any manner since the firing pin marks and breach face marks present on the fired cartridge case Ex.EC1 were tallied with the test fired cartridge cases Ex.TC1 and TC2 but this cartridge case was the one which was recovered from the country made pistol and not from the spot. It is only natural that in the given circumstances when the cartridge case was present inside the country made pistol so got recovered later, the striation and breach marks would be found to be similar of that of the country made pistol Ex.P1. The perusal of the record shows that as per the case of the prosecution no pieces of the bullet / led was recovered either from the body of the victim or from the spot so as to connect it to the alleged weapon of offence and cartridge case recovered from the country made pistol itself does not help the prosecution in connecting the accused with the alleged offence. (31) Fifthly in so far as the recovery of the country made pistol containing the empty cartridge case is concerned, I may hold that the same does not inspire confidence. The accused is reported to be a resident of the same area where the victim was residing. It is the case of State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 16 of 22 the prosecution that after the arrest of the accused, he had led the police to the bushes situated in the main road leading from Mangolpuri towards Sultanpuri between Bus Stand from where the accused has allegedly got recovered the pistol. It is admitted by the Investigating Officer that the buses and the place from where the allegedly recovery of the pistol was effected by the accused after two to three days of the incident, is a thickly populated area, frequented by many persons, adjoining the main road behind the Bus Stand accessible to general public and hence under the given circumstances the alleged recovery of the fire arm at the instance of the accused appears to be doubtful. The Investigating Officer in his testimony has admitted that the Bus Stand in question is a place which is frequented by many public persons and therefore under the given circumstances it was necessary for the Investigating Officer to have joined public witnesses at the time of recovery of the pistol, which has not been done. He has stated that he had tried to join the public witnesses but none agreed and refused but he (IO) has not given any Notice to such public persons. Assuming that the public persons at the spot refused to join the proceedings, there would have been some refusal memo prepared by the Investigating Officer or this fact would have been mentioned by the IO in the case diaries, which again is not the case. The recovery is from an open area and a place accessible to all and hence the alleged recovery of the country made pistol in the absence of any public witnesses does not inspire confidence.
State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 17 of 22 (32) Sixthly the Investigating Officer has not got the scene of crime photographed or videographed nor he called the Crime Team to the spot of incident. Further, when the country made pistol was allegedly got recovered by the accused, no efforts were made by the Investigating Officer to lift the finger prints before he himself lifted the same. (33) Lastly the case of the prosecution is that the accused had fired upon the victim being aggrieved by the fact that the victim Nagender Yadav had an evil eye on his sister. The motive so alleged has not been investigated at all.
(34) It is an admitted case of the prosecution and also the defence that after the present incident of firing which had taken place on 28.03.2012 wherein Nagender Yadav had received fire arm injury, another incident of firing had taken place on 16.05.2012 (within almost two months) at literally the same spot in which the same Nagender Yadav was shot dead in respect of which FIR No. 185/2012 was registered at Police Station Mangolpuri. The motive so alleged in the said case I am told is also the same (i.e. that deceased Nagender Yadav was having an illicit relation with some women residing in the area and had evil eye on women of the area). An indepth investigations on this aspect was required to be conducted and the possibility of the same person being the author of both the offences cannot be ruled out which aspect has unfortunately not been investigated at all. State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 18 of 22 (35) In so far as the accused Bhima is concerned, he in his statement under Section 313 Cr.PC has stated that Nagender Yadav had an evil eye on his sister and on one occasion he had slapped Nagender on which he became inimical towards him and falsely named him. The possibility of the same cannot be ruled out and equally so is the possibility that after his release, Bhima along with his other associates of the area, had planned the killing of the same Nagender in respect of which FIR No. 185/2012 has been registered. Of course, these are only probabilities and there can be no presumptions or inferences drawn from the same. These are the aspects which required detail investigations but unfortunately have not been investigated at all. Further, the fact that Nagender was brought to the hospital by one Sohan Singh, has not been investigated at all. Who was that Sohan Singh ? Was he an eye witness ? What was the condition of Nagender when Sohan found him ? Was Nagender in a position to speak ? Was Sohan known to Nagender previously ? All these aspects could have only been explained by Sohan Singh who was the best witness who could have provided the answer to the same but unfortunately the Investigating Officer has made no efforts to trace out the said Sohan or bring him to the court and best evidence has been withheld from the court. Therefore, I hold that the prosecution having failed to bring the best evidence on record and the investigation being seriously lacking, the charges against the accused Bhima have not been established beyond reasonable doubt and hence benefit of doubt is State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 19 of 22 liable to be given to the accused Bhima.
FINAL CONCLUSION (36) In the case of Sharad Birdhichand SardavsState of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
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 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 accused.
(37) Applying the above principles of law to the facts of present case, it is evident that the prosecution has not been able to conclusively prove and establish the allegations against the accused Bhima. It is evident that the victim who was the sole eye witness to the incident has State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 20 of 22 not appeared in the court to depose having expired two months later in another incident of firing and there is no other direct evidence. It is further evident that the prosecution has not examined any other witness who could have proved the statement so made by the victim to the police. It is also evident that the alleged recovery of the pistol at the instance of the accused Bhima has not been proved and established there being no independent witness joined by the Investigating Officer. Further, the prosecution has not been able to prove and establish the aspect of Nagender Yadav having an evil eye on the sister of accused Bhima on account of which Bhima had slapped Nagender on which Nagender Yadav became inimical towards Bhima. Further, the fact that Nagender was brought to the hospital by one Sohan Singh, has not been investigated at all. Further, no investigations have been conducted by the Investigating Officer with regard to the identity of the said Sohan Singh; if he was an eye witness; what was the condition of Nagender when Sohan found him; was Nagender in a position to speak; was Sohan known to Nagender previously, etc. The said Sohan Singh was the best witness who could have provided the answer of all these aspects but unfortunately the Investigating Officer has made no efforts to trace out the said Sohan or bring him to the court and best evidence has been withheld from the court.
(38) In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively State Vs. Bhima, FIR No. 114/2012, PS : Mangolpuri Page 21 of 22 established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. The material brought on record by the prosecution is insufficient to hold that the accused is guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to see, while finding the guilty of an accused, particularly in cases based on circumstances evidence.
(39) In view of my above discussion, I hereby hold that the prosecution has miserably failed to bring home the charges against the accused Bhima and therefore the accused Bhima is hereby acquitted of the charges under Sections 307 Indian Penal Code and under Section 25/27/54/59 Arms Act.
(40) The accused Bhima is on bail. His surety be discharged as per rules. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 20.08.2014 ASJ (NW)II: ROHINI
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