Delhi District Court
36.In Case Titled Gambhir vs . State Air 1982 Sc 1157 It Has Been ... on 21 May, 2009
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:FTC:
R.NO.272:TIS HAZARI COURTS:DELHI
SC NO. 78/2009
FIR NO:67/02
PS TIMAR PUR
U/s 302/201/34 IPC
JUDGMENT
1 Sl. No. of the Case SC NO: 78/2009
2 Date of Committal to Sessions 10/05/02
3 Received by this court on transfer 22.4.09
4 Name of the complainant SI Gajender Kumar
5 Date of commission of offence 23.1.2002
6 Name of accused, parentage and 1. Bhagat Singh S/o Chand Kiran R/o address Gali No.1, Harijan Basti, Burari, Delhi
2. Ganga Parsad S/o Lilawat R/o Gali No.1, Harijan Basti Burari, Delhi 7 Offence complained of 302/201/34 IPC 8 Plea of guilt Pleaded not guilty 9 Final order Acquitted 10 Date on which order reserved 20.5.09 11 Date on which order announced 21.5.09 BRIEF REASONS FOR DECISION
1. On 14.2.2002 upon receipt of DD No.23 at PP Burari , SI Gajender Kumar alongwith HC Umed Pal and Ct. Naresh reached Pokhar , Yamuna Khadar near A Block Baba Colony, Pusta Burari. There they found decomposed body of one male boy aged around 18-20 yrs in water . The body was got photographed and was taken out . It was found tied with yellow nylon rope with deep cut mark on the neck , left eye and forehead. Body was identified by Sandeep and Pardeep as that of their cousin Omparkash @ Sonu. The body was apparently thrown in to the water after tying it with stone to destroy evidence. Ruqqa was sent and FIR U/s 302/201 IPC was registered. Further investigation was taken up by Inspector R.K. Rathi , SHO of PS Timar Pur, 174 Cr.P.C proceedings was carried out, site plan was prepared and exhibits viz. rope, stone, chappal and pieces of papers were seized . Statements of witnesses were recorded and body was sent for post mortem.
2. During the course of investigation , mother of deceased Om Parkash @ Sonu namely Omwati and step mother Kailashwati suspected involvement of Bhagat Singh and his family in the killing of their son. It was revealed that on the evening of 23.1.2002 at around 7.00-7.15 PM Sonu was last seen with Ganga Parsad by one Chet Ram and from that time onwards Sonu was missing. On 16.2.2002 suspects Bhagat Singh and Ganga Parsad were interrogated and arrested . They both purportedly gave their separate disclosure statements indicating that they had strong objection to love affair which Sonu had with younger sister of Bhagat Singh namely Lata who was a student of 7th standard. It was disclosed by them that on 23.1.2002 , they managed to call Sonu at Yamuna Pusta and jointly slit the throat of Sonu with the help of a razor procured by Ganga Parsad and thereafter tied body after putting stone in his jacket and threw it in the water.
3. They pointed out the place where murder was committed. Blood stains were found and the place was got photographed . Bhagat Singh and Ganga Parsad got recovered one hawai chappal and one leather belt allegedly belonging to deceased from near the spot from the bushes. They also pointed out stones at the spot which were found having blood stains. Accused Bhagat Singh got recovered one grey colour pant and red colour T-shirt which even though were washed, were found having blood stains. He also got recovered a bundle of plastic rope form his house which he purportedly used to tie body of Sonu. Similarly accused Ganga Parsad also got recovered his T-shirt and a pant which even though were washed but still had blood stains on it. Seized articles were sent for forensic examination . Services of a local diver was pressed in to search for weapon of offence i.e. Razor and on 16.2.2002 itself with the help of diver Abdul Sattar , a razor has been shown recovered. Post mortem report was collected. FSL report was also placed on record during the course of trial.
4. After conclusion of investigation charge sheet U/s 302/201/34 IPC was filed against accused Bhagat Singh and Ganga Prasad. After compliance of Section 207 Cr. P.C. Charge sheet was committed to Sessions. During the course of trial prosecution examined 26 witnesses in all. After conclusion of PE statement of accused was recorded in which they pleaded innocence and claimed that they have been falsely implicated in this case. They however did not lead any evidence in their defence.
5. I have arguments of Ld. APP Sh. Irfan Ahmed for State and LD. Defence Counsel Sh. R.A. Bhatt for accused Bhagat Singh and Sh.S.C. Bhutton for accused Ganga Prasad. I have also gone through the case file.
6. At the onset it would be appropriate if the evidence brought by the prosecution is briefly glanced.
7. First witness examine by the prosecution is PW-1 Sandeep. He is cousin of deceased Sonu and joined the proceedings on 14.02.02 while identifying the dead body. He proved the seizure memo of articles related from the spot namely stone, rope, DTC Challan and slipper as Ex. PW 1/A . He proved the statement identifying the dead body in the inquest proceedings as Ex. PW 1/B. He identified the slipper as Ex.P-1, piece of rope as Ex. P-2, Stone as Ex. P-3, clothes of Sonu as Ex. P-4 & DTC Challan paper as Ex. P-5. In his cross examination he stated that he was not aware as to what Sonu was wearing when he left the house. As per him police obtained his signatures on the documents on the next day at Police Post. He conceded that police did not request any body present at the spot for the investigation.
8. PW-2 is Pradeep another cousin of deceased Sonu. He also joined the proceedings at spot and identified the dead body vide statement as Ex. PW 2/A . He deposed that left foot Relaxo Brand Chappal was also found at the spot apart from other items. He deposed on the lines ofPW1 and identified the articles. Spot was got photographed by the police in his presence.
9. PW-3 is Constable Jeet Singh , Motorcycle Rider who took spl. Report to Ilaka MM and Sr. Police Officers.
10.PW-4 is Prakash Chand , uncle of deceased Sonu . He identified both the accused as his neighbour . He claimed that relation between family of Chatar Pal and the accused persons were strained on account of raising of stair in the gali but later the matter was compromised. He claimed that Sonu went missing on 23.1.2002 and matter was reported with police on 25.1.2002. As par him Bhagat Singh also disappeared during that period . He conceded that he was party in the civil litigation between family of accused Bhagat Singh and his brother Chattar Singh qua stair case in gali and also that this case ended about 8-10 years ago.
11.PW5 is Ashu , a photographer . His services were used for getting the spot photographed. He proved the print out as Ex. PW5/A1 to A13 and its negative as Ex. PW5/B1 to B13. Although in his chief he stated that he took photographs on 14.2.2002 but in his cross examination he stated that he might have taken photos on 14.2.2002 and 15.2.2002. He conceded that in photo Ex. PW5/A7 , the chappal visible is that of right foot .
12.PW6 is Chander Pal step father of deceased Sonu . He identified the accused as neighbour and also that he had a civil litigation with family of Bhagat Singh which later on ended in compromise. As per him Sonu left house on 23.1.2002 at about 7.00 PM on his asking to get some dalsave (eatable namkeen) , but did not return. He stated that when Sonu was missing, Bhagat Singh was also not present at his house for 3-4 days. He informed the police about the enmity with family of accused , after the body of Sonu was found. He joined the proceedings after the arrest of the accused at the spot . As per him the right foot chappal of Sonu was recovered from bushes near the spot on 16.2.2002 apart from one belt . He also stated that Ustra was also recovered from the pointing out of accused from pond . He proved disclosure statement of Bhagat Singh Ex. PW6/A, disclosure of Ganga Parsad Ex. PW6/B, joint seizure memo prepared on the pointing out of both accused qua blood stained stones Ex. PW6/C , seizure memo of right foot chappal and leather belt Ex. PW6/D. Ex. PW6/E is seizure of red shirt and a grey pant apart from yellow plastic rope on the pointing out of accused Bhagat Singh from his house. Ex. PW6/F is T-shirt and Pant seized from the house of accused Ganga Parsad. He proved sketch of ustara Ex. PW6/G and its seizure memo Ex. PW6/H, admittedly both this documents do not bear signature of either of the accused. He identified bundle of rope as Ex. P6, razor Ex. P7, and belt Ex. P8 . He identified right foot slipper Ex. P9 and two pants Ex. P10 and P11. In his cross he conceded that he did not suspect anybody in the missing report lodged by him. He stated that the dalsev which was supposed to be brought by Sonu was actually brought by one Kalia @ Kala, a boy who lived nearby his house, and who said that Sonu had instructed to deliver it. Admittedly Kala is not cited as a witness. In his cross examination he further stated that the right foot chappal allegedly seized from the spot was brought by Bhagat Singh while the belt was brought by Ganga Prasad.
13.PW-7 is Constable Sanjay, duty officer at a police picket on pushta. As per him he was told about sighting of the dead body by some ladies at around 2:00 PM on 14.02.02 and as per him the body he saw the body wearing leather jacket, black pant and black shoes.
14.PW-8 is SI Rajiv Shah he was assigned the missing report of Sonu dated 25.01.02.
15.PW-9 is Constable Shaji Mohan, Rojnamcha Munshi of PS Burari. He received the message from Constable Sanjay qua sighting of dead body vide DD No.23 . He proved its copy as Ex. PW 9/A. He also proved one another DD No. 35 in his register as Ex. PW 9/DA as per which accused Bhagat Singh and one Mohd. Chand were joined in investigation of this case by SI Gajender Singh.
16.PW-10 is Constable Naresh Kumar. He reached the spot with the police team led by SI Gajender Singh. He said that one single chappal of blue colour was found floating. He deposed on the lines of police story and proved the seizure memo of viscera, blood stained clothes of deceased as Ex. PW 10/A.
17.PW-11 is Constable Manbir Singh who took 16 sealed parcels from MHCM Timar Pur to FSL Malviya Nagar. Out of which 15 were deposited there and one containing viscera was brought back.
18.PW-12 is Constable Girdhar. He deposited the vicra box with FSL Malviya Nagar after obtaining it from MHCM Timar Pur.
19.PW-13 is ASI Mohan Pratap. He was duty officer of PS Timar Pur on 14.02.02. He proved the rukka sent by HC Gajender as Ex.PW 13/A , Copy of FIR registered as Ex. PW 13/B and copies of DD entries No. 22-A, 23-A, 26-A as Ex. PW 13/C to E respectively.
20.PW-14 is HC Hari Prasad MHCM at PS Timar Pur. As per him on 16.02.02 SHO Inspector R.K. Rathi deposited 16 sealed parcels with him which were seized as per 7 different seizure memos. He proved the relevant entry of Mal Khana register as Ex. PW 14/A. These exhibits were sent to FSL Malviya Nagar on 14.03.02 while copy of road certificate as Ex. PW 14/B.
21.PW-15 is Chet Ram. He is said to be witness of last seen. As per him on 23.01.02 at 7:15 PM he saw Sonu standing in Gali alongwith one Ganga. This witness simply take the name of accused but did not identify the accused. He rather wrongly identified receipt of handing over dead body dated 15.02.02 as the one bearing signatures at point A even though those signature belongs to PW-6 Chhatar Pal.
22.PW-16 is Subhash , the barber shop owner from whom the razor was allegedly procured by accused Ganga. This witness did not support the prosecution case. He rather stated that when he was called by the police and asked to identify the razor he told them that he did not identify the razor. He even denied the suggestion of Ld. APP that accused Ganga ever borrowed the razor from him.
23.PW-17 is Omvati mother of deceased Sonu. As per her Sonu left the house on 23.01.02 and did not return back. She claimed that Sonu had illicit relations with sister of accused Bhagat Singh namely Lata.
24.PW-18 is Abdul Starr professional driver who services, as per challan, were pressed in for searching the weapon of offence i.e. razor. In his deposition although he conceded that he had tried to search the weapon with four five other boys with him on the asking of police but claimed that despite their best efforts nothing could be found. As per him he was asked to put his thumb impression on several blanks papers which as now Ex. as Pw 6/A to 6/G. He did not identify the weapon of offence by giving a reasoning that nothing was recovered.
25.PW-19 is Inspector R.K. Rathi. He was SHO PS Burari on 14.02.02. He narrated the entire sequence of events right from the sighting of the dead body till filing of challan. He proved the inquest papers of Sonu as Ex. Pw 19/B, post mortem applications as Ex. PW 19/C to E, additional photographs taken at spot as Ex. PW 19/B9 to B14 and the negatives as Ex. Pw 19/b15 to 21. He proved arrest memos of Ganga as Ex. Pw 19/F and G and while personal search memos as Ex. Pw 19/H to I respectively. He proved site plan prepared on 14.02.02 as Ex. Pw 19/J. Ex. Pw 19/K is memo of handing over of dead body. He proved the FSL report as Ex. PW 19/L. He identified the case property in the court. In his cross he denied the suggestion that accused Bhagat joined the investigation even though DD No.29 was shown to him .
26.PW-20 is Tirth Lal draftsman. He proved scaled site plan as Ex. Pw 20/A.
27.PW-21 is Kailasho maternal aunt of deceased Sonu. She deposed on the lines of her sister PW17 OM Vati.
28.PW-22 is Constable Bal Bir Singh. He posted as munshi at PP Burari and had reported the missing DD No. 22 qua missing of Sonu same could not be proved on record owing to destruction of record of DCP Concern as Ex. PW 22/A.
29.PW-23 is SI Ved Prakash. He joined the investigation with SHO Burari on 16.02.02 and deposed on the lines of SHO PW-18.
30.PW-24 is HC Umed Pal who reached the spot on 14.02.02 after receipt of sighting of dead body. He got the FIR Register on the asking of SI Devender. He identified the case property.
31.PW-25 is Dr. Sarvesh Tondon who conducted the post mortum of dead body. He proved his PM report as Ex. Pw 25/A. He find the cause of death anti mortem sharp injury on the neck and other parts of body.
32.PW-26 is Dr. Kavita Goel, Scientific expert of FSL Malviya Nagar. She proved chemical examination report as Ex. PW -26/A.
33. The three basic ingredients U/s 302 runs as under:
Ingredients of offence:- The essential ingredients of the offence under sec. 302 are as follows:-
1. Death of a human was being caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done-
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
34. As regards the first ingredient qua death of Om Prakash @ Sonu is concerned prosecution has brought on record ocular as well as documentary evidence. PW-1 Snadeep and PW-2 Pardeep, both relatives of deceased Sonu, were amongst the first people who reached the spot where the body was found. They identified the dead body, then and there, to the that of Sonu vide separate statements recorded during inquest Ex. PW 1/B and Ex. PW 2/A. Even the photographs Ex. PW 5/A1 to A13 shows that probably owing to the fact that it was winter time and the body was in the water, the facial features are apparently decipherable and identifiable. The clothes which were found on the body were also identified not only by PW-1 and PW-2 at the spot as well as in the court as Ex. P-4 collectively. The entire inquest proceedings, the post mortem report and containing physical particulars as well as details of clothes duly matched with the missing report of the FIR. Although defence took a plea that the body was not in a position of being identified but in the facts and circumstances of this case it is evident that the body was correctly identified and also that it belonged to deceased Sonu.
35. As regards the second and third ingredient, it is admitted case of the prosecution that their case is solely based on circumstantial evidence and that they do not have any eye witness of the alleged incident. Before assessing and appreciating the circumstantial evidence brought by the prosecution on record it would be appropriate if the landmark judgments of the apex court are glanced in this case. Guidelines of the trial court on assessing of evidence in murder cases based on circumstantial evidence.
36.In case titled Gambhir Vs. State AIR 1982 SC 1157 it has been observed by Hon'ble Supreme Court that :
"The law regarding circumstantial evidence is well settled. When a case rests on circumstantial evidence it must satisfy three tests Viz. (1) circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, (2) those circumstances should be of definite nature and tendency unerringly pointing towards guilt of the accused and (3) the circumstances taken cumulatively should form a chain so complete in itself that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."
37.In case titled Ramreddy Rajshekhar Reddy (2006) 3 SCALE 452 it has been observed that :
It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances can not be on any other hypothesis. It is also well settled that suspicion, however grave may be, can not be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.
38.The circumstantial evidence brought by the prosecution can be summarised under following heads:
(i) Motive
(ii) Last Seen
(iii) recovery of weapon
(iv) recovery of slipper and belt of deceased
(v) recovery of clothes of accused
(vi) recovery of bundle of rope
(vii) Disappearance of accused Bhagat Singh .
39. Now I shall endeavour of assess the evidence in detail.
40.Motive: Qua motive prosecution has examined PW-4 Prakash Chand, PW-6 Chattar Pal, PW-17 Om Vati and PW-21 Kailasho. Admittedly, in the initial missing report Ex. PW6/DA PW-6 Chander Pal did not suspect anybody and as such there was no question of assigning any motive to any person. Subsequently, after the registration of FIR in hand , upon sighting of the body, in his statement given to the police, for the first time he shared with the police that he had dispute with father of Bhagat Singh namely Chand Kiran regarding raising of stairs in the gali. Similar statement was given to the police by Kailasho. However in his deposition in the court as PW-6 he stated that a civil suit was litigated qua the dispute of stairs but the same ended in a compromise. Throwing more light on this PW-4 stated that the civil suit was filed by Chand Kiran and also that this dispute was 8-10 years old which ended in a compromise. Since this alleged motive was a decade old, interestingly after the accused were caught a police tried to give totally new angle to the motive by mentioning in the disclosure statements of the accused that deceased Sonu had illicit relations with Lata, sister of accused Bhagat Singh. This story does not find any mention in the statements of any witness given to the police but surprisingly , while improving upon their 161 Cr. P.C statements Pw-17 Om Vati and PW-21 Kailasho refers to this illicit relation story even though PW-4 Prakash Chand and Pw-6 Chattar Pal are totally silent over the same. This means the prosecution case has come up with contradictory versions qua motive. Neither any documentary proof qua decade old litigation qua staircase was placed on record nor Lata was examined or cited as a witness. The illicit relation theory is after thought and produced in disclosure statement of accused belatedly which is not supported by any of the witness in their statement given to the police. As regard the civil dispute of the stair case admittedly the civil suit was filed by Chet Ram father of the accused which ended up in a compromise and this 10 years old dispute, in my considered view, does not offer a motive enough to escalate tempers so high so as to lead a murder. Admittedly no motive has been assigned to accused Ganga Prasad. Owing to the above inherent contradictions in proving the motive on record , it can be safely concluded that prosecution has not been able to assign a cogent and clear motive to either of the accused.
41.In case titled Pandran Khadia Vs. State of Orissa 1992 Crl. LJ 762, it has been held by Hon'ble High Court that :
Absence of motive is of great importance in circumstantial evidence and it should be regraded as a circumstance in favour of the accused. Absence of motive would weigh in favour of the accused when the two circumstantial evidence are disbelieved.
42.Last Seen: As regards last seen, the sole witness examined by the prosecution is PW-15 Chet Ram father of the accused who is said to have seen accused Ganga with deceased Sonu on 23.01.02 at 7:15 PM. In his deposition in the Court the witness has simply uttered the name " Ganga" and has not identified accused Ganga Prasad present in the Court as the same person who he saw with deceased Sonu. Moreover, even if the word Ganga is regarded as a referrence to accused Ganga Prasad, as per PW-6, who is complianant and step father of deceased Sonu, he had sent Sonu to bring Dal Sev (eatable Namkeen) for him but Sonu sent the Dal Sev through one boy named Kalia @ Kalu who lives in the neighbourhood and who as per PW-6 was asked by Sonu to deliver the Dal Sev to his father . Despite this, prosecution did not examine Kala as a witness as he could have thrown light if deceased Sonu was present was with accused Ganga Prasad. As per PW-6 Sonu told Kalia that he is going somewhere. Despite this being last news of Sonu with his PW-6 father and Kalia being the last known person who interacted with Sonu surprisingly PW-6 admittedly did not share either of the information with the police . Even otherwise last seen evidence is inherently a very weak piece of circumstantial evidence and much cannot be read into it. The credibility of the witness is further eroded from the fact that in his cross examination he identified signatures of PW-6 Chattar Pal available on handing over memo of Ex. PW19/K as his own signatures. This document contain signature of chattal Pal in English but were still identified by Pw-6 Chattal Pal as his signatures even though he claims that he signs in Hindi.
43.In case titled Lakhan Pal Vs. State AIR 1979 SC 1620 Hon'ble Supreme Court observed :
"Similarly the mere fact that accused was last seen together with the deceased does not by itself conclusively prove the offence of murder."
In case titled Gurnam Singh Vs. State AIR 1998 SC 2673 Hon'ble Supreme Court observed :
"the mere circumstance that accused was last seen in the company of the missing person , without anything more , is not sufficient to form basis of conviction ."
44.Weapon of offence: As per the police case the weapon of offence is a razor which was allegedly procured by accused Ganga Prasad from Pw-16 Subhash. In his deposition in the Court PW-16 categorically stated that he did not give any razor to accused Ganga Prasad ever. As per him even though during investigation he was called to the police station and was shown a razor but he told the police that the razor does not belong to him. This practice of police in showing recovered articles to witness in police station in unsealed condition is depreciated. In fitness of things they should have got a proper TIP conducted U/s 9 of Evidence Act before a competent Metropolitan Magistrate. As such prosecution has failed in proving on record in circumstances qua procurement of weapon of offence.
45. As regard the recovery part of the same, the weapon is shown to have recovered from a pond with the help of a diver PW-18 Abdul Sattar. In his deposition in the court PW-18 Abdul Sattar said that he alongwith his four-five boys searched the entire pond on the direction of the police but nothing was recovered from there despite sustained attempts. As per him, he was thereafter asked by the police to put his thumb impression on several blank papers. These documents Ex. PW6/A to G are shown and record are recovery memos and sketch of the razor. Even though police had pressed in services of a photographer on 16.02.02 when the razor is shown to have recovered and photographs of PW-18,making searches in the pond are available, but absence of any photo of the same time of recovery of razor indicates that it has been subsequently introduced into the story. Moreover, even though seizure memo Ex. PW 6/H claims that razor was sealed at the spot but PW-16 has categorically stated that he was shown a razor in the police station. Also admittedly, police did not send the allegedly recovered razor to the concerned Doctor who took post mortem namely PW-25 Dr. Sarvesh Tondon for opinion to ascertain if the injuries found on the body were possible with the same or not. Moreover, even though the razor is shown to be recovered on the pointing out of accused its seizure memo does not contain the signatures of either of the accused. Even though both the accused were in police custody and were available at the spot on 16.02.02. This further add strength to the plea of the defence that the razor was planted upon the accused persons. Moreover, admittedly no blood stain was found on the razor .
46.In case titled State Vs. Mahender Singh AIR 1953 SC 415 Hon'ble Supreme Court held :
"Mere recovery of weapon by itself is no proof that it is the weapon of offence. It can not be regarded as an incriminating material against the accused when the alleged weapon has not been connected with the incident. It is important to connect the injury of the weapon before the guilt of the accused can be brought home.''
47.Recovery of slipper and belt of deceased: One of the main plank circumstance which prosecution is relying to prove the charge of murder against both the accused is joint recovery memo qua a slipper and a belt allegedly belonging to deceased. At the cost of repetition it is observed that body of Sonu was sighted on 14.02.02 and on that day, as per memo Ex. PW 1/A, police had found one left foot slipper (Hawai Chappal Relaxo). The spot was got photographed. Thereafter on 16.02.02 police is shown to have got recovered right foot slipper on the joint pointing out and recovery memos of both the accused from nearby bushes apart from a belt. Perusal of photographs Ex. PW5/A7 also re-exhibited as Ex. PW 19/A7 and its corresponding negative shows that this photo of the dead body was taken on 14.02.02 and there in alongwith the dead body a right foot slipper is lying. This photograph has the capacity of proving nail in the coffin of prosecution case since as per seizure memo it was the left foot slipper which was seized on 14.02.02 and the right foot slipper was shown recovered on 16.02.02 on the pointing out of both the accused, even though same is apparently visible in the photograph dated 14.02.02. This leads to inevitable conclusion that apparently both these slippers were recovered on 14.02.02 itself and one of the slipper was planted upon the accused on a later date to create evidence against them. It would not be out of place to mention here that as per DD No. 20 dated 25.01.02 Ex. PW 6/DA Sonu was reportedly wearing white shoes. Moreover, since it was month of January and Sonu was wearing a jeans pant and leather jacket wearing of chappal appears to be quite improbable. As per PW-7 constable Sandeep the first police official who sighted body of deceased Sonu, the body was not in chappal but was rather wearing shoes and that of black colour.
48. As regards the belt again shown recovered by joint Memo Ex. PW 6/D, close perusal of the photograph shows that the body as was found in the pond was tempered with since in several photographs the pant on the body is tightly buckled but in several photographs it is wide opened upto its zip. This shows that the clothes found on the body were also tempered with before the photographs were taken. The specific opening of pant, buckle and zip indicates to a possibility of belt being removed then and there which was thereafter used for showing it to the record of pointing out of the accused. As such both these recoveries are shrowded with grave suspecion and cannot be regarded as incriminatory evidence against both the accused. Furthermore, the joint recovery memo prepared by the police is a wrong investigational practice. Police resorts to the same so as to show recovery of one articles as incriminatory evidence against two suspects. It is a settled legal preposition that joint recovery memos and pointing out memos looses its evidential value and cannot be relied against the accused in the manner desired by the prosecution.
49.In case B.L. Satish Vs. State of Karnataka AIR 2002 SCW 2755 while dealing with murder case the circumstantial evidence wherein the only circumstance proved against the grand son of the deceased was that he pointed out to the ornaments of his grand mother which were kept in his maternal grand father's house Hon'ble Supreme Court observed:
"that since there was no other circumstance available in the entire breadth and length of the prosecution, the single circumstance of recovery of ornament is hardly sufficient for a Criminal Court to reach to a conclusion that the murder of the grand old lady was committed by her grand son."
50.Recovery of clothes of accused: Police have also shown recovery of clothes belonging to accused Bhagat Singh and Ganga Prasad vide memo Ex. PW6/F and Ex. PW 6/E respectively. Although it was alleged that there were some stains over them but as per the FSL report one of the pant had a human blood but its group could not be in any manner connected with the deceased Sonu. In the absence thereof it looses its significance as a circumstance against the accused.
51.Recovery of bundle of rope : Accused Bhagat Singh is shown to have recovered a plastic bundle of rope similar to the one which was found on the body of the deceased and a FSL report of the rope indicates that it was similar, but this isolated plain circumstance in its own wisdom does not lead anywhere. Moreover, it cannot be ruled out that in rural areas a plastic rope of similar physical parameters are readily available at all the hardware shops.
52.Three-Four days absence of accused Bhagat Singh: One circumstance which prosecution has relied against accused Bhagat Singh that he was absent from his house for three-four days from 23.01.02 since when Sonu went missing. This fact was brought for the first time on record during investigation in 161 Cr. P.C. statement of Pw-6 Chattar Pal. Although no such accusation was made against accused Ganga Prasad but qua accused Bhagat Singh this fact was brought to the notice of the police for the first time after about 3 weeks. In the initial police report Ex. PW 6/DA dated 25.01.02 there is no mention of the same. In his statement accused Bhagat Singh had denied that he was ever absent from his house. Owing to the delay in reporting the circumstance to the police , I do not see it as a highly credible incriminatory evidence. In this regard the alleged motive of decade old civil suit can work even otherwise and lead to making of false accusations against the suspects.
53.During the course of final arguments one aspect of this case heavily relied by the defence, and rightly so, is that even though certain exhibits were allegedly seized on 14.02.02 , but they were not deposited with MHCM for two days upto 16.02.02 without any explanation. This blunder on the part of investigators of keeping the allegedly seized articles with them further strengthens and rather proves the plea of the defence that the articles were planted upon the accused, as detailed supra qua the blunder committed in showing recovery of slippers. The Mal Khana Register Ex. PW 14/A proved by PW-14 HC Hari Prasad MHCM shows that all the articles which were seized on 14.02.02 were received by him only on 16.02.02. It would be pertinent to mention here that the seal after use on 14.02.02 was handed over to SI Ganjender instead of public persons available at the spot .
54.Furthermore, the Exhibits were not sent to FSL around month which too raises the suspicion and prospectus of their being tempered. It is a settled legal preposition that Ex which deserves to be forensic examination shall be so sent without any delay. There is no explanation as to why the Ex were retained in the malkhana for around a month up to 14.03.02 before they were sent to FSL.
55.In case titled Baldev Singh Vs. State of Punjab 1991 SCC (cr.) 61 it has been observed by Hon'ble Supreme Court that :
" In a case where pistol and cartridges were sent after a delay of about 10 days, such delay in sending the crime articles to the lab creates doubt about their connection with the crime."
In case titled Ten Singh Vs. State 1996 (1) RCR 343 it has been observed-
''Inordinate delay in sending sealed parcel to Forensic Science Lab creates suspicion and throws doubt on the bonafides of the investigation.''
56.The above detailed discussion shows that prosecution has not been able to prove the entire chain of circumstances against both the accused through which they intended to prove the charge of murder . Even the circumstances relied are shrouded with suspicion and overdoing and are not at all believeworthy. The evidence is not at all sufficient to make out the case of conviction in murder trial.
57. It is again a settled legal preposition when the prosecution does not come up with true story and its evidence is shrouded with suspicion and its failed to prove the charge against the accused beyond the shadow of doubt, the benefit of doubt shall always go to the accused.
58.In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words , the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided.'' In case titled Sharad Birdhichand Sarda AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that :
"Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by circumstantial evidence."
In case titled Manzoor Vs. State of U.P. (1982) 2 SCC 72 while dealing with the acquittal of accused in benefit of doubts it has been observed by Hon'ble Supreme Court that :
"Prosecution failing to prove the guilt of accused satisfactorily beyond all reasonable doubt-Hence, the accused must be acquitted."
59.In view of the above discussion and in the light of case law I have absolutely no hesitation in concluding that prosecution has miserably failed to prove its case against either of the accused beyond shadow of doubt. Granting the benefit of doubt to both the accused namely Bhagat Singh and Ganga Prasad, they are both acquitted of charge framed against them U/s 302/201/34 IPC. They be released from custody if not required in any another case.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 21.5.09 ( SURINDER S. RATHI ) ADDL. SESSIONS JUDGE FAST TRACK COURTS DELHI