Delhi District Court
St. vs . Mohd. Islam, Mohd. Kasim & Shyam Sunder on 13 July, 2015
IN THE COURT OF SHRI SANDEEP YADAV, ADDITIONAL
SESSIONS JUDGE3, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
SC No.83/14
ID No. 02406R0099572011
FIR No. 25/11
PS. Vasant Kunj (South)
U/s. 302/34 IPC & 25/54/59 Arms Act
State
Vs.
1. Mohd. Islam
S/o. Sh. Chhote Mistri
R/o. Kasba Sitapur, Tehsil Bisholi
PS Wazirganj, Distt. Badhaun
U.P.
2. Mohd. Kasim
S/o. Mohd Shabir
R/o. Mohalla Nawada,
Kasba & Tehsil Sheshwan,
PS Sheshwan, Distt. Badhaun
U.P.
3. Shyam Sunder
S/o. Late Sh. Gaya Prasad Yadav
R/o. Vill. Keshopur
FIR No.25/11 1/38
St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder
Tehsil Sultanpur, PS Jamo
Distt. Sultanpur
U.P. .... Accused
Date of Institution : 22.04.2011
Final arguments heard on : 06.06.2015
Judgment pronounced on : 13.07.2015
Final Order : Acquitted
JUDGMENT
Prosecution version unfolded during trial may be briefly noted down as under :
1. On 21.01.2011 at about 3/4 pm, PW1 Ct. Neeraj was passing through ridge area of Rangpuri Pahari near cremation ground and noticed that a dead body of male person was lying there. There were injury marks on the dead body. Information about the dead body was conveyed to Police Station through DD No. 27A and thereafter, Inspector Ishwar Singh, the then SHO PS Vasant Kunj (South) with SI Rajbir Singh, ASI Ashwani Kumar and Ct. Vinod departed for the place of incident in a government vehicle. Police party found the dead body at a distance of about 1012 steps from the pagdandi (temporary pathway). Blood was lying on the FIR No.25/11 2/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder pagdandi and the dead body was dragged from the pagdandi to a pit. Inspector Ishwar Singh clicked photographs of the spot with his private camera and also called Crime Team at the spot. Efforts were made to identify the dead body. From the left pocket of pant of the dead body, one Nokia mobile phone was recovered and the phone was in switched off mode. Inspector Ishwar Singh switched on the mobile phone and tried to verify the identity of the dead body through recovered mobile phone. Inspector Ishwar Singh through his efforts could make out the name of deceased as Sanjay Yadav s/o. Shri Ramdulare. There were deep injury marks on the neck, on the fingers of both hands, on the left side of chest, stomach and other parts of the dead body. Inspector Ishwar Singh got the FIR registered u/s. 302 IPC and took over the investigation himself. Investigating Officer Inspector Ishwar Singh contacted Shyam Sunder, brotherinlaw of deceased, as well as father of deceased. Father of the deceased told the Investigating Officer Inspector Ishwar Singh that he is sending Shyam Sunder. Inspector Ishwar Singh also contacted Shyam Sunder on phone and Shyam Sunder told the police officials that he is coming but Shyam Sunder did not come and thereafter Shyam Sunder switched off his mobile phone. The dead body was sent to AIIMS. Earth control sample and blood stained earth were lifted from the spot. Wife and FIR No.25/11 3/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder other relatives of deceased were informed of the murder of deceased. Statement of Smt. Resho, wife of deceased Sanjay, was recorded u/s. 161 Cr.PC. Investigating Officer Inspector Ishwar Singh along with other police officials and Rajesh Yadav, brother of deceased, reached house of accused Shyam Sunder at Bakkarwala, Najafgarh and the house of accused Shyam Sunder was found locked. Thereafter, police party reached Rajokari Rajasthan Petrol Pump, NH8, in search of Shyam Sunder.
Accused Shyam Sunder was arrested from Rajokari Bus Stand on the basis of secret information. Country made revolver and other articles were recovered from accused Shyam Sunder which were seized by Investigating Officer Inspector Ishwar Singh. Disclosure statement of accused Shyam Sunder was recorded. Accused Shyam Sunder disclosed that he is married with the sister of deceased Sanjay Yadav and that the financial condition of Sanjay Yadav was very poor. Accused Shyam Sunder further disclosed that he took pity on Sanjay Yadav Yadav and brought him to Delhi and helped him in completing electrician course and also assisted the deceased financially. Accused Shyam Sunder further disclosed that thereafter, Sanjay Yadav started working separately and stopped giving regard to Shyam Sunder and also started fighting with him. Accused Shyam Sunder further disclosed that he along with co FIR No.25/11 4/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder accused Mohd. Islam and Mohd. Kasim hatched a conspiracy to kill Sanjay Yadav. Accused Shyam Sunder further disclosed that he had killed Sanjay Yadav with the help of coaccused Mohd. Islam and Mohd. Kasim. On the basis of disclosure statement of accused Shyam Sunder, accused Mohd. Islam and Mohd. Kasim were arrested from X26, Hauz Khas, New Delhi and their disclosure statements were recorded. In their disclosure statements, all the accused persons disclosed that they can point out the place of incident and that they can get recovered the weapon of offence i.e. knife. Accused Mohd. Kasim disclosed that he can get recover his blood stained pant which he was wearing at the time of crime and accused Mohd. Islam disclosed that he can get recover his blood stained jacket which he was wearing at the time of crime. Thereafter, all the accused persons led the police party to the place of incident and they also pointed out the place where they threw the knife while escaping after committing the crime. All the three accused persons pointed out the knife which was lying in the jungle area. Investigating Officer Inspector Ishwar Singh took the knife into possession, prepared the sketch of the knife and seized the same. Thereafter, accused Mohd. Kasim led the police party to his jhuggi at Rangpuri Pahari, Delhi, he went inside his jhuggi and came back with his blood stained pant and FIR No.25/11 5/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder handed over the same to Investigating Officer. Accused Mohd. Islam then led the police party to his jhuggi at Israil camp, he went inside his jhuggi and came back with a blood stained jacket and handed over the same to Investigating Officer. Thereafter, all the accused persons were brought to the Police Station and case properties were deposited in the malkhana. Accused Mohd. Islam also disclosed that after the crime, his shoes also got blood stains but he washed his shoes. It was also found during investigation that accused Shyam Sunder was driving a car of Ten Travel Company on the day of incident. The said car was produced by Ten Travel Company and same was seized. GPS system was installed in the said car and the details of GPS system were obtained. As per the details of GPS system of transport company, on the day of incident, accused Shyam Sunder took the crew Jai Deep in vehicle no. DL1N 3879 at 6.45 pm to Karol Bagh and returned to Airport at 9.30 pm. As per the GPS chart, the location of accused Shyam Sunder from 8.45 pm to 9.45 pm was at Rajokari forest area which was not in his normal route. Thereafter, relatives of deceased came to Police Station, postmortem on the dead body of deceased was got conducted and the dead body was handed over to the relative of deceased. The countrymade pistol recovered from Shyam Sunder was sent to Ballistic Department, FIR No.25/11 6/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder viscera was sent to Chemistry Department, clothes, knife, blood gauze, were sent to Biology Department of FSL, Rohini. Results from forensic expert were obtained on all exhibits and were filed in the Court. The Doctor in the postmortem report opined that death in this case is shock due to hemorrhage caused by multiple injuries 1,2,3,4,5,6,7,8,9,10 and injuries no. 1,2,3,4 individually or collectively are sufficient to cause death in ordinary course of nature along with other injuries. The knife was sent for subsequent opinion. After completion of investigation, accused Shyam Sunder, Mohd. Islam and Mohd. Kasim were charge sheeted u/s. 302/34 IPC. Accused Shyam Sunder was also charge sheeted u/s. 25/54/59 Arms Act. Accordingly, accused Shyam Sunder, Mohd. Islam and Mohd. Kasim were charged u/s. 302/34 IPC on 14.10.11. Accused Shyam Sunder was separately charged u/s. 25 Arms Act on 14.10.11. All the accused persons pleaded not guilty and claimed trial.
2. Thereafter, trial commenced and prosecution examined 30 witnesses to prove charges against accused persons. Statements of accused persons were recorded under section 313 Cr.PC. Accused persons denied all the incriminating evidence against them. Accused Shyam Sunder denied having any fight/dispute with his brotherinlaw Sanjay Yadav and stated that Sanjay Yadav used to FIR No.25/11 7/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder respect him like his father. Accused Shyam Sunder further stated that he was not having any commercial licence and therefore, could not have been deployed by Motor Transport (GSD) Ground Support Department at Indira Gandhi International Airport in vehicle no. DL1N 3879. Accused Shyam Sunder deposed that he was not deployed at vehicle no. DL1N 3879. Accused Shyam Sunder further deposed during his examination under section 313 Cr.PC that he did not receive any call from Inspector Ishwar Singh through mobile phone of deceased. Accused Shyam Sunder further stated that when he dialed the number of deceased to trace him along with Resho, Ramesh and Sheela while returning from Police Station, Tilak Nagar, the call was picked up by Inspector Ishwar Singh and Inspector Ishwar Singh asked accused Shyam Sunder about his identity, accused Shyam Sunder told him that he is Shyam Sunder and he is the brotherinlaw of deceased Sanjay, Inspector Ishwar Singh asked accused Shyam Sunder to come to PS Vasant Kunj immediately, accused Shyam Sunder received a call from his fatherinlaw Ramdulare and and on the instruction of his fatherinlaw, he did not go to PS Vasant Kunj.
3. Accused Mohd. Islam and Mohd. Kasim deposed that they have been falsely implicated in this case as they had fought with ASI Ashwani Kumar somewhere in NovemberDecember 2010 FIR No.25/11 8/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder with regard to illegal demand of money for unauthorised construction at Isrile camp. Accused Mohd. Islam and Mohd. Kasim further stated that on 22.01.11, ASI Ashwani Kumar along with other police officials visited their houses at 55.30 am to meet them but without meeting, they had left their houses and they again came about 7.30 am with other police officials and met accused Mohd. Islam and Mohd. Kasim in the presence of family members and neighbourers and went away.
4. I have heard learned Additional Public Prosecutor for the State, Mr. Anoop Kumar Gupta, learned counsel for accused Shyam Sunder as well as Mr. Sanjay Kumar, learned counsel for accused Mohd. Islam and Mohd. Kasim at length and considered the rival submissions.
5. Learned Additional Public Prosecutor for the State submitted that charges have been proved against all the accused persons on the basis of circumstantial evidence and therefore, accused persons deserve to be convicted.
6. Mr. Sanjay Kumar, learned counsel for accused Mohd. Islam and Mohd. Kasim as well as Mr. Anoop Kumar Gupta, learned counsel for accused Shyam Sunder referred to the depositions of prosecution witnesses and submitted that in view of grave contradictions and discrepancies therein and lacunae and defects in FIR No.25/11 9/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder the investigation, accused persons deserves to be acquitted.
7. A careful analysis of the entire evidence adduced in this case would show that there was no eye witness in this case and the entire case rests on circumstantial evidence. Principles of law for appreciation of evidence and for reaching a final conclusion in a case based on circumstantial evidence are well settled. In Padala Veera Reddy vs. State of A.P. And Ors. 1989 Supp. (2) SCC 706 it was laid down that in a case of circumstantial evidence, the evidence adduced by the prosecution must satisfy the following conditions:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than those of the guilt of the accused and such FIR No.25/11 10/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
8. In Bhagat Ram Vs. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offence home beyond any reasonable doubt.
9. In C. Chenga Reddy & Ors. Vs. State of A.P. (1996) 10 SCC 193, it is held in para 21 as under: " 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypotheses of the guilt of the accused and totally inconsistent with his innocence".
10. In a recent case reported as 2015 IV AD(SC) Tomaso Bruno & Anr. Vs. State of U.P. Hon'ble Supreme Court held FIR No.25/11 11/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder that : "In every case based upon circumstantial evidence, in this case as well, the question that needs to be determined is whether the circumstances relied upon by the prosecution are proved by reliable and cogent evidence and whether all the links in the chain of circumstance are complete so as to rule out the possibility of innocence of the accused".
In State of U.P. Vs. Ashok Kumar Srivastava, (1992 Crl. LJ 1104), it was laid down that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also laid down that circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. The circumstance relied upon by prosecution against accused persons to prove its case may be enumerated as under :
(i) Deceased Sanjay Yadav was the brotherinlaw of accused Shyam Sunder. Accused Shyam Sunder has assisted the deceased financially and otherwise and thereafter, deceased Sanjay Yadav stopped showing regard or respect to accused Shyam FIR No.25/11 12/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder Sunder.
(ii) On 20.01.11, deceased Sanjay Yadav told PW6 Shamsher and PW9 Resho that he has been called by accused Shyam Sunder to Mahipalpur for some work.
(iii) Accused Shyam Sunder was contacted by the Investigating Officer from the mobile phone of deceased Sanjay Yadav from the spot where dead body was found and was requested to come to the spot but accused Shyam Sunder did not reach the spot despite assurance.
(iv) Accused Shyam Sunder was found missing from his house and his house was found locked when police party alongwith Ramesh Yadav visited his house after commission of crime.
(v) The knife used in the commission of crime was recovered pursuant to disclosure statement of accused Mohd.
Islam, Mohd. Kasim and Shyam Sunder.
(vi) Blood stained clothes of accused Mohd. Islam and Mohd. Kasim have been recovered pursuant to their disclosure statements.
(vii) Accused Shyam Sunder, on the date of incident, was employed at car no. DL1N 3879, deviated from his normal route and went to Rangpuri Pahari and as per the GPS chart took the car FIR No.25/11 13/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder to Rangpuri Pahari.
12. It is mentioned in the charge sheet that deceased Sanjay Yadav was assisted and supported by accused Shyam Sunder, however, after sometime, deceased Sanjay Yadav stopped showing regard to accused Shyam Sunder as accused Shyam Sunder was having illicit relations with sister of deceased and on this issue accused was abused and insulted by family member of deceased. Thereafter, accused Shyam Sunder planned to kill the deceased. This, according to charge sheet, was the motive of accused Shyam Sunder to commit the crime. However, it could not be substantiated during trial that accused Shyam Sunder had illicit relations with the sister of deceased. None of the family members of deceased including his wife Resho i.e. PW9, who came in the witness box, deposed about any illicit relations between accused and sister of deceased Sanjay.
13. Infact, it has not come on record during trial that wife of accused Shyam Sunder was having any sister. Motive is the essential element to be established in a case based on circumstantial evidence. In Tomaso Bruno's case (supra) it was held that where the case is based on circumstantial evidence, proof of motive will be an important corroborative piece of evidence. If motive is indicated and proved, it strengthens the FIR No.25/11 14/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder probability of the commission of the offence.
14. The fact that deceased being brotherinlaw of accused Shyam Sunder stopped giving respect to accused Shyam Sunder, cannot be considered as furnishing sufficient motive to accused Shyam Sunder to kill the deceased. No person kills another person just because the latter stopped respecting the former. In other words, prosecution has miserably failed to prove that accused Shyam Sunder had sufficient motive to kill deceased Sanjay Yadav.
15. PW2 Kovid Karotwan deposed that accused Shyam Sunder was deployed on vehicle no. DL1N 3879 on 20.01.11 and 21.1.11 and referred to voucher Ex. PW2/A and Ex. PW2/B. However, the vouchers Ex. PW2/A and Ex. PW2/B do not mention any vehicle number. PW2 Kovid Karotwan himself deposed that vouchers Ex. PW2/A and Ex. PW2/B showing meter reading, timing of vehicle and the person who use the vehicle. It is the defence of accused Shyam Sunder that he was not having commercial licence to drive a taxi deployed with Air India at the airport. This aspect was not investigated by the Investigating Officer. No efforts were made to search or seize the commercial licence of accused Shyam Sunder. Charge sheet is totally silent on the point whether the commercial licence is required for driving a taxi deployed at Airport. FIR No.25/11 15/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder
16. It is significant to note that there is no witness in the case who has last seen the deceased with accused Shyam Sunder before the murder. Last seen witness is very vital link in the chain of circumstance in a case based on circumstantial evidence. PW6 Shamsher deposed that on 20.01.11, Sanjay Yadav was with him at Pacific Mall, Subhash Nagar, Delhi and remained with him till 5.30 pm. PW6 Shamsher further deposed that deceased left him when he was called by his Jija namely Shyam Sunder for a good job at Mahipalpur and that Sanjay Yadav boarded a bus for going to Mahipalpur. PW9 Smt. Reshu wife of deceased Sanjay Yadav deposed that on 20.01.11, deceased left the house in the morning but did not return till 7 pm and before that PW9 had talked with deceased and deceased told PW9 that he is going to Mahipalpur as he has been called by his Jija i.e., accused Shyam Sunder, for some work. PW9 Smt. Reshu further deposed that she tried to contact the deceased on phone at about 9 pm, the phone was switched off and later she came to know that her husband has been murdered.
17. However, it cannot be inferred from the depositions of PW6 Shamsher and PW9 Smt. Reshu that deceased was last seen by them with accused Shyam Sunder. One does not know whether the deceased actually reached Mahipalpur on 20.01.11. Infact, PW6 FIR No.25/11 16/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder Shamsher deposed in cross examination that he does not know if deceased met accused Shyam Sunder on 20.01.11 or not. Therefore, meeting of deceased with accused Shyam Sunder at Mahipalpur in the evening of 20.01.2011 is in the realm of imagination and was not proved by any direct or indirect evidence.
18. PW12 Satish Sehrawat deposed that he is running the business of providing cars in different companies for transportation by the name of Tens Travels (P) Ltd. and also provides cars for transportation in AirIndia for pick and drop of cocpit crews at IGI Airport, Terminal3. PW12 Satish Sehrawat further deposed that Shyam Sunder was his driver on car no. DL1N 3879 and he was employed in his company on 06.01.11. PW12 Satish Sehrawat further deposed that on 20.01.11, Shyam Sunder had come to duty at 8.30 am and was on duty till 8.30 pm next day and on that night, accused Shyam Sunder had gone to drop a crew from Airport to Karol Bagh but his GPS chart details shows that he had taken the vehicle to RangpuriRajokari Pahari in the night which was not in the route prescribed for the impugned vehicle being driven by accused Shyam Sunder. PW12 Satish Sehrawat further deposed that he provided resume of accused Shyam Sunder PW12/A1, his employment letter Ex. PW12/A2, attendance sheet Ex. PW12/A3, copy of GPS chart as Ex. FIR No.25/11 17/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder PW12/A4, copy of driving licence Ex. PW12/A5. GPS chart Ex. PW12/A4 gives the location of vehicle no. DL1N 3879 at Kusumpur, Delhi between 9.23 pm to 9.28 pm. According to PW29 Investigating Officer Inspector Ishwar Singh, as per GPS print out, location of accused Shyam Sunder with car no. DL1N 3879 was found at the spot. PW29 Inspector Ishwar Singh who is the Investigating Officer of this case deposed that from the photographs filed with the charge sheet, it cannot be made out as to whether the area shown therein is Rangpuri Pahari or not. The area of Kusumpur, Delhi, is different from Rangpuri Rajokari Pahari as referred to by PW12 Satish Sehrawat in his examination in chief.
19. Prosecution has not explained whether the area of Kusumpur, Delhi is same as Rangpuri Rajokari Pahari as deposed by PW12 Satish Sehrawat. Even the place of occurrence could not be established or ascertained in the present case. Prosecution witnesses have deposed that there was no land mark or any other indication of place where the dead body was found is Rangpuri Pahari area.
20. PW12 Satish Sehrawat has not given approximate time when vehicle no. DL1N 3879 was taken by accused Shyam Sunder to Rangpuri Pahari. In voucher Ex. PW12/A, the timeout FIR No.25/11 18/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder mentioned is 6.45 pm and timein is mentioned as 9.30 pm. However, vehicle no. DL1N 3879 is not mentioned is Ex. PW12/A. The vehicle number was not mentioned in Ex. PW12/A3. This document refers to SS1 and SS2. Prosecution has not explained or verified whether the name SS1 refers to accused Shyam Sunder or SS2 refers to accused Shyam Sunder. These are vital missing links in the chain of circumstance which create doubt about the prosecution version and benefit of same has to go to accused persons.
21. Even if, there was some ambiguity in GPS cart Ex.
PW12/A4 about the time by which accused Shyam Sunder deviated from his normal route and the exact area where the vehicle was taken by accused Shyam Sunder while deviating from main route, the Investigating Officer had another opportunity to clear the air in this regard by obtaining the location of mobile phone of accused Shyam Sunder at the time of commission of crime. However, according to PW11 Vishal Gaurav, Nodal Officer, Bharti Airtel, no chart of mobile phone of accused Shyam Sunder was obtained by the police and same was not placed on record. Once mobile phone number of accused Shyam Sunder was ascertained, it was incumbent upon the Investigating Officer to obtain location chart of mobile phone of accused Shyam Sunder so FIR No.25/11 19/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder as to find out the exact location of accused Shyam Sunder himself on the date of incident. If the location of mobile phone of accused Shyam Sunder had been found to be near the place of crime at the relevant time, same could have clinched the issue in favour of prosecution. This is a vital lapse on the part of Investigating Officer. Therefore, an adverse inference is liable to be drawn against prosecution u/s. 114 (g) Indian Evidence Act, that the location chart of mobile phone of accused Shyam Sunder was obtained by the Investigating Officer from the service provider, same would have established the innocence of accused.
22. As per the case of prosecution, accused Mohd. Islam and Mohd. Kasim after being arrested from X26, Hauz Khas, New Delhi, were taken to the place of occurrence where they along with accused Shyam Sunder got recovered the knife used in the commission of crime. It has also come in the depositions of prosecution witnesses that from the place of occurrence, police officials along with accused persons went to the house of accused Mohd. Islam and Mohd. Kasim and recovered their blood stained clothes. In other words, accused persons were not taken to the Police Station for the purpose of interrogation before recovering the knife and blood stained clothes. It is highly impossible that accused persons will get recovered such vital incriminating articles FIR No.25/11 20/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder viz. knife and blood stained clothes, without being properly interrogated by the Investigating Officer in the Police Station. PW29 Investigating Officer Inspector Ishwar Singh deposed in cross examination that he along with other police officials reached X26, Hauz Khas, New Delhi, at about 6 pm and remained there till about 7.30 pm. Investigating Officer Inspector Ishwar Singh prepared arrest memo, personal search memo, recorded disclosure statements of both accused regarding the place where the knife was thrown after the crime and the location of their blood stained clothes. Somuch of work could not be completed within a span of 90 minutes. Therefore, recovery of knife and blood stained clothes pursuant to disclosure statements of accused persons cannot be believed.
23. According to PW28 ASI Ashwani Kumar, involvement of accused Shyam Sunder was revealed by brother of wife of deceased. It is obvious that PW28 ASI Ashwani was referring to Ramesh Yadav. If, the involvement of Shyam Sunder was revealed by Ramesh Yadav, brother of wife of deceased, in that case, Ramesh Yadav was a material witness and statement/deposition of Ramesh Yadav would have definitely assisted the Court in arriving at a just conclusion about the involvement of accused Shyam Sunder. However, statement of Ramesh Yadav was not recorded by FIR No.25/11 21/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder the Investigating Officer nor he was examined as witness by the prosecution. Infact, Ramesh Yadav was with the Investigating Officer and other police officials, when police team reached the house of accused Shyam Sunder at Bakkarwala, Najafgarh. However, Ramesh Yadav was abruptly excluded from the investigation after the house of accused Shyam Sunder was found locked. This sudden and unexplainable exclusion of Ramesh Yadav from the investigation despite he being a material witness raises serious doubt over the entire investigation conducted in this case. In other words, the investigation was neither fair nor effective.
24. Infact, the Investigating Officer Inspector Ishwar Singh in examination in chief does not talk about the role of Ramesh Yadav in the investigation despite the fact that Ramesh Yadav was found at the house of deceased by the Investigating Officer and accompanied the police party to the house of accused.
25. According to PW26 SI Rajesh, the knife was recovered pursuant to the disclosure statement of accused persons and thereafter, blood stained clothes of accused Mohd. Kasim and Mohd. Islam were recovered. However, PW28 ASI Ashwani Kumar deposed that first the blood stained clothes of accused Mohd. Islam and Mohd. Kasim were recovered and knife was recovered subsequently. Therefore, different version were given by FIR No.25/11 22/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder PW26 SI Rajesh and PW28 ASI Ashwani Kumar about sequence of recovery in the present case. PW26 SI Rajesh and PW28 ASI Ashwani Kumar are the material witnesses as they were the part of investigation on various dates and they are contradicting each other on such a vital aspect which weakens the entire prosecution case.
26. As per the prosecution version, accused persons after committing the murder of deceased with knife, threw away the knife while running away from the spot. According to PW26 SI Rajesh place of recovery of knife is at a distance of about 200 yrds from the place where dead body was found. PW28 ASI Ashwani Kumar deposed that place where dead body was found and the place of recovery of knife are within the circumference of 300 yrds. However, according to PW29 Investigating Officer Inspector Ishwar Singh, the distance between these two spots is about 750 meters. Therefore, police officials who were the part of investigation in this case are contradicting each other about the actual distance between the place of recovery of knife and the place where dead body was found. The crime team was called after the dead body was found in ridge area. According to PW29 Investigating Officer Inspector Ishwar Singh, Crime Team reached the spot and inspected the spot thoroughly. According to PW28 FIR No.25/11 23/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder ASI Ashwani Kumar, the Crime Team inspected the spot about 1520 yrds. around the dead body. One fails to understand as to why weapon of offence i.e. the knife, was not detected by the Crime Team while inspecting the area around the place where the dead body was found, despite the fact that place of recovery of knife and the spot, where dead body was found, are not very far away from each other. PW26 SI Rajesh and PW28 ASI Ashwani Kumar deposed that the place of recovery of knife is an open area accessible to all. Therefore, the knife which was lying in an open area could have been easily found or detected by the Crime Team while inspecting the spot or the place where dead body was found. However, the fact remains that the knife was not detected by the Crime Team which makes the recovery of knife highly unbelievable.
27. Accused Mohd. Islam and Mohd. Kasim have been implicated in this case on the basis of recovery of knife and their blood stained clothes pursuant to their disclosure statements. The knife was recovered by the police pursuant to the disclosure statements of all accused persons. Recovery of one knife at the instance of three accused persons is seriously doubtful and fails to inspire the confidence of the Court. Even otherwise, prosecution witnesses have deposed that place from where knife was recovered FIR No.25/11 24/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder is an open place and is accessible to all. According to Section 27 of Indian Evidence Act when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
28. The crucial work occurring in Section 27 of Indian Evidence Act is "discovered". The work "discovered" presupposes that an object or thing is covered or hidden. However, in the present case, the weapon of offence i.e., the knife, was found lying in and around the place accessible to public and therefore, it cannot be said that the said knife was discovered in consequent of information provided by accused persons. Hence, the recovery of knife pursuant to disclosure statements of accused persons does not come within the purview of section 27 of Indian Evidence Act and hence is inadmissible in evidence.
29. In Prem Bahadur Rai Vs. State of Sikkim decided by Hon'ble Sikkim High Court on 04.06.1977, it was held and observed as under :
"There is a long catena of weighty decisions of various FIR No.25/11 25/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder High Courts that these types of joint statements or joint discoveries are not at all admissible against any of the accused persons, unless it can be shown as to who made the first statement leading to the discovery or who made the first discovery. Apart from the question of principle, we are also inclined to agree with the learned Sessions Judge that in view of the absence of any witness whatsoever, at the time of the alleged recovery of exhibit I or making the alleged statement, without any explanation whatsoever for not calling for such witnesses as required by law, the alleged recovery of exhibit I and the evidence of PW5 relating thereto cannot be relied on".
30. In 93 (2001) DLT 681 Shiv Narayan vs. State, it was held and observed in para 24 as under: "As regard the recovery of knife at the instance of accused persons admittedly knife was recovered from an open plot adjacent to the factories. The knife was not buried or concealed under the earth or inside the bushes. Nor it was kept hidden under the wall. The alleged incriminating article as per the prosecution's version was found lying in the open on the ground near the wall on an open plot visible to naked eyes. As per Insp. Kali Ram Malik PW30 there were lights in that plot and even at FIR No.25/11 26/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder night time they could see the knife. The knife was visible because of lights. Therefore, the recovery of the alleged knife from an open space visible to naked eyes not hidden anywhere cannot be said to be a recovery admissible under Section 27 of the Evidence Act. What is admissible under 27 of the Evidence Act is not merely knowledge of the accused regarding the place of concealment of the material object but the fact that the accused himself and concealed it there to the exclusion of the knowledge of others. What is not covered cannot be discovered." The legal proposition laid down in these cases are squarely applicable to the facts of present case.
31. The call details record of telephone calls exchanged between accused Shyam Sunder, Mohd. Islam and Mohd. Kasim were not obtained by the Investigating Officer as accused Mohd. Kasim was not having any mobile and the mobile found recovered from accused Mohd. Islam was stated to not in working condition. If that be so, the Investigating Officer ought to have find out as to how accused Shyam Sunder contacted accused Mohd. Islam and Mohd. Kasim for commission of crime. Since, this was not done by the Investigating Officer, the conspiracy angle in this case could not be established.
FIR No.25/11 27/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder Scientific Evidence
32. Prosecution has relied upon the circumstance that blood stains were found on the clothes of accused Mohd. Islam and Mohd. Kasim. Concrete material, shirt, sweater, pair of shoes, paint, pair of socks, blood gauze, jacket of accused Mohd. Islam and pant of accused Mohd. Kasim, weapon of offence i.e., knife, were sent for examination to FSL, Rohini, by the Investigating Officer in sealed parcels. After biological examination of all these articles, PW30 Dr. Rajender, Deputy Director, Biology, FSL, Rohini, Delhi, gave his report. PW30 deposed that blood was detected on concrete material, shirt, sweater, pair of shoes, pant of accused Mohd. Kasim, pair of socks of deceased, blood gauze, jacket of accused Mohd. Islam and on the weapon of offence i.e., knife. Blood found on the pant of deceased was 'B' group, the blood found on the jacket of accused Mohd. Islam and pant of accused Mohd. Kasim and weapon of offence was also of 'B' group.
33. Numerous people in the world would be having the blood group 'B'. The fact that blood of same group was found on the pant of deceased Sanjay Yadav and on the pant of accused Mohd. Kasim and on the jacket of accused Mohd. Islam, will not conclusively prove that blood on the clothes of accused Mohd. FIR No.25/11 28/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder Islam and Mohd. Kasim was of deceased.
34. In this regard following observations made by Hon'ble Supreme Court in AIR 1979 SC 1949 - Pohalya Motya Valvi Vs. State of Maharashtra are squarely application to the facts of present case :
"The last circumstance relied upon by the High Court is that Dhoti Article 11 put on by the appellant when he was arrested was stained with human blood. Evidence on this point is that there were some small stains of blood of the Dhoti of the appellant. Bloodstains on the dhoti of an agriculturist would hardly provide any incriminating evidence. Even if, it is held proved that there were some small bloodstains on the dhoti of the appellant that by itself would not provide evidence of a conclusive nature against the appellant".
35. In the present case also, accused Mohd. Islam and Mohd. Kasim are carpenters by profession and blood stains on their clothes would hardly provide any incriminating evidence. In his disclosure statement, accused Mohd. Islam stated that his jacket and shoes got blood stains thereon and he has washed his shoes. However, when jacket of accused Mohd. Islam was recovered, it was having blood stains. If, accused Mohd. Islam was intelligent FIR No.25/11 29/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder enough to wash his shoes in order to wipe out blood stains thereon, why would he not wash blood stains on the jacket ?
36. Proper course for the Investigating Officer was to request the expert at FSL for DNA analysis of the blood found on the clothes deceased, on the knife and on the clothes of accused Mohd. Islam and Mohd. Kasim. However, according to PW30 Dr. Rajender, Deputy Director, Biology, FSL, Rohini, who examined the exhibits in this case sent by the Investigating Officer, Investigating Officer Inspector Ishwar Singh has not asked him to conduct DNA test on the exhibits to ascertain whose blood is it. DNA analysis of blood on the clothes of deceased, knife and on the clothes of accused persons could have established with clarity that blood on knife and on the clothes of accused is of the deceased or not. However, since, Investigating Officer Inspector Ishwar Singh did not request for DNA test on the blood stains found on the clothes of deceased, accused and the knife, this issue remains unresolved. FSL report does not give age of the blood on the knife. Hence, no scientific evidence was adduced to connect accused Mohd. Islam and Mohd. Kasim with the crime.
37. It has also come during investigation that blood on the clothes of deceased was preserved on 21.01.11 while the blood on the clothes of accused Mohd. Islam and Mohd. Kasim was FIR No.25/11 30/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder preserved on 22.01.11, i.e., after a gap of one day. However, during examination in FSL, no reaction was found on the blood of clothes of deceased while FSL examination noticed reaction in the blood on the clothes of accused Mohd. Islam and Mohd. Kasim. Therefore, some manipulation in the preservation of blood found on the clothes of deceased and accused Mohd. Islam and Mohd. Kasim cannot be ruled out.
38. Similarly, at the time of recovery of knife, finger prints on the knife were not obtained. Right course for the Investigating Officer Inspector Ishwar Singh was to get finger prints lifted from the knife and compare the same with the finger prints of accused persons so as to find out whether the knife was actually used by them or not. However, this was not done by the Investigating Officer which only shows that the investigation in this case was not conducted in a scientific manner.
39. PW26 SI Rajesh, PW28 ASI Ashwani Kumar and PW29 Investigating Officer Inspector Ishwar Singh, are the police officials who have been closely associated with the entire investigation of this case. However, when the depositions of these three witnesses are analyzed and compared, one finds numerous contradictions and discrepancies, some of them being material, therein. PW26 SI Rajesh deposed that he did not participate in FIR No.25/11 31/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder investigation on 21.01.11. However, PW28 ASI Ashwani Kumar deposed that police team that left Police Station on 21.01.11 comprised of SI Rajesh. Obviously, one of them is not speaking the truth. PW26 SI Rajesh in examination in chief deposed that accused Shyam Sunder arrived at Rajokari Bus Stand at about 1.30 pm or 2 pm. In cross examination, PW26 SI Rajesh deposed that he along with other police officials reached Rajokari Bus Stand at about 3.10 pm. On other hand, PW29 Inspector Ishwar Singh who is the Investigating Officer in this case, deposed that secret information about accused Shyam Sunder was received at 3 pm. These three witnesses have also deposed differently about the positions taken by different police officials after receiving information about accused Shyam Sunder. PW26 SI Rajesh deposed that he took position near bus stand Rajokari, while, PW28 ASI Ashwani Kumar deposed that SI Rajesh took position under the bridge. PW29 Investigating Officer Inspector Ishwar Singh deposed that he and SI Rajesh were standing towards the side of flyover. PW26 Rajesh deposed that one water vendor and one rehdiwala were present near the Bus Stand. While PW29 Investigating Officer Inspector Ishwar Singh deposed that no vendor was available at Rajokari Bus Stand. Therefore, the entire proceedings including arrest of accused Shyam Sunder and FIR No.25/11 32/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder recovery of katta from him at Rajokari comes under the cloud of suspicion.
40. According to PW28 ASI Ashwani Kumar only accused Mohd. Islam and Mohd. Kasim were found at X26, Hauz Khas, New Delhi while PW26 SI Rajesh deposed that 23 persons apart from accused persons were found at X26, Hauz Khas, New Delhi. PW29 Investigating Officer Inspector Ishwar Singh deposed that he did not note down names and addresses of workers present at X26, Hauz Khas, New Delhi, meaning thereby that workers were present at X26, Hauz Khas, New Delhi. PW28 ASI Ashwani Kumar deposed that shoes of accused were deposited in malkhana while PW26 SI Rajesh and PW29 Inspector Ishwar Singh denied recovery of shoes of accused persons. All these are material and vital contradictions which shakes the very foundation of case of prosecution.
41. Defence plea offered by accused Mohd. Islam and Mohd. Kasim is that they had a fight with ASI Ashwani Kumar somewhere in NovemberDecember 2010 with regard to illegal demand of money for unauthorised construction/demolition at Isrile Camp. Accused persons in their statements recorded u/s. 313 Cr.PC stated that due to enmity, they have been falsely implicated in the present case. Accused Mohd. Islam and Mohd. Kasim FIR No.25/11 33/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder further stated that on 22.01.11 ASI Ashwani along with other police officials had visited their house at 55.30 am to meet them but without meeting them, they had left the house and they again came on the same day at 7.30 am with other police officials and met them in the presence of their family members and neighbourers and went away. It has been confirmed by police witnesses that PW28 ASI Ashwani Kumar was the Division Officer of Isrile Camp area. PW28 ASI Ashwani Kumar admitted that he was part of demolition team which demolished the house of accused Mohd. Islam and Mohd. Kasim.
42. PW28 ASI Ashwani Kumar deposed in cross examination that he does not remember what was the colour of clothes of accused Mohd. Islam and Mohd. Kasim when he met them in the morning of 22.01.11. Thus, PW28 ASI Ashwani Kumar admitted that he met accused Mohd. Islam and Mohd. Kasim in the morning of 22.01.11. As per the case of prosecution, the involvement of accused Mohd. Islam and Mohd. Kasim in the present case was disclosed by accused Shyam Sunder at about 4 pm on 22.01.11. Therefore, there was no occasion for ASI Ashwani Kumar to meet accused Mohd. Islam and Mohd. Kasim in the morning on 22.01.11. In other words, PW28 ASI Ashwani Kumar in cross examination supported the defence of accused Mohd. Islam and FIR No.25/11 34/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder Mohd. Kasim that he along with other police officials visited their house twice in the morning of 22.01.11.
43. PW26 SI Rajesh, PW28 ASI Ashwani Kumar and PW29 Investigating Officer Inspector Ishwar Singh submitted that statement of Resho, wife of deceased, was recorded at her house. However, PW9 Resho deposed in cross examination that police recorded her statement in the Police Station on 22.01.11. Therefore, an important public witness, i.e., PW9 Resho, wife of deceased, is speaking against the deposition of Investigating Officer and other police officials. These contradictions in the deposition of PW26 SI Rajesh, PW28 ASI Ashwani Kumar and PW29 Inspector Ishwar Singh on the one hand and deposition of PW9 Resho on the other hand create serious doubt about the entire case of prosecution and benefit of doubt must go to accused persons.
44. There is another vital aspect of the case which should not lost sight of. It has come in the depositions of PW26 SI Rajesh, PW28 ASI Ashwani Kumar and PW29 Inspector Ishwar Singh that public persons were available at the time of arrest of accused Shyam Sunder, at the time of recovery of katta from accused Shyam Sunder, at the time of arrest of accused Mohd. Islam and Mohd. Kasim, at the time of recovery of knife at the instance of all accused persons and at the time of recovery of blood stained FIR No.25/11 35/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder clothes of accused Mohd. Islam and Mohd. Kasim. However, the Investigating Officer made not sincere efforts to include public persons in the investigation at various stages of the investigation mentioned above. The Investigating Officer even failed to note down the names and addresses of persons who refused to join investigation nor did the Investigating Officer gave them any notice in this regard. Infact, very vital public witness namely Ramesh Yadav was excluded from the investigation without any rhyme or reason. After the house of accused Shyam Sunder was found locked, Ramesh Yadav could have been a vital witness to the arrest of accused Shyam Sunder, recovery of katta from accused Shyam Sunder, arrest of accused Mohd. Islam and Mohd. Kasim, recovery of knife at the instance of all accused persons and recovery of blood stained clothes of accused Mohd. Islam and Mohd. Kasim. Exclusion of Ramesh Yadav from the investigation has seriously damaged the case of prosecution.
45. PW28 ASI Ashwani Kumar and PW29 Investigating Officer Inspector Ishwar Singh submitted that no alteration was made in any of the documents prepared during investigation. However, there are overwritings and alterations in the site plan Ex. PW29/F and Ex. PW29/G. These overwritings and alterations have not been explained by the Investigating Officer in FIR No.25/11 36/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder the charge sheet or in his deposition before the Court.
46. No departure or arrival entry of investigation team on any of the dates has been placed on record. Ram Singh, Driver of official vehicle in which Investigating Officer and other police officials left for various places during investigation was not examined. PW29 Investigating Officer Inspector Ishwar Singh deposed that the logbook was filled by the driver on 23.01.11 and PW29 Inspector Ishwar Singh countersigned the same. However, the logbook was not filed with the charge sheet.
47. It is clear from the above discussions that none of the circumstances from which the inference of guilt of the accused was sought to be drawn by the prosecution was proved in this case. There are vital links missing in the chain of circumstances and it could not be proved conclusively that the crime was committed by the accused persons and none else. In other words, the prosecution miserably failed to prove its case against the accused Mohd. Islam, Mohd. Kasim and Shyam Sunder beyond reasonable doubt. Accordingly, accused Mohd. Islam, Mohd. Kasim and Shyam Sunder are acquitted of the charge u/s 302/34 IPC & u/s. 25/54/59 Arms Act.
48. In terms of Section 437A Cr.PC, accused Mohd. Islam, Mohd. Kasim and Shyam Sunder are directed to furnish their FIR No.25/11 37/38 St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder personal bonds and one surety bonds in the sum of Rs. 25,000/ each. Personal bonds and surety bonds are furnished by accused persons. Same have been accepted for a period of six months for their appearance before Hon'ble High Court in event the State wishes to file the appeal challenging the present judgment.
File be consigned to Record Room.
Announced in open Court (Sandeep Yadav)
on 13.07.2015 Additional Sessions Judge3 (South)
Saket Courts, New Delhi
FIR No.25/11 38/38
St. Vs. Mohd. Islam, Mohd. Kasim & Shyam Sunder