Delhi District Court
State vs Arun Kumar on 28 August, 2012
In the court of Sh. Atul Kumar Garg, Additional Sessions
Judge04, South District, Saket Court, New Delhi.
Sessions Case No. 12/10
In the matter of :
State
Versus
1. Arun Kumar
S/o Sh. Sunder Lal,
R/o Vill. Parwana, PS Khanpur,
District Bulandahar, U.P.
2. Deepak Kumar
S/o Sh.Vinod Kumar,
R/o G81, gali no. 7 Pappu Colony,
Ghaziabad, U.P.
3. Dharmender @ Kale
S/o Nanak Chand,
R/o Vill. Karana, PS Khurja,
District Bulandsahar, U.P.
FIR No. : 357/09
under sections. : 302/201/34 IPC
Police Station : Kotla Mubark Pur
Case received on :28.09.2010
Arguments heard on :23.08.2012
Date of decision :28.08.2012
State v. Arun Kumar & Ors. Page No.1/27
J U D G M E N T
1. Standards of proof to convict a person on circumstantial evidence has been couched by the Apex Court in the proposition that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused, when taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else, and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. It needs no reminder that legally established circumstances and not merely anguish of the court can form basis of conviction and more serious the crime the greater should be the care taken to scrutinize the evidence, least suspicion takes place of proof. State v. Arun Kumar & Ors. Page No.2/27
2. Whether the prosecution could establish a complete chain of evidence which is conclusive in nature and consistent with the hypothesis of guilt of the accused and inconsistent with his innocence? For an answer fact gain importance, vide D.D entry no. 3A dt. 26.12.2009 at about 8.10 am police was informed about lying a dead body near Peer Baba Gumbad, East Kidwai Nagar light. The said information was assigned for preliminary inquiry to SI Ramveer Singh. SI Ramveer Singh alongwith Ct. Ajit reached to the spot where he found a dead body of male person aged about 30 years lying near Mast Light The deceased was wearing blue colour jeans and slatey colour Tshirt. Deceased was also wearing white colour shoes. Blood was oozing out from the dead body of the deceased. A blood stained stone was also lying there having hair stuck. The above said information was endorsed by the IO and sent it through Ct. Ajit in the PS for registration of the case. Thereafter, police registered the case. During the course of the investigation, police recorded the statements of the witnesses, collected the evidence ( both oral and documentary) and arrested the accused persons in the present case.
3. Vide order dt. 18.09.2010 all the three accused persons were charged for the offence u/s 302/201/34 IPC. Accused persons pleaded State v. Arun Kumar & Ors. Page No.3/27 not guilty and claimed trial.
4. In order to substantiate the charge prosecution has relied upon as many as twenty eight witnesses namely Smt. Poonam Devi, Yamuna Sharma, Mahesh Ahuja, Sushil Malik, Satya Prakash Gupta, Birju, Dr. Sudhir Gupta, Dr. Raghvendra Kumar, SI Mahesh, Nodal officer, Aircel Ltd., Nodal officer Bharti Airtel Ltd. , Nodal officer Tata Indicom, Record clerk, Rajeev, SI Rambir Singh, SI Suman Kumar, SI Jitender Kumar, SI R.Y Pandey, H.C Sangeet, H.C Nathi Lal, H.C Ramchandra , H.C Rajkumar, H.C Jagdish Chander, MHC(M) Ct. Ajeet, Ct. Mahmood Khan, Ct. Deepak Tiwari and Insp. V. N Jha. Infact, prosecution has examined twenty seven witnesses in all.
5. Prosecution evidence consists of three sets of evidence. First set of evidence consists of the oral testimony of Mahesh, Shishpal Malik, Satya Prakash, Rajiv, Yemuna Sharma, Poonam Sharma examined as PW6, 8, 10, 12, 14 and 15 respectively by the prosecution. The second set of evidence consists of evidence of Dr. Sudhir Ranjan Singh and Dr. Raghvendra Kumar, examined as PW1 and PW4 respectively by the prosecution. The third set of evidence consists of evidence of police officials, who had carried out the investigation in the present State v. Arun Kumar & Ors. Page No.4/27 case.
6. PW11 HC Ram Chander being the duty officer had scribed the FIR and proved the copy of the same as Ex.PW11/A. He also proved the DD entry no.3A as Ex.PW11/B. PW2 SI Mahesh Kumar had prepared the scaled site plan Ex.PW2/A.
7. PW5 Sh. Shishir Malhotra, Nodal Officer Aircel had brought the certified details of mobile no.8802356054 belonging to accused Arun. He has also brought list locations visited by the aforesaid mobile phone number for period 10.12.2009 to 09.03.2010. PW7 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel had brought the certified details of mobile no.9818722783 for period 20.12.2009 to 31.12.2009. He also brought the customer application form of the said mobile number. As as per record the said mobile number was registered in the name of Sushil Malik, resident of 11A, Amrit Nagar, NDSEI. He proved the certified copy of the application with ID proof consisting three pages as Ex.PW7/A.
8. PW9 SI Jitender Kumar as being the Incharge of the mobile crime team, had inspected the scene of crime. He proved the crime State v. Arun Kumar & Ors. Page No.5/27 inspection report as Ex.PW9/A. PW6 Mahesh Ahuja was the photographer by profession. On 26.12.2009, at the instruction of the IO he reached at Peer Baba Gumbad, Kidwai Nagar where a dead body was lying with a lot of blood. He took the photographs of the said dead body as per instructions of the IO. While taking the photographs, he identified the dead body as of one Amit, who used to reside in the government flat in front of his shop. He proved the said photographs as Ex.PW6/A1 to PW6/A21.
9. PW16 Ct. Deepak Tiwari alongwith HC Rajkumar and HC Sangeet had taken the accused Dharmender to AIIMS for his medical examination. Sample of hair and blood were handed over to the IO by HC Raj Kumar after taking the same from the doctor. PW18 HC Mehmood Khan was entrusted two sealed parcels by the MHC(M) for depositing the same in the FSL Rohini vide RC No.3/21 and 4/21. He deposited one sealed parcel with RC no.4/21 at FSL Rohini. He handed over the receipt to the MHC(M) of the deposited parcel. The second parcel with RC No.3/21 could not be deposited due to some technical defect and he handed over the same to the MHC(M). PW20 HC Vijay Singh has proved the entries in respect of deposit of case property in the Malkhana. It is mentioned by him in register no.19. He has proved State v. Arun Kumar & Ors. Page No.6/27 the said entries as Ex.PW20/A.
10. PW22 SI Rambir and PW23 HC Ajit are the police officiers who were posted at PS Kotla Mubarkpur 26.12.2009. On that day, after receiving DD No.3 from HC Ramchander, they both reached the spot i.e. Peer Baba Mazar, Near Gumbad, East Kidwai Nagar. There he found a male dead body, aged about 2530 years, in pool of blood. The head was found crushed. A blue coloured checkdar bedsheet having blood stains was found near the dead body. The boy was wearing blue coloured jeans pant and creme coloured full sleeves Tshirt. While coloured shoes were worn by the deceased. Head was lying towards North and feet were in the South direction. Crowd was assembled there. 34 persons were found around the dead body. One heavy stone of about one foot height was lying there stained with blood and hair. Seeing the condition of the dead body, he endorsed the DD entry Ex.PW22/AX. PW22 sent Ct. Ajit to the PS for registration of FIR at 9.30am. He further deposed that thereafter, crime team also arrived at the spot. SHO had also arrived. Crime team had inspected the scene of crime. Dead body was got preserved in the AIIMS mortuary for 48 hours. Statements of the witnesses were recorded. SHO had taken into possession the blood stained stone vide Ex.PW22/A bearing his State v. Arun Kumar & Ors. Page No.7/27 signature at point X. Blood was also lifted from near the dead body with the help of gauze and the seizure memo to this effect was prepared which is Ex.PW22/B bearing his signature at point X. Blood stained bed sheet was also taken into possession vide memo Ex.PW22/C bearing his signature at point X. White blood stained plastic glass was also taken into possession vide memo Ex.PW22/D bearing his signature at point A. Blood stained earth was also taken into possession vide memo Ex.PW22/E bearing his signature at point X. Blood controlled earth was also taken into possession vide memo Ex.PW22/F bearing his signature at point X. He further deposed that thereafter, a private photographer Mahesh Ahuja was called, who took the photographs of the scene of crime on the instruction of the IO. He further deposed that upon being searched of the dead body, a photograph and diary was recovered from the left pocket of the pant of the deceased. The photo depicted the deceased alongwith a lady. The abovesaid photo and diary were taken into possession vide seizure memo Ex.PW22/G collectively, which bears his signature at point X. He also identified the case property i.e. Stone, bedsheet, transparent plastic glass, jeans pant of the deceased and a small diary.
11. PW23 HC Nathi Lal was posted at PS Kotla Mubarkpur. He State v. Arun Kumar & Ors. Page No.8/27 deposed that on that day, he was on emergency duty in the night from 8.00pm to 8.00am. At about 8.40pm, he was assigned DD no.19A for preliminary inquiry. Thereafter, he went to the spot and came to know that the injured was removed to the AIIMS hospital. He reached to the hospital and recorded the statement of Sh. Bakhori Lal, father of injured and got it endorsed and sent for registration of the case, which was registered vide FIR No.82/2006, under section 308 IPC. Thereafter, the investigation was handed over to R.Y. Pandey. In the meanwhile, he received the second call, received from Safdarjung hospital about the injured Sheela. On the statement of injured Sheela, he got registered the case under section 323/341/506 IPC vide FIR No. 84/2006 against Amit. He had investigated this matter and filed chargesheet in FIR No.84/2006 in the court. He also proved the copies of the FIR No.82/2006 and 84/2006 as Ex.PW23/A and Ex.PW23/B respectively. PW21 SI Ram Yash Pandey (Retd.) had brought the record in respect of FIR No.82/2006 under section 308 IPC. He deposed that he had arrested accused Arun on that day. After completion of the investigation, he had filed the chargesheet.
12. PW13 HC Sangeet, PW24 HC Raj Kumar, PW26 Inspector V N Jha and PW27 SI Suman Kumar were the officials who had gone to State v. Arun Kumar & Ors. Page No.9/27 Apsra Boarder in search of accused Arun. Secret informer met with Inspector V.N. Jha there. He told to the Inspector that Arun had come there but now he alongwith two associates had gone towards Dilshad Garden/Seema Puri. Thereafter, they proceeded towards Dilshad Garden/Seema Puri and at the instance of the secret informer three persons were apprehended, whose names came to be known as Arun, Deepak and Dharmender. All the three were interrogated separately by the IO and they all in their respective disclosures disclosed that they had committed murder of Amit in the intervening night of 25/26.12.2009. It was further disclosed by the accused persons that the deceased was having illicit relationship with the mother of Arun. It was disclosed by accused Arun that earlier in the year 2006, he had attempted to kill Amit but could not succeed. IO arrested accused Arun, Deepak and Dharmender. They further deposed that all the accused persons had also disclosed that they can get recovered the motorcycle used in the commission of offence and also the clothes which they were wearing at the time of commission of offence. All the accused persons namely Arun, Deepak and Dharmender were arrested vide memos Ex. Ex.PW24/A, Ex.PW24/B and Ex.PW24/C respectively. Personal search of the accused persons was also taken vide memos Ex.PW24/D, Ex.PW24/D and Ex.PW24/F respectively. State v. Arun Kumar & Ors. Page No.10/27 The accused persons had pointed out the place of incident. The pointing out memos by accused Arun, Deepak and Dharmender are Ex.PW24/J, Ex.PW24/K and PW24/L respectively.
13. PW1 Dr. Sudipta Ranjan Singh has deposed that Dr. Radhvender, who had prepared the MLC No.CS111605/09 pertaining to Arun Kumar and MLC No.CS111606/09 pertaining to Dharmender, has left the service of the hospital. PW1 had identified the handwriting and signature of Dr. Raghvender on both the MLCs as she has worked with him. She also proved both the MLCs as Ex.PW1/A and PW1/B respectively. PW4 Dr. Raghvendra Kumar, Medical Officer, IGI Airport has deposed that on 28.12.2009 at 11.50am, the IO Vivekanand Jha brought the dead body of Sh. Amit alongwith the inquest papers with the alleged history of found dead on 26.12.2009 near Peer Baba Gumbad in a pool of blood and one blood stained stone was also lying near the head of the body. On postmortem examination, head and face were found flattened on right side. Right black eye was seen. One laceration of size 5x1 cm was present over right parietal region, 11cm from right tragous, 11 cm from occiput. One contrusion of size 3x2.5cm was present over dorsum of nose and reddish in colour. One laceration of size 2.5x5cm was present over left State v. Arun Kumar & Ors. Page No.11/27 side of the forehead, 13cm left tragous, 11 cms above gladella. One laceration of size 2.5x0.5cm was present over middle of the forehead. One contusion of size 5x6cm was present over right side of the forehead spreading from hairline to right eyebrow. It was reddish in colour, on dissection extra vassation of blood was seen. One scratch was abrasion of size 1x0.5cm was present over upper surface of right shoulder. A laceration of size 1x1 cm was present over palmer aspect of terminal phalanx of right middle finger. A laceration of size 1x1 cm was present over palmer aspect terminal phalanx of right right finger. Multiple scratch abrasion were present over dorsum of right hand. These were reddish in colour. One contution of size 3.52cm was present over left side of upper part of chest. It was 13cms from mid line and 10cms from left shoulder. One contituon of size 6x2cm was present over left malar region and left cheek were reddish in colour. One abrasion of size 5x5.5cm was present over left lowere back. It was reddish in colour and 52.5cm from right shoulder. One contution of size2x1.5cm was present over anterior surface of right shoulder, 4cm below acromian. One abrasion of size 4x4cm was present over right back, 28cm below right shoulder and 7cms from midline. One contution of size 4.5x3.5 cm was present over midle part of the back, 23 cms from right shoulder and 21 cms from right shoulder. One State v. Arun Kumar & Ors. Page No.12/27 laceration of size 6x2.5cm was present over left occipital region. It was 6cm from left ear and 5cm from occiput. One laceration of size 5x1.5 cms was present over area behind left ear over mastoid process and root of left pinna. One laceration of size 2.0.5cm was present over left temporal region 8cm from left tragus, 13cm from occiput. One laceration of size 5x1.5cm was present over left parietal region, it was 12cm from occiput and 9cm left tragus. One laceration of size 2x1cm was present 2.00cm above the previous injury. On dissection of skull difussed haematoma was seen in sub scalp region, communited fracture of right parietal and temporal and left parietal bone was seen, base of skull in middle cranial fossa was fractured. All fractures were associated with the haemotoma. Diffuse subdural and subarachnoid haemotoma were seen. Diffuse subarachnoid and paranchymatous were present in left occipital lobe and brain stem. Both the lungs in pleural cavities were found congested. Liver, slpeen and kidney were also congested. About 100ml semi digested flood was present in the stomach, mucosa was congested on posterial part of stomach. Blood stains were present on the clothes, face, head and upper limbs. He collected (1) one pair of shoes (Dockers), one blue pant, one red underwear, one orange colour vest, one white grey colour Sweter, one blue Tshirt, (2) hair recovered from both the hands, (3) scalp hair of State v. Arun Kumar & Ors. Page No.13/27 the victim, (4) blood in gauze, (5) piece of heard for DNA examination in normal saline and (6) Kara (steel), Mala, sealed them and handed over to the IO. He opined the time since death about 23 days. He also opined that in this case, head injury produced by blunt object sufficient to cause death in ordinary course of nature. All injuries were ante mortem in nature. However, viscera have been kept to rule out any intoxication. He also proved his postmortem report as Ex.PW4/A, bearing his signature at point A.
14. PW23 Dr. Sudhir Gupta has deposed that he alongwith Dr. Raghvendra Kumar conducted the postmortem examination on the dead body of Amit, 27 years male on 28.12.2009. The detailed post mortem report no.1352/2009 already Ex.PW4/A bearing his signature at point A. He deposed that the cause of death in this case was head injury produced by blunt object and was sufficient to cause death in ordinary course of nature. He has also given the subsequent opinion on 11.12.2010 regarding injury and the weapon of offence on being requested by the Investigating Officer Inspector VN Jha of PS Kotla Mubarkpur. He proved the subsequent opinion as Ex.PW23/A bearing his signature at point A. State v. Arun Kumar & Ors. Page No.14/27
15. PW3 had brought the record of Motorcycle Bajaj bearing no. DL 5SW 3541. As per record, the said motorcycle is registered in the name of Sh. Sunder Lal. PW8 Sushil Malik was running a tent/decoration shop for last about 30 years at shop no. 3, Central Market, Kidwai Nagar (East), Kotla Mubarak Pur. He had identified the accused Arun who was residing near the shop of witness. He had talked to said Arun at the instance of sister of accused Arun. Arun had told him that he had taken revenge from Amit for tarnishing the reputation of his family.
16. PW10 Satya Parkash Gupta was present on 25.012.09 at his shop. At about 9.30 pm, he had seen accused Arun as he had purchased two cigarettes from him. He had also identified the other person who visited the shop alongwith Arun from the photographs. PW12 deposed that information about the arrest of the accused Deepak was given to him on his mobile phone bearing no. 9211907235 and the sim card of which was in the name of his mausa namely Ramesh.
17. PW14 Jamuna Sharma was the sister of deceased. She deposed that he came to know that his brother Amit had been killed. He came State v. Arun Kumar & Ors. Page No.15/27 to know from police that Arun had committed the murder of his brother Amit. PW15 Poonam Sharma deposed that her deceased son Amit was a conductor in a bus. There occurred a quarrel between Sheela Devi and his son. About 45 days prior to death of his son, Sheela Devi came to his house. Sheela Devi apprised him that his son Amit slapped her and that she will get his son beaten. She further deposed that on 25th December, about a year back Arun the accused had come to his house and taken his son with him. The next day police informed that his son was no more.
18. PW17 on 26.12.09 was patrolling the area at East Kidwai Nagar. During the patrolling, he met with one Sushil Malik, the owner of the shop of tent house, at central Market, East Kidwai Nagar. Sushil told him that he had talked on phone to Arun, residing in front of his shop at house no. D88, East Kidwai Nagar, and Arun told him that he had committed the murder of a person alongwith his associates whose dead body was found at Peer Baba Gumbad (tomb). PW19 was running a shop of meat and mutton below his house. He was given an order of mutton of 67 kg by one person to be delivered on the next day. On next day, he had given mutton to two boys. He had been given Rs. 17,00/ by the persons present in the court today. State v. Arun Kumar & Ors. Page No.16/27
19. In order to explain the circumstances appearing in the evidence, all the accused persons were examined u/s 313 Cr.P.C. All the incriminating evidence were put to the accused persons to which they denied the evidence and claimed innocence and false implication. But they did not prefer to examine any witness in defence.
20. On behalf of State, Ld. Addl. Public Prosecutor had presented the fact and stated that prosecution from the evidence of Sushil Malik had proved the fact that accused Arun had made the confessional statement on their mobile phone on 26.12.09 and PW17 HC Jagdish had confirmed the fact that on 26.12.09 while patrolling duty, he met with Sushil Malik PW8 and he told him that Arun had confessed before him that he had committed the murder of the deceased. He further argued that the prosecution had proved the fact that the accused had an enmity with the deceased. Motive has been proved because deceased was having illicit relation with the mother of the accused Arun. Moreover, recovery had been effected at the instance of the accused persons from their respective houses. He submits that prosecution has proved its case against the accused u/s 302/201/34 IPC. Therefore, they deserve to be convicted.
State v. Arun Kumar & Ors. Page No.17/27
21. On the other hand, counsel for defence had stated that present case is based on the circumstantial evidence and the chain of the circumstantial evidence has been broken at every stage. He had submitted that recovery of the clothes are highly doubtful, because of the place of recovery is situated just about one km from the place of arrest. Inspite of this, IO had not chosen to get recovered the clothes, though IO was having the knowledge. IO had chosen to get recovered the clothes on the next day from the place which is at the distance of 25 km from PS. He further submitted that extra judicial confession is very weak type of evidence. Moreover, witness Sushil Malik had himself admitted that the father of the accused had been detained in the PS. Therefore, there is no occasion of the accused to admit before him on telephone that he had committed the murder of the deceased. He further submitted that PW6 had deposed before the police that he had seen the accused Arun, his two associated and deceased at 9.00 pm at Sukhdev Market but in the court witness had deposed before this court that he had not seen any body. Therefore, the prosecution case falls flat.
22. I have heard the arguments, gone through the record and State v. Arun Kumar & Ors. Page No.18/27 analyzed the evidence. From the testimony of the prosecution witness, it has been proved that deceased was died due to head injury produced by blunt object sufficient to cause death in ordinary course of nature. All the injuries were ante mortem in nature.
23. Now, look at the prosecution evidence. Prosecution case is based on the circumstantial evidence against the accused persons. So far so, the prosecution case against the accused persons namely Arun, Dharmender and Deepak are that they in furtherance of common intention had murdered the deceased by giving stone blow. Deepak and Dharmender had caught hold the deceased. So far so, the accused Arun is concerned, prosecution has in possession of the evidence of motive. From the search of the dead body, a photo and a small dairy was recovered. The photograph was of the deceased alongwith a woman. That woman was the mother of Arun. As there was an illicit relation between the deceased and the mother of the accused, therefore, Arun had committed the murder of the deceased alongwith his two associates. All the three accused persons had been arrested on the basis of secret information from Dilshad garden and they led the police party to Shaibabad for recovery of the articles i.e chappal, shoes and clothes having blood stains and got recovered the same.
State v. Arun Kumar & Ors. Page No.19/27
24. The accused Deepak was alleged to have connected with clothes as well as from his mobile phone in the present case. So far so, the accused Dharmender is concerned the prosecution has alleged the recovery of the blood stained clothes from the house of accused Arun. The clothes and articles of all the three accused persons were sent to the FSL. Their hair sample had also been sent for comparison to FSL in order to ascertain whether infact the hair of the accused had been matched with hair sticked on the blood stained stone. But the scientific evidence has not supported the prosecution case. On examination, Dr. Anupam Raina in his report Ex PW26/E did not find any match of DNA profile of gauze pieces of suspects with any of the articles recovered at the instance of accused persons or lying at the scene of crime. PW6 Mahesh Ahuja had not seen the accused Deepak and Dharmender at about 9.00 or 9.30 pm alongwith accused Arun and deceased and the PW10 Satya Prakash Gupta had not said anything about the presence of Deepak and Dharmender at his shop. Therefore, virtually there is no evidence at all to connect the accused Dharmender and Deepak in the alleged crime. Therfore, accused Deepak and Dharmender are acquitted from charge u/s 302/201/34 IPC. State v. Arun Kumar & Ors. Page No.20/27
25. Now, the prosecution case against the accused Arun is about the motive, last seen evidence as well as recovery. No doubt, the prosecution witnesses identified the photograph of the deceased alongwith the mother of the accused Arun. According to the prosecution, the deceased has the illicit relation with the mother of Arun and for that reason he had also attacked the deceased in the year 2006 and a criminal case has been registered. But the motive alone is not material unless the other circumstances have corroborated the fact.
26. IO PW26 Insp. V.N. Jha had stated that the private photographer had been called at the spot because the camera of the mobile crime team have become out of order. But PW9 the crime team incharge SI Jitender had not deposed that the camera of the crime team become out of order. PW6 private photographer was called by the IO not only for the purpose of taking the photographs but also for deposing the fact that he had seen the accused, his two associates and deceased at about 9.00 or 9.30 pm near Sukhdev Market on 25.12.09. but the last seen evidence has been washed away because the PW6 had not supported the prosecution case. He had denied the fact that he had ever seen the accused and his two associated and deceased at Sukhdev market at 9.00 or 9.30 pm. One more witness namely Satya Prakash Gupta, the PW10 State v. Arun Kumar & Ors. Page No.21/27 has also deposed about seeing the accused and deceased at about 9.00 pm. But his statement had been recorded by the IO much later after the arrest of the accused persons. He did not know the deceased. He knew the accused because he reside at Kidwai nagar but he did not know how many times Arun had visited his shop for taking cigarette. The brand of cigarette he did not mention in his statement purchased by Arun. Therefore, the testimony to the purchase of cigarettes at 9.00 pm by Arun does not inspire the confidence.
27. Further, the prosecution has relied upon the extra judicial confession made by Arun on telephone to the PW8 Sushil Malik and the prosecution had examined Sushil Malik, Shishir Malhotra and Vishal Gaurav to show that at the relevant time the call had been made between Sushil Malik and Arun and both these phone i.e. 8802356054 and 9818722783 belongs to Arun and Sushil Malik respectively. But the extra judicial confession is a very week type of confession. According to the prosecution, PW8 Sushil Malik had gone to the house of accused at the asking of the sister of Arun and there Arun had confessed that he had taken the revenge and PW6 told the above said fact to one beat constable who was in the area. Beat constable waited for four hours for telling the said fact to Insp. V.N. Jha, though he had State v. Arun Kumar & Ors. Page No.22/27 the knowledge of the murder and accused came to him. If a police officer, though a beat constable had come to know about the material fact, then he shall rush to the PS and told his senior officer, The above said story as put by the prosecution create suspicion. Moreover, it cannot be said definitely whether the persons who had spoken to PW6 on mobile phone is really Arun or some one had used the mobile phone of Arun. PW6 had not said that he identified the voice of Arun.
28. The further prosecution case is that the accused persons were arrested on 27.12.09 on the basis of secret information from Dilshad garden where they were found coming on foot. Their disclosure statement were recorded. On 28.12.09 the accused persons led to the police party at Sahibabad and they had got recovered their clothes and articles in which the blood was seen to have sticked. According to the prosecution, the above said articles were sent to FSL for extracting the DNA profile. Hairs of the accused persons were also taken and sent to FSL in order to ascertain whether the hairs of the accused persons had been matched with the hair stuck on the blood stained stone which was found lying at the spot where the murder had been committed. But again the FSL report did not support the prosecution case. Moreover, the recovery of the articles ie. Cloths, shoes and other things from State v. Arun Kumar & Ors. Page No.23/27 Shaibabad at the house of Arun and Deepak is highly doubtful. Because it is admitted fact by the prosecution witnesses that the place of recovery of the above said articles is hardly at a distance of two and half km from the place of arrest while the PS has been situated at a distance of 25 km from the place of arrest. Arrest has been effected in the noon time at about 2.00 or 3.00 pm and the investigation officer has the 24 hours time to produce the accused in the court but he had chosen to produce the accused in the Patiala house court for taking police custody and he had not taken the accused to that place for getting recovery of the articles. It is also admitted by PW 26 Insp. V.N. Jha that the father of Arun had come in the PS for meeting after coming to know about their arrest. Inspite of this IO had not cared to raid immediately to the house of accused persons for recovery the articles. He had waited for full one day and had gone alongwith the accused persons to Shaibabad for recovery of articles on the next day. It appears that IO had intentionally created these evidence, otherwise there was no occasion to the IO to wait for one day. The above said fact has been buttressed from the fact that no public persons had ever joined at the time of recovery of these articles, though available in abundance.
State v. Arun Kumar & Ors. Page No.24/27
29. Moreover, in the present case, IO had not cared to record the statement of Smt. Punam Sharma, PW15 regarding the fact when his son had left the house. This fact assumed significance particularly doctor conducting the autopsy had opined the time since death was 2 to 3 days. Admittedly, as per Ex PW4/A autopsy was started at 12.20 pm in the noon time on 28.12.09. IO had filled up the above said fact by recording the statement of PW6 Mahesh Ahuja and PW10 Satya Prakash Gupta. Statement of Satya Prakash was recorded after arrested accused persons in the present case. PW6 Mahesh Ahuja was called on the pretext that the camera of the crime team photographer was out of order while the crime team incharge had not stated so. PW6 was called by the IO to take the photographs but he had also stated to the police that he had seen the accused, his two associates and deceased at about 9.00 at Sukhdev Market which fact had not been deposed by PW6 before this court when examined. The best witness available in this case is PW15 who can tell when his son had left the house and for what time the death had been occurred. Though, PW15 in her testimony had stated before this court that accused Arun had taken her son on 25.12.09, but she had not stated the time when Arun had taken her son. Moreover, her version could not be relied because the defence had not cross examined her due to her not tunring up in the State v. Arun Kumar & Ors. Page No.25/27 court when called. Moreover in the present case, a blue colour bed sheet was also recovered from the scene of crime, but IO had not again investigated this aspect about the lying of the blue colour blood stained bedsheet at the spot. Role of the crime team is also under cloud. PW9, the crime team incharge is expected to ascertain the scene of crime at the very first movement and detailed the fact in his report. But the crime team incharge in his report Ex PW9/A had not mentioned any articles lying there. Rather than he had stated in his report that articles present at the spot as per seizure memo, while no seizure memo has been prepared till 12.00 pm on 26.12.09 and the crime team incharge had inspected the scene of crime between 9.00 am to 10.00 am. The crime team incharge by reaching the spot and making such a report is just a mockery and nothing else. He must have in explicit terms mentioned the articles lying there at the spot and what was the position of the articles.
30. In view of the above discussion, it appears that the chain of circumstantial evidence had been broken from everywhere. Last seen evidence has been washed away. Extra judicial evidence does not inspire confidence. Recovery of clothes and articles are highly doubtful, scientific evidence does not led any credience to the State v. Arun Kumar & Ors. Page No.26/27 prosecution case. Therefore, prosecution has failed to prove its case beyond reasonable doubt against the accused persons. Benefit of doubt is given to the accused persons. All the accused persons are acquitted from the charge u/s 302/201/34 IPC. Their bail and surety bond stand cancelled and discharged. File is consigned to record room. Announced in the open court on 28.08.2012 (Atul Kumar Garg) Additional Sessions Judge04, Saket Courts/New Delhi State v. Arun Kumar & Ors. Page No.27/27