Delhi District Court
State vs . Ajay And Another on 18 January, 2022
1
IN THE COURT OF MS. KIRAN GUPTA,
ADDITIONAL SESSIONS JUDGE-03,
NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
SC NO. 151/19
FIR NO.891/18
PS Sultan Puri
U/S.302/323/34 IPC
STATE Vs. Ajay and Another
CNR NO. DLNW-01- 001547-2019
a. Session Case No. 151/19
b. Date of offence 08.11.2018
c. Accused 1. Ajay S/o Lal Ji
R/o H.no. A-3/376,
Sultan Puri, Delhi
2. Sagar @ Kaku
S/o Prem Singh
R/o H.No.A-3/235-236,
Sultan Puri, Delhi
d. Offence U/s. 302/323/34 IPC
e. Plea of accused Pleaded not guilty
f. Final order ACQUITTED
g. Date of Institution 15.02.2019
h. Date when 23.12.2021
judgment was
reserved
i. Date of judgment 18.01.2022
Digitally
State Vs. Ajay and Another Page no. 1 of 46 KIRAN
signed by
KIRAN GUPTA
Date:
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JUDGMENT
1. The accused persons are facing trial for the offence U/s. 302/323/34 IPC.
BRIEF FACTS
2. The case of prosecution is that on 08.11.2018, when Inspector Vipin Kumar alongwith Ct. Sachin was on area patrolling duty in the area vide DD No.4 B, at around 4.15 a.m., when they reached near A 3 Block, they met Jitender alias Golu at 908, Bus Stand, Sultan Puri. He told them that Ajay and Sagar @ Kuku have killed his friend Yogesh at A-3 block, Sultan Puri by stabbing him. Inspector Vipin alongwith the staff reached at A-3 Block Sultan Puri, where they found lot of blood was scattered in a Gali near house no.A-3/378, Sultan Puri, and one white colour cap and knife was lying there. They found marks of dragging of body at the spot, however, the body was not found at the spot. When they searched nearby, they found body of Yogesh was lying in the drain near the wall of park opposite A-3/323 Sultan Puri. Jitender alias Golu identified the body of his friend Yogesh. On inspection of the body, stab wound was found on the chest of the body and clothes were drenched with blood. The SHO was informed and crime team was called at the spot.
State Vs. Ajay and Another Page no. 2 of 46
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KIRAN GUPTA
Date:
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2.1 The statement of Jitender was recorded. He in his
statement, stated that at around 3.30a.m, he alongwith his friend Yogesh was going towards his house. When they reached at A - 3 Block Gali, Ajay and Sagar @ Kuku caught hold of Yogesh and started abusing him. Yogesh had fight with Ajay few days before regarding some matter of money and Yogesh had beaten Ajay at that time. Scuffle took place between Ajay, Sagar and Yogesh. Sagar caught hold of Yogesh from back side while Ajay started beating Yogesh with legs and fists. When he/ Jitender tried to intervene and save Yogesh, Ajay threatened him with knife. Sagar also took out knife and threatened him by saying, 'pichey hat ja varna chaku khayega" Then Sagar, hit Jitender with the butt of his knife on the back side of his head. In the meantime, Ajay stabbed Yogesh with knife in his chest. The blood started coming out and Yogesh fell on the floor. He out of fear ran away. When he was on his way, he met police officials at bus stand 908, Sultan Puri, Delhi.
2.2 During investigation, both the accused persons were arrested from house no. A3/376 Sultan Puri, Delhi. One knife was recovered at the instance of accused Ajay on 09.11.2018. The hawai chappals worn by the accused persons at the time of commission of offence were seized and sent to FSL. After investigation, charge sheet was filed against accused persons u/s.
State Vs. Ajay & Another Page no. 3 of 46
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KIRAN KIRAN GUPTA
Date:
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302/323/34 IPC.
3. The Ld. MM after taking cognizance of the offence, summoned all the accused persons and after compliance with the provisions of Section 207 Cr.PC, the case was committed to the Court of Sessions, whereafter it was assigned to this court.
CHARGE
4. After hearing arguments on point of charge and finding a prima facie case, charge for the offence U/s.302/323/34 IPC was framed against both the accused persons.
PROSECUTION EVIDENCE
5. In order to prove its case, prosecution has examined as many as 22 witnesses.
6. PW1 is Smt. Premwati. She during her examination in chief deposed that her nephew Yogesh had expired. She identified her signatures on the identification memo of the dead body as Ex.PW1/A. She deposed that Jitender already knew that State Vs. Ajay & Another Page no. 4 of 46 Digitally signed KIRAN by KIRAN GUPTA GUPTA Date: 2022.01.18 12:40:02 +0530 5 Yogesh will be murdered on the alleged date of incident by Sagar and and Ajay and this fact was told to her by Jitender himself after the incident. Jitender had taken Yogesh with him on the date of incident.
6.1 During cross-examination, she deposed that she narrated the above facts to the police, however, police had not recorded this fact in her statement. She made complaint to the senior officials. She admitted that she is not an eye witness to the incident.
7. PW 2 Suraj Kumar is the brother of the deceased. He proved the identification of dead body as Ex.PW2/A and the memo vide which the body was handed over to him as Ex.PW2/B.
8. PW3 is Jitender. He is the complainant and eye witness of the incident. His testimony shall be discussed in detail in the later part of judgment.
9. PW4 ASI Satbir is the Incharge of Mobile Crime Team. He proved his detailed report as Ex.PW4/A. State Vs. Ajay & Another Page no. 5 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
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10. PW5 Smt. Laxmi is the mother of deceased. She during her examination in chief deposed that deceased Yogesh was her son. On 07th day of month in 2018, it was Diwali. At about 6.30/6.45 p.m, Golu @ Jitender came to their house. At that time, she was preparing batti for the diyas. He asked her to send her son Yogesh with him. She told him that Pooja is yet to be performed. Golu @ Jitender insisted and assured him that they would return within a short span and thereafter, he took her son with him. Her son Yogesh never returned. On the next day, they received a phone call that his son had been stabbed and they should reach at the PS. In the PS, they met Jitender @ Golu who told her that he (her son) had a quarrel with accused persons Ajay and Sagar who had stabbed him.
10.1 She further deposed that on 04.11.2018, at about 6.30 p.m., accused persons namely Ajay and Sagar came to her house and asked her that " aunty Yogesh ko samjha lo, nahin to bahut bura ho jayega, aunty paisa hi sab kuch nahin hota , agar zindagi hoti hai to paisa kaam ata hai aur agar zindagi nahin hoti to paisa kaam nahi naata". They further said, "aage se usne bejati kar di to hum use khatam kardenge". She requested them not to cause any harm and requested that she will make her son understand. She further deposed that after the murder of his son Yogesh, some persons had visited her house and threatened her to withdraw her case and they further said that they had won over State Vs. Ajay & Another Page no. 6 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:40:12 +0530 7 witness Golu @ Jitender and he would tender his evidence in their favour and her case was very weak. She had given a complaint in this regard to the police and copy of the same was sent to Delhi Commission for Women. She proved the complaints as Ex.PW5/A and Ex.PW5/B. 10.2 She during her cross-examination by Ld. Defence Counsel, was confronted with her statement Mark PW5/DA (her statement U/s 161 Cr.PC), where it is not stated that Jitender told her that quarrel took place between Yogesh and accused persons and that they stabbed her son.
11. PW6 Dr. Ramandhar Prasad, CMO, SGM hospital has proved the MLC of injured Jitender @ Golu as ExPW6/A.
12. PW7 HC Satish Kumar is the duty officer. He proved the FIR as Ex.PW7/A, endorsement on rukka as Ex.PW7/B. Certificate U/s. 65 B of Indian Evidence Act as Ex.PW7/C.
13. PW 8 Jaswant proved the copy of photographs as Ex.PW8/A, CD containing photographs as Ex.PW 8/B, State Vs. Ajay & Another Page no. 7 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:40:18 +0530 8 Certificate U/s. 65 B of Indian Evidence Act as Ex.PW8/C.
14. PW9 Ct. Dharmender prepared the rough notes and proved the detailed scaled site plan as Ex. PW9/A.
15. PW 10 Ct. Sachin deposed that in the intervening night of 7-8.11.2018, he was working as driver at PS Sultanpuri.
On that day, Inspector Vipin Kumar left the PS vide DD no.4B in official vehicle. The vehicle i.e. Gypsy bearing no. DL1CQ8435 was driven by him. While patrolling at about 4.15 a.m., they reached at 908 bus stand, where one person came to them and disclosed his name as Jitender. He stated that two persons namely Ajay and Sagar had committed murder of his friend with knife near A-3/378, Sultan Puri. Thereafter, they alongwith Jitender reached at the spot. There was blood near the said spot. One knife was lying at the spot. The body of Yogesh was not there. They found the marks of dragging and followed the dragging marks. After some distance, they found the dead body of Yogesh lying in the drain just adjacent to the wall of park. Crime team reached at the spot.
16. PW 11 Manisha Upadhyay, Asstt. Director, Biology , FSL proved the DNA profile report as Ex.PW11/A. She deposed that DNA profile generated from the source of State Vs. Ajay & Another Page no. 8 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:40:25 +0530 9 exhibit 5 (Gauze cloth piece of deceased) is similar with the DNA profile generated from the source of exhibit 1 (knife from the spot), exhibit 7 (chappal from the accused Ajay), exhibit 8 (chappal from the accused Sagar) and exhibit 10 (clothes of complainant). She proved the report as Ex.PW11/B.
17. PW12 Dr. Anurag Thapar proved the postmortem report as Ex.PW12/A and the subsequent opinion obtained by the IO as Ex.PW12/B.
18. PW13 Ct. Vikas deposed that he received the call from ATO Vipin to reach the house at A-3/323, Sultan Puri. When he reached at the spot, he met Ct. Jitender, ASI Ashok and Inspector Vipin, who handed over rukka and sealed pullanda to him. He on the basis of the rukka, got the FIR registered. He deposed that on the instruction of Inspector Vipin Kumar, he took one Jitneder alias Golu to SGM Hospital for his medical examination. After his medical examination, they returned to the PS.
19. PW14 Ct. Yogesh deposed that on 07.12.2018, he collected 10 exhibits and 1 viscera wooden box with one sample seal of SGMH and FSL from MHC(M) HC Rakesh vide RC bearing no.433/21/18 dated 07.12.2018. He proved the copy of State Vs. Ajay & Another Page no. 9 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:40:46 +0530 10 RC as Ex.PW14/A and Ex.PW14/B. He deposited the same to the FSL Rohini. He proved acknowledgment slip of sealed wooden box as Ex.PW14/C and acknowledgement slip of ten sealed parcels as Ex.PW14/D.
20. PW 15 ASI Naresh Kumar, PW16 Ct Jitender and PW21/IO Inspector Mohinder Singh PW21 Inspector Mohinder Singh deposed that on 08.11.2018, further investigation of the present case was assigned to him. He alongwith Ct. Vikas went to park near to house A- 3/324, Sultan Puri. There Inspector Vipin, PW 15 ASI Naresh, ASI Ashok and PW16 Ct. Jitender and crime team officials met him. Two public persons Suraj and Phoolwati were also present there. He recorded the statement of Suraj and Phoolwati and all other police officials. After identification of the body, he filled form regarding death report Ex.PW21/A. He seized vicera, blood gauze of blood sample and clothes of deceased vide seizure memo Ex.PW16/C. He seized one blood stained pant and one jersey of complainant vide memo Ex.PW13/B. He had deputed police staff to keep eye on the house of accused Ajay and inform him when Ajay would come to his house. At about 4:15 pm, he received information regarding coming of accused Ajay to his house. Thereafter, he alongwith complainant Jitender, PW16 Ct. Jitender State Vs. Ajay & Another Page no. 10 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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and PW15 ASI Naresh left PS at about 4:30 pm. They reached at the house of accused Ajay at A3/376, Sultan Puri, Delhi. Complainant Jitender pointed out towards two persons in the house of accused Ajay and identified them as accused Ajay and Sagar. They apprehended them and recorded their disclosure statement Ex.PW15/E and Ex.PW15/F. Accused Ajay had told him during interrogation that he had thrown the used knife in a drain of Sultan Puri, Delhi and can get it recovered. He noticed small blood stains on the slippers worn by both the accused persons. So he seized slippers of accused persons vide memo Ex.PW15/A and Ex. PW15/B. They deposed that both the accused person took them to place of incident and proved pointing out memo of accused Ajay and Sagar @ Kuku as Ex.PW15/G and Ex.PW15/H respectively. PW21 deposed that the statement of complainant Jitender was recorded at the spot. Complainant was made free from the case. Thereafter, they came back to PS and deposited the case property in the maalkhana. Medical examination of accused persons was got conducted and they were detained in the lockup. Due to the night time, they did not go to the place where accused Ajay disclosed to have thrown the knife.
20.1. PW21 further deposed that on 09.11.2018, in the morning, he joined PW15 ASI Naresh and Ct. Jitender in the investigation. Thereafter, they alongwith accused Ajay went to the drain Sultan Puri, Delhi. Accused Ajay took out one knife from State Vs. Ajay & Another Page no. 11 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:40:59 +0530 12 the patri of the drain near bushes of jaati keekar and handed over to him. The knife was stained with mud. He noticed very small blood stain on the knife. He prepared the sketch of the knife Ex.PW15/J and seized it vide memo Ex.PW15/K. Thereafter, he deposited the knife with the MHC(M). On 25.11.2018, he wrote an application Ex.PW21/C to the doctor for opinion on the knife.The doctor gave his opinion on the back of his application and handed over the knife with seal of Mortuary, SGMH Govt. of NCT of Delhi. Thereafter, further investigation of the case was transferred to some other IO. He proved the site plan of the spot as Ex.PW21/D. These witnesses identified the clothes handed over by complainant Jitender as Ex.P1 (colly), the Pair of chappals as Ex.P2 &3, the knife recovered at the instance of accused Ajay as Ex.P4. PW21 deposed that he recorded the statement of Jitender Ex.PW3/B u/S 161 Cr.P.C as per the facts disclosed by complainant Jitender.
20.2. PW 16 Ct. Jitender also proved the seizure memo of blood samples, clothes and viscera of deceased as Ex.PW16/C.
21. PW 17 HC Subey Singh deposed that on 08.11.2018, he was posted as Finger Print Expert/ proficient at Mobile Crime Team, Outer District, Delhi. On that day, at about 5.30 a.m, he alongwith Incharge ASI Satbir and HC Jaswant State Vs. Ajay & Another Page no. 12 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:41:05 +0530 13 (photographer) went to the place of incident i.e. in front of A- 3/378, Sultan Puri, Delhi. He tried to lift the chance prints but did not find any chance prints.
22. PW18 ASI Ashok Kumar deposed that on 08.11.2018, he along-with Ct. Jitender reached at the spot in front of A3/378, Sultan Puri, Delhi on the call of Inspector Vipin Kumar. Inspector Vipin Kumar alongwith other officials met them there. He proved the seizure memo Ex.PW18/A. He deposed that on 15.12.2018, Ct. Dharmender, Assistant Draftsman inspected the spot and prepared rough notes at the instance of complainant Jitender. He identified the Knife and cap of white colour recovered from spot as Ex.P5 and Ex.P6.
23. PW 19 Inspector Gulshan Nagpal deposed that in December, 2018, further investigation of the present case was assigned to him. On 07.12.2018, he had sent the sealed exhibits to FSL, Rohini through Ct. Yogesh. On 15.12.2018, he got the scaled site-plan prepared from Ct. Dharmender , Assistant Draftsman at the spot in the presence of complainant. On 15.01.2019, he examined witness Jitender and recorded his supplementary statement Ex.PW19/A as per the facts disclosed by him. On 22.01.2019, he recorded the statement of Smt. Laxmi Devi, Ct.
Jitender and Ct. Jatin. Thereafter, he filed the chargesheet and State Vs. Ajay & Another Page no. 13 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:41:13 +0530 14 after receiving the FSL result, he filed the supplementary charge sheet.
24. PW20 HC Rakesh, deposed that on 08.11.2018, inspector Vikram deposited five sealed pulandas with the seal of VK, three sealed pulandas with the seal of MSK and three sealed parcels with the seal of SGM mortuary alongwith two sample seals. He deposited the above said case property in the maalkhana and made entry bearing no. 5218 in register no. 19 Ex.PW20/A. On 07.12.2018, 10 sealed parcels and one sealed wooden box of the present case were sent to FSL Rohini through Ct. Yogesh vide RC No. 434/21/18 and 433/21/18. As per RC No. 434/21/18, the ninth parcel was sealed with the seal of SGMH Mortuary Mangol Puri, Delhi and it is containing a knife recovered from accused Ajay. Ct. Yogesh deposited the said parcels in FSL and handed over the acknowledgment of case acceptance. He proved the register no. 21 containing RC no. 434/21/18 and 433/21/18 and original acknowledgment of case acceptance as Ex.PW20/B, Ex.PW20/C, Ex.PW20/D and Ex.PW20/E. He deposed that on 12.02.2019, Ct. Satish deposited one sealed report alongwith 10 sealed parcels with him and he deposited the same in the maalkhana and made remarks at point C on Ex.PW20/A. On the same day, one sealed wooden box with result in sealed condition was handed over to him by Ct. Satish and entry was made by him at point X on Ex.PW20/A. On 18.02.2019, two results of FSL in State Vs. Ajay & Another Page no. 14 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:41:20 +0530 15 sealed condition were handed over to Inspector Gulshan Nagpal and entry were made at points D and E on Ex.PW20/A. 24.1. When the witness was asked about the deposit of case property seized vide seizure memo dated 09.11.2018 Ex.PW15/K (knife recovered at the instance of accused Ajay).
After seeing original register no. 19, witness stated that there is no entry in register no. 19 regarding deposit of case property of the present case on 09.11.2018. He deposed that on 07.12.2018, total 10 sealed samples were sent to FSL, out of which 4 samples were sealed with the seal of VK. On 09.11.2018, IO had handed over one sealed parcel to him but the IO did not hand over the seizure memo of that parcel, due to which he did not make entry in register no. 19 regarding the deposit of said parcel in maalkhana, however, he had deposited the parcel in maalkhana with him on that day.
25. PW22 Inspector Vipin Kumar deposed that on the intervening night of 07-08.11.2018 he alongwith his driver Ct. Sachin was on patrolling duty in the area. At about 4:15 am when they reached near A-3 block, one person came running towards them and he disclosed his name as Jitender @ Golu. He told him that a murder took place in front of H No. 378, A3 Block, Sultan Puri, Delhi. Thereafter, they alongwith Jitender reached at the State Vs. Ajay & Another Page no. 15 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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abovesaid place. He interrogated him and wrote his statement Ex.PW3/A as per facts disclosed by him. He called the crime team at the spot. He lifted one whitecap, blood stains, earth control with blood stains, earth control without blood stains from the spot. He lifted one big knife having wooden handle stained with blood from both sides at the spot and seized all the articles vide seizure memo Ex.PW18/A. He prepared sketch of knife before making its pulanda Ex.PW22/A. 25.1. There was one dead body lying in front of H No. A- 3, 323, Sultan Puri, Delhi. There were stretch mark of blood coming from the spot i.e. in front of H No. A3, 378 towards in front of H No. A-3, 349 and body of deceased was lying in the drain adjoining to the wall of park in front of H No. A-3, 323. They had found the dead body after following the blood stained stretch marks. Complainant Jitender followed with them and he pointed out the dead body in the drain. He prepared rukka Ex.PW22/B on the statement of complainant Jitender. After registration of FIR Inspector Mahender reached at the spot. The further investigation of the case was assigned to him by the SHO. He identified the knife recovered from the spot as Ex.P5, the cap recovered from the spot as Ex.P6. The one gauze piece having blood stains as Ex.PW22/P1, the earth control having blood stains as Ex.PW22/P2, the earth control without blood stains recovered from the spot as Ex.PW22/P3.
State Vs. Ajay & Another Page no. 16 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date: 2022.01.18 12:41:33 +0530 17
25.2. During cross examination, he deposed that he did not made any enquiry as to who was the owner of H No. A3, 378, Sultan Puri, Delhi. He remained at the spot till 7:30 am. He did not record the statement of any owner of abovesaid house and also did not record statement of any other witness including local persons. He Volunteered that he did not record their statements as immediately after registration of FIR, investigation was transferred to Inspector Mohinder. He started recording statement of Jitender at about 6 am and prepared rukka at about 7:30 am. He did not obtain any written complaint/statement from Jitender. He volunteered that he asked him but he stated that he was not well educated and he was also tensed at that time and was having injury on his forehead. He admitted that Jitender did not make his signature in the name of Jitender, but Volunteered that he made signature in the name of Golu as he was called by the name of Golu in the locality. He did not obtain statement of any witness regarding the fact that Jitender is also known by the name of Golu. He deposed that the Crime team officials tried to lift the finger prints and foot prints but they could not develop the same.
STATEMENT OF ACCUSED PERSONS
26. After completion of prosecution evidence, entire State Vs. Ajay & Another Page no. 17 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:41:39 +0530 18 incriminating material available on record was put to both the accused persons under Section 313 Cr.PC. They pleaded innocence and stated that they have been falsely implicated in the present case. They stated that the aforesaid matter was hyped by the media and in order to solve the present case, they have been falsely implicated and arrested in the present case. There was pressure upon the police to solve the present case. At the time of incident, they were not present at the spot. They have been falsely arrested by the police. They examined Sh. Lalji, father of accused Ajay as DW 1.
ARGUMENTS ON BEHALF OF Ld APP FOR THE STATE AND COUNSEL FOR THE COMPLAINANT
27. It is argued by Ld APP for the State that on the intervening night of 7/8-11-2018 at 3.30AM, both the accused persons committed murder of Yogesh. Accused Ajay gave beatings to deceased. When PW3 Jitender/Complainant tried to save deceased, accused Sagar threatened him and hit him on his head with butt of knife. Accused Ajay stabbed knife in the chest of Deceased. PW3 has deposed in court that he was with deceased on the intervening night of 7/8-11-2018 at 3.00AM and 3 boys came on motorcycle and attacked him. Presence of PW3/Jitender with deceased at the spot and sustaining of injuries by him at the State Vs. Ajay & Another Page no. 18 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:41:45 +0530 19 spot is not disputed by Ld. Defence Counsel. It is submitted that PW3 deposed that after he was attacked, he ran towards police station and met police on the way and they reached at the spot. He admitted his signature and thumb impression on his complaint Ex. PW3/A. The fact of meeting of PW3 with police and narrating incident to Police is corroborated with Rukka and by PW10 Ct. Sachin and PW22 Inspector Vipin.
27.1. It is submitted that PW22 deposed that PW3 made statement to him and put his signature on the complaint after admitting the complaint as correct. Even PW3 deposed that he knew both accused since his childhood. Name of both accused persons are mentioned in his complaint. There is no reason for PW3 for falsely implicating both accused persons and even no suggestion to this effect has been given by Ld. Defence counsel.
PW3 disclosed the incident in detail in his complaint and also disclosed in his complaint that accused persons stabbed knife in the chest of deceased and this fact is corroborated from Postmortem Report Ex PW12/A. It is submitted that PW3 also deposed that assailants attacked upon him. In his complaint, he disclosed that accused Sagar hit him on his head with butt of knife and the fact of injury on his head is corroborated with his MLC Ex. PW6/A. PW3 also admitted that he was the first informer regarding the incident till the morning the FIR was registered in the present case. He also admitted that he had shown the place of State Vs. Ajay & Another Page no. 19 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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incident to police and police prepared site plan at his instance.
27.2. It is submitted that both the accused persons have been arrested on the identification of PW3 and he has admitted his signature on Arrest memo's of accused persons. Even PW5 Laxmi (Mother of deceased) also deposed that deceased Yogesh went with PW3 on the day of incident and PW3 told her in PS that accused persons stabbed Yogesh. PW5 has proved enmity of both accused with deceased. She deposed that on 4/11/2018 both accused came to her house and threatened her to make Yogesh understand. She also deposed that some persons visited her and threatened her to withdraw the case and also told her that PW3 has been won over.
27.3. It is further argued that the DNA generated from the blood of deceased has matched with the DNA generated from blood on Knife found at spot, Chappals of both accused and clothes of PW3. The Rukka was sent at 7.30 AM from spot and FIR was registered at 7.48 AM. The FIR was registered promptly. There is no chance and opportunity with police for fabrication and concocting false story and falsely implicating accused in the present case. It is submitted that DW1/father of accused Ajay admitted that he and his son accused Ajay have no enmity with any police and he knew about the present case and arrest of State Vs. Ajay & Another Page no. 20 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:41:54 +0530 21 accused since 8/11/2018 but he did not make any complaint to any senior police official or before court for false implication of his son. It is submitted that there is no reason for police to falsely implicate both accused persons in murder case. There is no enmity of police with accused persons. It is submitted that since prosecution has proved its case beyond the pales of reasonable doubt, both the accused persons be convicted for the offence U/s 302/323/34 IPC.
ARGUMENTS ON BEHALF OF THE LD. DEFENCE COUNSEL
28. It is argued by the ld Defence Counsel that both the accused persons have been falsely implicated in the present case. No blood was detected on the foot of the accused persons and there were no foot marks in the house of accused Ajay. No chance print or foot prints were recovered from the house of accused Ajay. It is submitted that the recovery of pair of slippers from accused Ajay is disputed and planted by the investigation agency. PW21 Insp. Mohinder Singh/IO of this case in his evidence stated that the color of chappal recovered from accused Ajay is black colored with multicolored straps- make relaxo whereas the color of strap is orange of the pair of chappal recovered, which itself creates doubt. The chappals have been implanted upon the State Vs. Ajay & Another Page no. 21 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:41:59 +0530 22 accused persons.
28.1. It is further argued that on 08.11.2018, accused Ajay was arrested at 5:00 pm and he gave disclosure statement but no recovery of knife was effected at his instance on 08.11.2018 and no police remand was taken on 09.11.2018 before the recovery of knife. The said knife has been implanted upon the accused. No DNA was matched with the blood of the deceased Yogesh and the knife which was used for committing the murder. In the Biological report of FSL, no Allele Data Chart was prepared to show that blood detected from knife (which was used in commission of murder of deceased Yogesh) was Human or other one.
28.2. It is argued that there is no entry in Register No. 19 and 21 of malkhana on 09.11.2018 regarding deposit of knife (used in commission of alleged offence). Even there is no entry in Register No. 19 and 21 regarding taking the knife to the hospital for subsequent opinion or regarding sending the knife to FSL.
There are contradictions in the statement of MHC(M) and IO of this case regarding the deposit of knife in the malkhana on 09.11.2018.
28.3. It is further argued that as per the case of prosecution accused Ajay gave single blow on the chest of the deceased State Vs. Ajay & Another Page no. 22 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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Yogesh but there are two injuries on the body of the deceased and the injury no. 2 is not defined in the evidence of any witness. It is argued that there are contradictions regarding the arrest of accused. As per the statement of police witnesses, the accused Ajay was arrested from his house but as per the arrest memo, he was arrested from A-3 Block, Sultan Puri, Delhi. Family members of the accused persons were not cited as witnesses at the time of their arrest. There are no mobile details (CDR) of accused persons to show their presence at the spot. There were no fingerprints of the accused persons on the knives recovered in the present case. It is submitted that during the subsequent opinion on the knife recovered on 09.11.2018, the doctor did not notice any blood on the knife or the same is not mentioned in the application of the IO and the opinion of the doctor.
28.4. It is argued that that house of accused Ajay was near to the spot but police did not search them on 08.11.2018 and did not arrest the accused persons. That PW-5 (Laxmi) mother of deceased improved her version and she was confronted with her statement mark PW5/DA. She deposed that her statement was first time recorded on 22.01.2019. She admitted that no complaint was given to police between 08.11.2018 and 01.01.2019. It is prayed that since the prosecution has failed to prove any case against the accused persons, they be acquitted in the present case.
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FINDINGS AND ANALYSIS OF EVIDENCE
29. Heard Ld APP for the State, Ld Defence Counsel and perused the complete charge-sheet. It is a settled proposition of criminal law that prosecution is supposed to prove its case by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubt. The case of the prosecution has to fall or stand on its own legs and it can not drive any benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubt never shifts and always remains on the prosecution. It has been held in Sadhu Singh Vs State of Punjab 1997 (3) Crimes 55, that to bring home conviction, the prosecution has to establish its case beyond the pales of reasonable doubt by establishing an unbroken chain of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal.
30. The material witness of prosecution is PW 3 Jitender. He deposed that in the intervening night of 7/8.11.18, he met with Yogesh at about 3 a.m. at B-1 block, Sultan State Vs. Ajay & Another Page no. 24 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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Puri. Thereafter, he alongwith him went to B-3 block, Sultan Puri. In the meantime, three boys came there on motor cycle and attacked him and thereafter, ran towards Police station. He met with police officials at bus stop and thereafter, reached at the spot where the incident had taken place. Two knives, slippers and dead body of Yogesh was found at the spot. He made call at number 100 by taking mobile of someone. Thereafter, he went to PS. His signatures and thumb impression were taken at the PS. He had not seen the boys who had attacked him. He never joined the investigation in the present case after 08.11.2018.
30.1. Since the witness did not support the case of prosecution, he was cross-examined by the Ld. Addl PP. During cross-examination, he admitted his thumb impression and signatures on the complaint Ex.PW3/A. He denied all the other suggestions given by the Ld. Addl. PP on the basis of contents of his statement Ex.PW3/A. He admitted that the dead body of Yogesh was found in drain on the side of the wall of the park. He further admitted that he was the first person to give the information regarding the incident. He admitted the suggestion that he had shown the place of incident to the police and police had prepared site plan at his instance. He admitted that he was taken to SGM hospital for medical examination. He admitted his signatures on the arrest memo of accused persons Ex.PW3/C and Ex.PW3/D. He deposed that his signatures were obtained State Vs. Ajay & Another Page no. 25 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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by the police officers on the night of incident itself. He
admitted that he handed over one firozi colour pant and green jersy to the IO which was stained with the blood. He admitted the suggestion that when was helping the police officials to take out the blood stained body of Yogesh, his clothes were also stained with blood of Yogesh. He identified his clothes which were seized by the IO as Ex.P1.
30.2. During cross-examination by Ld. Defence counsel, he admitted the suggestion that his signatures were not obtained on the site-plan. He admitted the suggestion that pair of slippers, two knives which were lying at the spot were taken by police in their possession. He admitted the suggestion that his signatures and thumb impression were taken on some blank papers by the police. He further admitted the suggestion that three persons who came on the motor cycle had hit him and they also gave beatings to Yogesh. He did not tell Premwati that accused Sagar and Ajay will murder Yogesh on the day of incident.
31. Thus, PW-3 Jitender who is the sole eye witness of the incident as per the prosecution, has turned hostile and has not even partially supported the case of the prosecution. In Datar Singh v. State of Punjab (1975) 4 SCC 272, the Supreme Court reminded: "It is often difficult for Courts of law to arrive at the State Vs. Ajay & Another Page no. 26 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:42:23 +0530 27 real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve, the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crimp, of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the pieces of evidence on which the prosecution choses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole super- structure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of the prosecution case."
32. Thus, in view of the fact that the sole eye witness examined by the prosecution i.e. PW3 has not supported the case, the court needs some other reliable evidence on record in the form of testimony of some public witness to corroborate the case of the prosecution regarding the sequence of apprehension of accused and recovery effected. It is relevant to note that in the present case, there is no independent witness produced by the prosecution in support of its version of the manner of apprehension of accused State Vs. Ajay & Another Page no. 27 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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and recovery effected from the accused persons.
ARREST OF THE ACCUSED PERSONS
33. As per the case of prosecution, accused persons were apprehended at about 05:00 pm on 08.11.2018 from H.no. A- 3/376, Sultan Puri, Delhi. The arresting team comprised of PW15, 16 and 21. They were accompanied by complainant Jitender. PW 16 during his cross examination deposed that they reached at A- 3/376, Sultan Puri at about 5 p.m. The accused persons were arrested from outside the house. The documents were prepared outside the house. The distance between the spot and the house of accused Ajay was about 10 steps. He deposed that at the time of arrest of accused persons, family members of accused Ajay were present. He admitted that arrest memos of both accused persons do not bear the signatures of any of the family member of accused Ajay. PW21 during his cross examination deposed that after reaching PS from the hospital, he met complainant Jitender. Thereafter, complainant told that accused persons are present in their house. They left the police station at about 4:30 pm and reached at the house of accused Ajay at about 4:45 pm in police gypsy. The distance between the police station and house of accused Ajay is about 2 km. It took about 15 minutes to reach there. The accused persons were present in the house. He State Vs. Ajay & Another Page no. 28 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:42:33 +0530 29 alongwith ASI Naresh went inside the house of accused Ajay. Complainant was present outside the house of accused Ajay in front of the main gate. They did not search whether family members of accused persons were present in the house. They prepared all the documents regarding arrest of accused persons while sitting on the main gate of the house.
34. Hence, from the testimony of PW16 and PW21, it is evident that the accused persons were arrested from the house of Ajay which was very near to the place of incident and located in a residential colony. The arrest memo Ex.PW3/C and Ex.PW3/D in addition to the signatures of police officers, bears signature of complainant/ Jitender. However, PW3 during his cross examination deposed that his signatures were obtained by the police officers on the night of incident itself. The signatures of family members or neighbors were not taken by the IO on the arrest memos despite their presence in the house from where the accused persons were arrested and despite the area being residential area. It appears that the investigating agency did not make any sincere effort to join any public witness in the said proceeding.
State Vs. Ajay & Another Page no. 29 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:42:37 +0530 30 RECOVERY OF CHAPPALS
35. As per the case of prosecution, the chappals were recovered from the accused persons on 08.11.2018. PW 15 deposed that the IO seized the wearing chappals of the accused persons which were having blood stains. During his cross examination, he deposed that the pair of slippers were found in a room of the house. He admitted that the IO neither took the photographs of the chappals nor prepared the site plan of the place of recovery of the chappals. He deposed that complainant Jitender was present when the chappals were recovered.
36. PW 15 has deposed that the chappals were seized from one room in the house of accused Ajay. On the contrary, PW16 Ct Jitender deposed that the pair of slippers were seized and sealed at the spot. Further, PW 15 deposed that they used gloves for seizing the chappals. On the contrary, PW 21/IO deposed that he did not wear the gloves while picking the chappals, but, used a small piece of paper to pick the chappals.
The said paper was not seized or put in the polythene where the chappals were kept and seized. Both PW15, 16 and 21 admitted that the IO/PW21 did not call the forensic/crime team at the house of accused persons for taking the chance prints or the footprints. He did not ask complainant Jitender to sign on the seizure memo State Vs. Ajay & Another Page no. 30 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:42:43 +0530 31 of the chappals. PW21 admitted that he did not seize the clothes of the accused persons. He did not get videographed or photographed the place from where the aforesaid recovery or arrest was affected. They left the house of accused Ajay at about 6-6:15pm. He did not call the family members of the deceased to join the investigation at the time of arrest or recovery.
37. PW 15 deposed that the blood was present on the strap and upper portion of the chappals. On the contrary, PW21 deposed that the blood stains were found on the sole of the both the pairs of the chappals (nichle tale par). Some blood stains were also found on the strap of one of the pairs of chappals. PW21 admitted that he had not noted on the seizure memo as to on which pair of chappal, blood was found on its strap. He did not prepare the sketch of the pair of chappals. He also did not prepare the site plan of the place of arrest or recovery of pair of chappals.
38. On careful perusal of the testimony of PW15, PW16 and PW21, there are contradictions not only on the aspect of the place of recovery and manner of seizure of the chappals but also on the aspect of presence of blood on the chappals. It has come up in the testimony of these witnesses that complainant Jitender and family members of accused were present at the time of State Vs. Ajay & Another Page no. 31 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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recovery of chappals, however, the prosecution has failed to explain as to why the signatures of Jitender or any other public person was not taken on the seizure memo of chappals. This assumes more importance in view of the fact that the IO had obtained signatures of Jiteneder on the arrest memos which as per prosecution were also prepared at the same time.
39. It is submitted by the Ld APP that the DNA of the blood of the deceased has matched with the blood stains on the chappals. As per the FSL report, DNA profile of the blood found on the chappals was found to be matching with the DNA profile of the blood sample of the deceased. As discussed above, the recovery of the chappals from the house of accused persons on 08.11.2018 is doubtful. Moreso, the recovery of chappals with blood-stains on its straps has to be viewed in the light of various decisions of the Apex Court where such kind of recoveries have been held to be very weak evidence.
40. In Prabhoo vs. State of U.P., AIR 1963 SC 1113, recovery of a blood-stained shirt and a dhoti as also an axe on which human blood was detected was held to be extremely weak evidence. Similarly, in Narsinbhai Prajapati vs. Chhatrasinh Kanji, (1977) 4 SCC 600 (1) recovery of a blood-stained shirt and a dhoti as also the weapon of offence a dhariya was held to be State Vs. Ajay & Another Page no. 32 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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weak evidence. In Surjit Singh vs. State of Punjab, AIR 1994 SC 110 recovery of a watch stated to be that of deceased and a dagger stained with blood of the same group as that of the deceased was held to be weak evidence. In Mani v. State of Tamil Nadu, (2009) 17 SCC 273 recoveries of blood stained clothes and weapon of offence stained with blood were held to be weak recoveries. In Mustkeem @ Sirajudeen vs. State of Rajasthan, AIR 2011 SC 2769, the fact that traces of blood found on the deceased matched those found on the recovered weapons was held to be insufficient to arrive at the conclusion that the latter were used for the murder. Similarly in Abdulwahab Abdulmajid Baloch v. State of Gujarat, (2009) 11 SCC 625, it was held that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under section 302 IPC could be recorded.
41. In view of the aforesaid decisions coupled with the contradictions on the aspect of the place of recovery; manner of seizure of the chappals; presence of blood on the chappals and non joining of any independent witness including the complainant during the seizure of chappals, creates doubt about the recovery of the same from the accused persons.
State Vs. Ajay & Another Page no. 33 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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RECOVERY OF KNIFE
42. As per case of prosecution, the knife used to commit murder of Yogesh was recovered from ganda nala, Sultan Puri on 09.11.2018 at instance of accused Ajay. PW16 and PW21 accompanied the accused at the said place. PW21 deposed that he made DD entry on 09.11.2018 when he left for investigation, however, he does not remember the said DD entry number. They left the police station at about 7-7:15 am. The distance between the police station and place of recovery of knife was about 1.5 km. It took about 10-15 minutes to reach the said place. PW 21 deposed that no public persons were present at the time of recovery of knife. On the contrary PW 16 deposed that on 09.11.2018, IO asked the public persons to join the investigation but no one came forward, however, no notice was given to them on their refusal to join the investigation.
43. In Ritesh Chakarvarty vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150, the Hon'ble Supreme Court has deprecated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on the request of the police officials. In two other judgments pronounced in the cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 State Vs. Ajay & Another Page no. 34 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:43:04 +0530 35 (1) CLR 69, it has been observed by Hon'ble High Court that failure to proceed against the public person who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence. In the absence of any satisfactory and reliable reason forthcoming from the prosecution as to why the public persons were not included in the proceeding even after the apprehension of the accused, the case of the prosecution has become doubtful.
44. PW21 further admitted that he did not call the family members of the deceased and Jitender (complainant) at the time of recovery of knife. He did not lift chance prints from the knife. He did not call FSL/crime team at the time of recovery of the knife. He did not prepare the site plan of the place of recovery of knife. He also did not get videographed and photographed the place of the recovery of knife. He admitted the suggestion that there is overwriting on the seizure memo of knife Ex. PW15/J ( Seizure memo is Ex PW15/K). The knife was handed over by accused Ajay. He did not obtain the finger prints of accused Ajay to show that he had handed over knife to them.
45. From the testimony of PW21, it is evident that he neither joined any public witness at the time of recovery of knife State Vs. Ajay & Another Page no. 35 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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nor obtained the finger prints of accused Ajay to show that he had handed over knife to him. As held by the Privy Council in Pulkuri Kottaya & Ors. vs. Emperor, AIR 1947 PC 67 'fact discovered' within the meaning of section 27, Evidence Act embraces only two things, viz. the place from where the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
46. Therefore, even if it is assumed that the knife was recovered at the instance of the accused Ajay from the nala, it would, at the most, only go to show that a certain knife was lying in the forest area and the knowledge of the accused as to it. Such recovery of the knife at the instance of the accused Ajay does not at all connect him with the alleged offence. The recovered knife is not shown to have any chance print/finger print of the accused Ajay.
DEPOSIT OF KNIFE IN MALKHANA
47. PW21 has deposed that after recovery of knife at the instance of accused Ajay, he deposited the same in malkhana on 09.11.2018 itself. However, PW20, the concerned MHC(M) State Vs. Ajay & Another Page no. 36 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
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during his cross examination stated that no pulanda of the present case was deposited with him in the maalkhana on 09.11.2018. He deposed that the case property i.e. knife recovered was sent to FSL on 07.12.2018. The knife was sent to SGM hospital on 24- 25.11.2018. He admitted that there is no entry in the register no. 19 and 21 regarding sending of the said knife to hospital. He further admitted that there is no entry regarding deposit of aforesaid knife in the maalkhana after medical opinion by the doctor in SGMH. He admitted that in his statement dated 07.12.2018, he did not mention that on 09.11.2018, IO had handed over one sealed parcel to him.
48. PW 21 deposed that on 09.11.2018, he handed over pulanda of knife. He also handed over seizure of the knife to the MHC(M). He recorded the statement u/S 161 Cr.P.C. of MHC(M) HC Rakesh on 08.11.2018 and 09.11.2018. When the witness was asked to find out the statement u/S 161 Cr.P.C. of MHC(M) HC Rakesh, no such statement was found on record. He further deposed that on 25.11.2018, he had taken the knife Ex.P4 from the maalkhana. MHC(M) was present in the maalkhana. He did not sign register no. 19 and 21 at the time of taking the knife Ex.P4 from the maalkhana. He does not remember whether he had recorded the statement of MHC(M) regarding taking the knife from the maalkhana for taking subsequent opinion from the doctor concerned in the hospital. On 25.11.2018, he deposited knife State Vs. Ajay & Another Page no. 37 of 46 Digitally signed by KIRAN KIRAN GUPTA Date: GUPTA 2022.01.18 12:43:26 +0530 38 Ex.P4 in the maalkhana from the hospital. He does not remember whether he made entry in register no. 19 of maalkhana. He also do not remember whether MHC(M) had recorded the entry of the knife in the maalkhana on the said day. During the investigation exhibits remained with him. He did not deposit the exhibits in the FSL for examination.
49. As per testimony of PW20, there is no entry of deposit of knife recovered at the instance of accused Ajay on 09.11.2018 in register No. 19 of the malkhana. There is also no subsequent entry in registers when the said knife was sent to FSL and SGM hospital and consequently received back. Hence the recovery, deposit and subsequent opinion on the said knife is itself doubtful.
50. Further, as per the FSL report, no DNA profile could be detected on the knife recovered from the possession of the accused Ajay. The report of the concerned Doctor is also cryptic, as it is stated that "the injury as mentioned in the Post mortem report is possible with this knife or similar such knife".
State Vs. Ajay & Another Page no. 38 of 46
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39
MOTIVE
51. The prosecution has also failed to prove the motive behind the murder. In a case where the other circumstances have not been convincingly proved its becomes imperative for the prosecution to prove the motive for the crime as explained by the Supreme Court in Arjun Marik vs. State of Bihar; 1994 Supp (2) SCC 372 in the following words: "..........mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused, if, the involvement of the accused is otherwise established. But it has to be remembered that in incidents in which the only evidence available is circumstantial evidence, then in that event, the motive does assume importance, if, it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established circumstances along with the explanation of the accused, if any, exclude the reasonable possibility of anybody else being the perpetrator of the crime then the chain of evidence may be considered to show that within all human probability the crime must have been committed by the accused".
52. It is relevant to evaluate the testimony of the mother of deceased on this aspect. She in her statement under section 161 CrPC and examination in chief recorded in the court has stated State Vs. Ajay & Another Page no. 39 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:43:36 +0530 40 that both the accused persons came to her house on 04.11.2018 i.e few days before the incident and threatened her to make her son Yogesh understand otherwise, he would face the consequences. Her statement u/s 161 CrPC was recorded on 22.01.2019 and statement in the court on 03.05.2019. Admittedly, prior to this, the mother of deceased gave two complaints Ex PW5/A and Ex PW5/B in writing. In the said two complaints, she has not disclosed about the incident dated 04.11.2018. She has disclosed the said incident for the first time on 22.01.2019, which raises doubt about its authenticity. It seems that she has improved upon her statement subsequently. It is a settled canon of appreciation of evidence that a presumption cannot be raised against the accused either of fact or in evidence. Equally true is the rule that evidence must be read as it is available on record.
53. There is still another facet of this case which remains totally unexplained. As per statement of PW 10 and PW 22, they had reached the spot immediately after the incident. It was with their help that deceased was shifted to the Hospital. It is not understandable as to why no efforts were made to trace and arrest the accused persons, who were resident of the same area and incident took place at a distance of 10 steps from the house of accused Ajay. This is an important link which is missing in the case of the prosecution, as it would have given definite evidence in regard to the identity of the accused as well as would have made State Vs. Ajay & Another Page no. 40 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:43:41 +0530 41 it possible to arrest the accused persons at the earliest.
CONCLUSION
54. In the present case, the criminal law process was put in motion immediately after the offence was committed. It is reiterated that PW3, the complainant and sole eye witness did not support the case of prosecution at all. It is noted that there is no entry of the knife recovered at the instance of the accused in the register no.19 maintained in the malkhana. There is no entry in the registers maintained in the malkhana when the said knife was sent to FSL and SGM hospital and received back. Also, nothing has come up in the report of FSL. The opinion of the doctor is also cryptic as he has opined as "the injury as mentioned in the Post mortem report is possible with this knife or similar such knife".
55. It is noted that the recovery of blood stained chappals from the accused persons have not been proved convincingly by the prosecution as Ex.PW 15/A and Ex PW15/B (recovery memo of chappals) is not signed by any public witness whereas the recovery is claimed to be done from A-3/376, Sultan Puri, Delhi which is a public place and busy area. Also, as discussed (supra) there are material contradictions on the aspect of the place of recovery; manner of seizure of the chappals; presence of blood on State Vs. Ajay & Another Page no. 41 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:43:47 42 the chappals. There is also not a single witness/public witness on disclosure statement Ex.PW 15/E and Ex PW 15/F and pointing out memo Ex.PW15/G & H. Interestingly, the disclosure statements which were also recorded at the time of arrest at the house of accused Ajay, are typed statements and the remaining documents/memos are hand written. The arrest memo Ex.PW3/C and Ex PW3/D of the accused persons is also not signed by any public person except the complainant who had deposed that his signatures were obtained by the police officers on blank papers on the night of incident itself. No attempt appears to have been made by the PW 21/IO Insp. Mohinder to associate any member of the public to the arrest of the accused or recovery of his blood stained chappals. Considering the aforesaid facts and circumstances, the benefit of doubt arising out of such inefficient investigation, must be bestowed upon the accused.
56. In Harbir Singh v. Sheeshpal & Ors. (2016) SCC 418, it was observed that it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which State Vs. Ajay & Another Page no. 42 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:43:52 +0530 43 is favorable to the accused should be adopted.
57. It is settled law that if two views are possible, then the view which favours the accused should be adopted. The Apex Court in P. Satyanarayana Murthy v. The Dist. Inspector of Police and Ors. (2015) 10 SCC 152, has held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. Relevant para whereof is being reproduced hereinbelow:
"25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam MANU/SC/0564/2013: (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused".
58. In the case titled as Jose v. The SubInspector of State Vs. Ajay & Another Page no. 43 of 46 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.01.18 12:43:58 +0530 44 Police, Koyilandy and Ors.: (2016) 10 SCC 519, the Apex Court has held as under:
"53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true".
In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
59. An analysis of the evidence brought on record State Vs. Ajay & Another Page no. 44 of 46 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:44:03 +0530 45 reveals that the testimony of PW3 and PW5 is insufficient to prove the case against the accused beyond reasonable doubt. Moreover, the prosecution failed to prove the circumstances leading commission of this offence. Consequently, this Court is of the view that the prosecution has miserably failed to prove the case set out against the accused persons much less beyond all reasonable doubt.
60. In view of the aforesaid discussion and the material available on record, I am of the considered view that the prosecution has failed to establish the circumstances in which the accused persons alleged to have killed the deceased. The testimony of the witnesses examined by the prosecution is insufficient to prove the involvement of the accused persons in the incident. As the prosecution has failed to bring home the guilt of the accused Ajay and Sagar, they are hereby acquitted of the charge for the commission of offences punishable under Section 302/323/34 IPC.
61. The family members of deceased Yogesh are hereby referred to District Legal Services Authority, North West for consideration of suitable compensation amount.
62. Personal bond in terms of Section 437A Cr.P.C.
State Vs. Ajay & Another Page no. 45 of 46 Digitally signed by KIRAN KIRAN GUPTA Date: GUPTA 2022.01.18 12:44:08 +0530 46
furnished on behalf of the accused persons shall remain in force for a period of six months from today. The previous personal bond and surety bond, if any, of the accused persons are discharged. Their documents, if any, retained on record be released to them against acknowledgement.
63. The case properties are confiscated to State. If no appeal is preferred by the prosecution against the acquittal of the accused persons within the prescribed period of limitation, the case properties be disposed off as per rules.
File be consigned to Record Room after necessary compliance.
Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.01.18 12:44:17 +0530 ANNOUNCED THROUGH VC (KIRAN GUPTA) CISCO WEBEX ADDITIONAL DISTRICT JUDGE-03 ON 18.01.2022 NORTH WEST DISTRICT DELHI/18.01.2022 State Vs. Ajay & Another Page no. 46 of 46