Delhi District Court
State vs . Shashi Kumar @ Rahul Etc. on 19 December, 2016
-: 1 :-
IN THE COURT OF SH. RAKESH KUMARIII,
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
Unique Id. No. 02401R0496102010
SC No. 56949/2016
FIR No. 151/10
U/S 302/397/411/34 IPC
PS Janak Puri
State vs. Shashi Kumar @ Rahul etc.
JUDGMENT
1. Sl. No. of the case : 56949/2016
2. Date of Committal to Sessions : 11.10.2010
3. Received by this court on transfer : 12.03.2014
4. Name of the complainant : SI Ombir Singh
5. Date of commission of offence : 06.07.2010
6. Name and Parentage of accused : Raju @ Jadu S/o Radhey
Shyam, R/o A19, Gali No. 15,
Sita Puri, Dabri, New Delhi.
7. Offence complained of : 302/397/411/34 IPC
8. Offence charged : 302/397/411/34 IPC
9. Plea of guilt : Pleaded Not Guilty
10.Final order : Acquitted
11. Date on which order reserved : 19.12.2016
12. Date on which order announced : 19.12.2016
BRIEF REASONS FOR DECISION :
CASE OF THE PROSECUTION :
(1) Case of the prosecution as per the charge sheet is that on 07.07.2010, DD No. 3A was received by SI Ombir Singh regarding the admission FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 1 of 39 -: 2 :- and death of one person namely Vivek. After receiving the DD, SI Ombir alongwith Ct. Vishram reached at DDU Hospital and he collected the MLC No. 12818/10 dated 06.07.2010 of Vivek, who was declared brought dead by the doctor and SI Ombir searched for the eye witness but no eye witness was found in the hospital. SI Ombir saw the dead body and observed injury on the left leg below the knee, other injury on the same leg above the knee and one injury on the left wrist. SI Ombir deputed Ct. Vishram for the care of dead body and he reached at C2/401, Janak Puri and he found HC Rakesh, SHO of PS Janak Puri and members of crime team. SI Ombir also found blood spread on the ground outside the aforesaid house and he also found one black color shoe of left foot having blood stains. He also found blood on the ground in front of H. No.C2/401, Janak Puri and in front of feeder Pillar of BSES. He also found black color wallet (purse). The photographer of crime team took the photographs of the place of incident and he searched for the eye witness at the spot but he did not find any eye witness there. SI Ombir Singh prepared the rukka and same was handed over to HC Rakesh for the registration of the case and after registration of FIR, the investigation of the case was marked to Insp. Rakesh Ahuja. Insp. Rakesh Ahuja reached at the spot and inspected the place of incident and he lifted the exhibits/blood/blood stained earth control from the spot and all articles were seized. The dead body after the postmortem was handed over to his relatives. The FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 2 of 39 -: 3 :- accused was searched after taking the IMEI number of mobile phone and on 09.07.2010, accused Shashi Kumar @ Rahul was arrested from the entry gate of Uttam Nagar, Bus Terminal. On formal search of accused Shashi Kumar, one blood stained Easy Shop Card, HDFC Bank was recovered which was in the name of deceased Vivek Kumar. The disclosure statement of accused Shashi Kumar was recorded and he disclosed the involvement of one Raju @ Jaadu in the incident. He disclosed that on 06.07.2010, he alongwith Raju @ Jadu consumed liquor and at about 10.45 pm, at Pankha Road on Service Lane, they tried to rob one person by putting knife on his stomach but that person started resisting and during the scuffle, Raju @ Jadu inflicted injuries with knife to that person on his left thigh, injury below the knee and wrist and his phone and purse were taken out and to kill that person, his vain of wrist was cut. He further disclosed that he found Rs.350/, card and some documents and after taking out the money and bank card, he threw the purse there. He disclosed that he kept the bank card and money with him and mobile phone was given to Raju. He disclosed that at the same time, he also inflicted injury to one more person namely Mukesh with knife and he was also beaten with bat and knife was thrown in the bushes near drainage near Kakrola Mod. The clothes which the accused was wearing at the time of the incident were recovered at his instance. On 09.07.2010, ASI Jagat Kumar, Anti Extortion Cell, Crime Branch vide DD NO. 26B intimated about the FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 3 of 39 -: 4 :- arrest of accused Raju @ Jadu, u/s 41.1 Cr.PC and he made a disclosure statement in case FIR No. 151/10, u/s 302 IPC PS Janak Puri and mobile phone of Vivek was recovered. On 13.07.2010, the accused Raju @ Jadu was formally arrested and Insp. Rakesh Ahuja collected the kalandra, disclosure statement, seizure memo of mobile and copies of DD entry from Anti Extortion Cell and on 14.07.2010, PC remand of both the accused was taken and on 15.07.2010, on the pointing out of both the accused, knife with blood stains was recovered from the forest at Najafgarh Road, Kakrola. The knife was seized and sections 397/411/34 IPC were added and the exhibits were sent to FSL.
CHARGE: (2) After completion of investigation, charge sheet u/s 302/397/411/34 IPC was filed in the court and after compliance of Section 207 Cr.P.C., case was committed to Sessions. During the course of trial, the accused was charged for commission of offence, punishable under Section 302/397/411/34 IPC on 09.11.2010, to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE: (3) To prove its case, prosecution cited 34 witnesses and all the 34 witnesses were got examined followed by recording the statement of accused under 313 Cr.P.C. vide which accused claimed to be innocent and he did not opt to lead evidence in his defence.
FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 4 of 39 -: 5 :- Ld. APP for the State and Ld. Defence Counsel, have relied upon the following Judgments:
1. Prem Singh Vs. State 1996 Cri. LR 3604 (Delhi).
2. Roop Chand Vs. State of Haryana 1990 (1) CLR 69
3. Pawan Kumar Vs. Delhi Admn. 1989 Cr.L.J 127 Delhi.
4. Hem Raj Vs. State of Haryana AIR 2005 SC 2010
5. D.V. Shanmugham Vs. State of A.P. AIR 1997 SC 2658.
6. Massa Singh Vs. State of Punjab 2000 (2) CC Cases HC 11.
7. Chanan Singh Vs. State 1986 Cri. Rev. No. 720 (P & H) 94.
8. Gurbel Singh Vs. State of Punjab 1991 Cri. Rev. No. 504 (P&H).
9. Dhapat Vs. State of Punjab 2000 (1) CC Cases HC 52.
10. Sahib Singh Vs. State of Punjab AIR 1997 SC 2417
11. Vijay Kumar Vs. State of Rajasthan (2014) 3 Supreme Court Cases.
12. Mani Vs. State of Tamil Nadu JT (2008)1 Supreme Court 191.
13. Manthuri Laxmi Narsaiah Vs. State of Andhra Pradesh (2011) SCC 117.
14. Sharad Birdichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116
15. Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. 1989 Suppl. (2) Supreme Court Cases 706 FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 5 of 39 -: 6 :-
16. Shanta Bai & Ors. Vs. State of Maharashtra JT 2008 (3) SC 130
17. Sangili @ Sanganathan Vs. State of Tamil Nadu 2014 (8) LRC 64 (SC)
18. Upendra Pradhan Vs. State of Orrisa 2015 (3) LRC 265 (SC)
19. State of Gujarat Vs. Jayarajbhai Punjabhai Varu 2016 (5) LRC 82 (SC) (4) I have heard the arguments of Ld. Addl. P.P. for the state and Sh. Anil Kamboj, Ld. Counsel for the accused and perused the records carefully.
(5) At the onset, it would be appropriate to have a glance at the gist of the deposition of the witnesses examined by prosecution. (6) PW 1 Ram Lubhaya identified the dead body of his son Vivek. (7) PW 2 Vinod Kumar after noticing that one person was lying near a tree on 06.07.2010, informed the police at 100 number and also informed the relatives of the injured.
(8) PW 3 Sh. Rohit is the brother in law of deceased Vivek who received the call on 06.07.2010 from Vinod.
(9) PW 4 SI Sushil Kumar recorded the FIR Ex.PW 4/B. (10) PW 5 SI Mahesh Kumar prepared scaled site plan Ex.PW 5/A. (11) PW 6 HC Pramod was present on 09.07.2010 when Raju was arrested and interrogated.
(12) PW 7 Ct. Narender was present on 09.07.2010 when Raju was FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 6 of 39 -: 7 :- apprehended, arrested and interrogated.
(13) PW 8 ASI Som Prakash produced the PCR form in the court vide which the information was given regarding the incident at Pankha Road.
(14) PW 9 ASI Jagat Kumar apprehended accused Raju and he recorded his disclosure statement and prepared kalandra u/s 41.1 Cr.PC vide Ex.PW 9/A. (15) PW 10 HC Rajeev Kumar MHC(M) received and handed over certain parcels on 07.07.2010, 09.07.2010, 10.07.2010, 15.07.2010, 06.08.2010,19.08.2010, 03.08.2010 and 10.01.2012 and made an entry in the register.
(16) PW 11 SI Nirakar Kaushik was present with the police party when accused Shashi Kumar was apprehended and interrogated. (17) PW 12 HC Ratan Lal on 06.07.2010, lifted the injured and took him to DDU Hospital.
(18) PW 13 ASI Kuldeep Singh on 06.07.2010 prepared the crime scene report Ex.PW 13/A. (19) PW 14 HC Devender Kumar on 07.07.2010, took 14 photographs of the scene of crime.
(20) PW 15 Dr. Santosh Kumar alongwith Dr. B. N. Mishra conducted the postmortem on the dead body of Vivek on 07.07.2010. (21) PW 16 Dr. B.N. Mishra on 07.07.2010 conducted the postmortem alongwith Dr. Santosh Kumar on the dead body of Vivek.
FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 7 of 39 -: 8 :- (22) PW 17 Dr. Rajeev Tyagi on 06.07.2010 examined Vivek and declared him brought dead.
(23) PW 18 HC Naresh on 13.07.2010 was with Insp. Rakesh Ahuja when Raju was interrogated.
(24) PW 19 Ct. Geeta Channel Operator, CPCR, PHQ New Delhi, received an information regarding the injured who was lying at Pankha Road.
(25) PW 20 HC Rakesh Singh on 06.07.2010 alongwith Ct. Surender reached at the spot and saw the blood and he informed the SHO and on 07.07.2010, he took the rukka to the police station for registration of case.
(26) PW 21 W/Ct. Raj Kumari recorded DD No. 26B on 09.07.2010. (27) PW 22 Retired SI Ombir Singh on 07.07.2010, reached at DDU Hospital alongwith Ct. Vishram and collected the MLC of Vivek and from there, he reached at the spot.
(28) PW 23 HC Hans Kumar on 06.08.2010 received the case property from Crime Branch Nehru Place and handed over to MHC(M). (29) PW 24 Retired Ct. Sanjeev joined the investigation with the IO Insp.
Ombir Singh on 15.07.2010 and certain articles were got recovered by the accused Raju in his presence.
(30)PW 25 HC Ashok received a call from wireless operator on 15.07.2010 regarding lying of a person and accordingly, he made DD entry.
FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 8 of 39 -: 9 :- (31) PW 26 HC Rohtas Singh brought the PCR call dated 06.07.2010 in the court.
(32) PW 27 Ms. Sapna Rani produced the summoned record of DD No. 6 dated 09.07.2010 u/s 41.1 Cr.PC.
(33) PW 28 Ct. Manjeet Singh on 06.06.2010, was posted as Duty Constable in DDU Hospital and when Vivek was admitted in the hospital, he informed at PS Janak Puri.
(34) PW 29 Ct. Manoj joined the investigation alongwith the IO and he was present when Shashi Kumar was apprehended. (35) PW 30 Ct. Surender on 06.07.2010, received DD NO. 45A and he handed over the same to HC Rakesh.
(36) PW 31 W/HC Sunita received the call on 09.07.2010 regarding apprehension of accused Raju.
(37) PW 32 Ct. Vishram Meena alongwith SI Ombir reached at DDU Hospital on 07.07.2010 and obtained MLC of Vivek Kumar. (38) PW 33 Dr. Dhruv Sharma examined certain exhibits and prepared reports Ex.PW 33/A and Ex.PW 33/B. (39) PW 34 Insp. Rakesh Ahuja is the IO of the case. FINDINGS :
(40) The case of the prosecution is that on 06.07.2010, at about 10.45 PM, at Service Road, in front of house no. C2/401, Pankha Road, Delhi, accused Raju @ Jadoo along with Shashi Kumar @ Rahul committed the murder of Vivek by stabbing him and they also FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 9 of 39 -: 10 :- committed the robbery of purse containing an amount of Rs.350/, one HDFC Card, and some other cards and one mobile phone number 9958234397 having dual SIM Card belonging to Vivek and they both were charged of the commission of offence punishable under Section 302/397/411/34 IPC. Vide order dated 06.08.2011, passed by my Ld. Predecessor, accused Shashi Kumar @ Rahul was declared Juvenile as he was below 18 years of age and accused was directed to be produced before Juvenile Justice Board and trial of Raju @ Jadu was started in this court and to prove its case, the prosecution examined the following witnesses.
(41) PW 1 Ram Lubhaya identified the dead body of his son Vivek vide identification statement Ex.PW 1/A and after the postmortem, dead body was handed over to him for funeral vide Ex.PW 1/B. (42) PW 2 Vinod Kumar on 06.07.2010, at about 10.4511.00 pm, after taking his dinner came out from his house for a stroll and he noticed that one person was lying near a tree at the service road, at a distance of 1020 feet from his residence. He called the police at 100 number from his mobile no. 9312387255 and he was also informed by the injured to inform one of his relative at his mobile number and he gave the information. He stated that after some time, PCR officials reached at the spot and the relatives of the injured were also reached there and he was taken to hospital from the PCR van.
FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 10 of 39 -: 11 :- (43)PW 3 Sh. Rohit Kumar deposed that Vivek was his brother in law who used to reside at C1A/78C, Janak Puri, in a rented flat alongwith his wife. He stated that on 06.07.2010, it was his birthday and Vivek came at his residence and after taking meal, he left his residence at about 10.3510.40 pm for going to his flat on foot. He stated that at about 11.10 pm, when they were about to sleep, he received a call on his mobile and caller disclosed his name as Vinod Pasricha and the caller told him to reach at C2/401, Janak Puri and stated that Vivek has been stabbed by someone and he is lying here and within 23 minutes, he reached at that place and noticed that 23 police officials were lifting his brother in law Vivek and they were putting him inside the PCR Van. He followed the PCR van in his vehicle to DDU Hospital and his father, who accompanied the injured in PCR van was crying and informed him that doctors have declared Vivek as brought dead. He stated that he reached at his residence and he was told by the family members to visit the place of incident and when he reached at the spot, police team was inspecting the spot where Insp. Rakesh Ahuja met him and he asked about the belongings of Vivek and he stated that his brother in law was having one mobile no. 9871540771, ATM Card, some visiting cards and some amount. Thereafter, he left the spot and he identified the dead body of his brother in law at mortuary, DDU Hospital vide identification statement Ex.PW 3/A. FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 11 of 39 -: 12 :- This witness was cross examined at length and the relevant portion of the cross examination is as under:
"I was called by the police official at the PS at about 10.00 am on the very same day. I had also visited the PS at another occasion to collect the postmortem report. I do not remember the date when I received the postmortem report. After 7th, I did not contact with the police officials. After collecting the postmortem report, I did not meet the police officials. At the time when Vivek came at my residence to celebrate his birthday, I had normal talks with him. On previous occasions, I had noticed that Vivek used to keep a black purse with him and as and when, he used to take out his purse, I used to see the color of the purse. I cannot tell the make of the purse whether it was the branded purse or a local purse. I cannot tell the name of the company of the mobile phone which Vivek used to keep with him. The sim was of Airtel. I have no idea if it was a single sim or a dual sim or that Vivek was having some other sim."
(44) PW 4 SI Sushil Kumar was posted as duty officer at PS Janak Puri on 07.07.2010 and at about 12.15 in the night, Ct. Manjeet from DDU Hospital informed that one person namely Vivek has been admitted at DDU Hospital and he has been declared brought dead by the doctor and he recorded this information in the DD register vide Ex.Ex.PW 4/A. He deposed that on that day, at about 03.15 pm, he recorded the FIR on the basis of tehrir sent by SI Ombir through HC Rakesh and he proved the copy of FIR Ex.PW 4/B. (45)PW 5 SI Mahesh Kumar on 11.08.2010, on the request of Insp.
Rakesh Ahuja reached at the place of occurrence at Pankha Road and prepared the scaled site plan Ex.PW 5/A. FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 12 of 39 -: 13 :- (46) PW 6 HC Pramod deposed that on 09.07.2010 he was posted at Anti Extortion Cell and in the morning hour, one secret informer came at his office and met Ct. Narender and gave information that one accused wanted at PS Janak Puri would come at Dabri Mod and thereafter, a raiding party consisting of SI Arun Dev Nehra, SI Shiv Raj Tyagi, ASI Jagat, HC Sukhbir, HC Jai Prakash, HC Rajbir, HC Devender, Ct. Narender, Ct. Sandeep and himself was constituted and thereafter, they all went to Pankha Road. He depsoed that ASI Jagat, IO requested 45 passers by to join the raiding party but no one joined. He stated that at about 09.00 am, at the pointing out of secret informer, one person who was coming from Pankha Road side, was overpowered and ASI Jagat conducted the formal search of that person and on interrogation, he revealed his name as Raju @ Jadu and from the right pocket of his pant, one mobile phone Daxon having dual sim was recovered. He stated that on interrogation, accused Raju disclosed that in the night of 06.07.2010, he alongwith Shashi Kumar robbed one person. IO checked the IMEI number of the mobile phoe from PS Janak Puri and it was revealed that it was the looted property of case FIR No.151/10, PS Janak Puri and that mobile phone was seized vide memo Ex.PW 6/A and arrest memo and personal search memo Ex.PW 6/B and Ex.PW 6/C bears his signatures. He stated that IO recorded the disclosure statement of accused Raju @ Jadu vide Ex.PW 6/D and this witness also identified the mobile phone recovered from Raju as FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 13 of 39 -: 14 :- Ex.P8. This witness was cross examined at length and the relevant portion of the cross examination is as under:
"We reached at the spot at about 08.50 am. At that time, no shop was opened but public persons were passing through the spot. Again said, there was no shop. ASI Jagat Singh requested the public persons to join the raiding party. I do not know as to what was stated by those public persons for not joining the raiding party. I was present near ASI Jagat Singh when he was conducting the search of the accused. From the personal search of accused, an amount of Rs. 105/ was recovered. I do not remember if any other article was also recovered from the personal search. I do not know if mobile number was also got verified by ASI Jagat."
(47) PW 7 Ct. Narender deposed that on 09.07.2010, he was posted at Anti Extortion Cell and in the morning hours, one secret informer came at their office and met him and he gave information that one accused who is wanted in case FIR No. 151/10 of PS Janak Puri would come at Dabri Mod and thereafter, a raiding party was constituted and they reached at Pankha Road. He stated that at about 09.00 am, at the pointing out of secret informer, one person was apprehended and his name was revealed as Raju. He stated that ASI Jagat conducted the formal search of the accused and from the right pocket of his pant, one mobile phone Dexon having dual sim was recovered and on interrogation, Raju disclosed that in the night of 06.07.2010, he alongwith Shashi robbed one person. He stated that mobile phone was seized, arrest and personal search memos were prepared and disclosure FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 14 of 39 -: 15 :- statement was recorded in his presence. This witness was cross examined at length and the relevant portion of cross examination is as under:
" I did not inquire from the secret informer regarding his source. I do not remember the number of the government and private vehicle by which, we reached at the spot. IO had requested the public persons to join the raiding party but they did not join. I cannot tell the reason as to why public persons did not join the raiding party. First and foremost, his cursory search was taken. One mobile phone was recovered from his personal search. I do not remember as to what articles were recovered from the personal search of accused. There was sim inside the mobile but I do not remember whether it was one or two sims inside the mobile at that time."
(48)PW 8 ASI Som Prakash produced the PCR form Ex.PW 8/A in the court vide which the information was given regarding the incident at Pankha Road.
(49) PW 9 ASI Jagat Kumar deposed that on 09.07.2010, he was posted at Anti Extortion Cell, Crime Branch, R K Puram, New Delhi and at about 08.00 am, Ct. Narender alongwith one secret informer met him and stated that he has been informed by secret informer that one boy namely Raju would come to meet his friend at Dabri Mod and he can be arrested. The examination of chief of this witness is verbatim similar to that of PW 6 HC Pramod and PW 7 Ct. Narender. After the apprehension of accused Raju, he prepared kalandra u/s 41.1 Cr.PC vide Ex.PW 9/A and copy of DD No. 3 regarding having FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 15 of 39 -: 16 :- received secret information and their departure is Ex.PW 9/B. This witness was cross examined and the relevant portion is as under:
"From the personal search of accused, an amount of Rs. 105/, one wrist watch were recovered besides the mobile. There were two sims in the mobile at that time. One sim was of Airtel but I do not remember the name of the company of the other sim. We checked the number of both the sims and the mobile number. Firstly, we asked the mobile number from the accused and then, we made a call on that mobile number and that call came on the aforesaid mobile and after reaching at our office, the concerned service provider also confirmed the number. I do not remember at this moment, if call was made at both the numbers. No public persons signed on the memos".
(50) PW 10 HC Rajeev Kumar deposed that on 07.07.2010, he was posted at PS Janak Puri as MHC(M) and he received certain articles/exhibits on 07.07.2010, 09.07.2010, 10.07.2010, 15.07.2010, 06.08.2010,19.08.2010, 03.08.2010 and 10.01.2012 and made an entry in the register from Ex.PW 10/A to Ex.PW 10/F. (51) PW 11 SI Nirakar Kaushik deposed that on 09.07.2010, he was posted at Special Staff, West district and Insp. Raj Kumar directed him, HC Suresh, Ct. Devender and secret informer to reach at Uttam Nagar Terminal and accordingly, they reached there. There, 34 passers by were requested to join the raiding party but they did not join the raiding party. He deposed that at about 12.15 noon, one person aged about 1920 years was coming from Uttam Nagar Station side and Insp. Rakesh gave the signal to SI Ombir who apprehended that FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 16 of 39 -: 17 :- person and on interrogation, he revealed his name as Shashi Kumar. He stated that Insp. Rakesh conducted his personal search and from the right side pocket of his payjama one Easy Shop card of HDFC in the name of Vivek Kumar with blood stains was recovered and same was seized and taken into possession vide Ex.PW 11/A. He deposed that accused was arrested, his disclosure statement was recorded and he pointed out the place of incident and pointing out memo Ex.PW 11/B was prepared.
(52) PW 12 HC Ratan Lal deposed that on 06.07.2010, he was posted as Incharge, Power and at about 11.03 pm, they received a call from control room regarding one injured lying in front of C2/401, Janak Puri, Pankha Road, Delhi and accordingly, they reached there. He stated that one injured whose name was later revealed as Vivek met them and they took him to DDU Hospital and concerned doctor declared Vivek as brought dead and he gave this information to control room and he had brought the original record book containing the information and proved the same vide Ex.PW 12/A. (53) PW 13 SI Kuldeep Singh deposed that on 06.07.2010, he was posted at Mobile Crime Team as Incharge and on the basis of DD No. 3A, he alongwith the other officials of crime team reached at the spot and after inspection, prepared the crime scene report Ex.PW 13/A. (54)PW 14 HC Devender Kumar on 07.07.2010 was posted as photographer at Mobile Crime Team and on the basis of DD No. 3A, FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 17 of 39 -: 18 :- he alongwith other officers reached at the spot and took 14 photographs and negatives and photographs are collectively exhibited as Ex.PX.
(55)PW 15 Dr. Santosh Kumar deposed that on 07.07.2010, he alongwith Dr. B. N. Mishra conducted the postmortem on the dead body of Vivek and prepared the postmortem report Ex.PW 15/A. (56)PW 16 Dr. B.N. Mishra deposed that on 07.07.2010, he alongwith Dr. Santosh conducted the postmortem on the dead body of Vivek and prepared the postmortem report Ex.PW 15/A. (57)PW 17 Dr. Rajeev Tyagi deposed that on 06.07.2010, he was posted at DDU hospital in the department of Casualty and on that day, at about 11.30 pm, one patient namely Vivek was brought to the hospital and after examination, he declared Vivek as brought dead and he prepared the MLC Ex.PW 17/A. (58)PW 18 HC Naresh deposed that on 13.07.2010 he alongwith Insp. Rakesh Ahuja went to Crime Branch, R.K. Puram and there, ASI Jagat joined the investigation and thereafter, they all went to the court of ACMM, Dwarka where accused Raju @ Jadu was produced and he was interrogated by the IO and his disclosure statement was recorded and he was formally arrested.
(59)PW 19 Ct. Geeta Channel Operator, CPCR, PHQ New Delhi on 06.07.2010, received an information regarding the injured who was lying at Pankha Road and he produced the computer generated form of FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 18 of 39 -: 19 :- CPCR vide Ex.PW 19/A. (60)PW 20 HC Rakesh Singh deposed that on 06.07.2010, he received DD NO. 45A regarding one man who was lying unconscious at C 2/401 and he alongwith Ct. Surender reached there. He stated that he came to know that injured had already been taken by the PCR to the hospital. He narrated all these facts to SHO and after some time, SHO and crime team officials came at the spot and they inspected the place and completed their proceedings including taking the photographs. He stated that on 07.07.2010, at about 03.00 am, SI Ombir gave him original tehrir for getting the case registered and he went to PS for the registration of the case. He stated that he alongwith Insp. Rakesh Ahuja went to the place of incident and Incharge PCR Van was called by the IO and at his instance, site plan was prepared. He stated that IO lifted the blood and blood stained earth control and same were seized. He further stated that one left leg shoe of black color was also lying in front of house of C2/402, Janak Puri and same was also seized and one black color leather purse and one key bunch was also lying there and all the parcels were received and the case property was deposited in the maalkhana.
(61)PW 21 W/Ct. Raj Kumari recorded DD No. 26B on 09.07.2010 and she proved the DD Ex.PW 21/A. (62)PW 22 Retired SI Ombir Singh deposed that on 07.07.2010, after receiving DD No. 3A, he alongwith Ct. Vishram reached at DDU FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 19 of 39 -: 20 :- Hospital and collected the MLC of Vivek who was declared brought dead and saw the injury marks on the body of Vivek. He deposed that thereafter, he reached at the spot i.e. in front of H. No. C2/401, Pankha Road, Janak Puri and he found HC Rakesh, SHO of PS Janak Puri and members of crime team there. He stated that he found blood spread on the ground and found one black color shoe of left foot having blood stains. He stated that he also found blood on the ground, black color purse and one key ring and crime team photographer took the photographs of the place of incident and no eye witness was found present at the spot. He stated that he prepared rukka Ex.PW 22/A on the basis of DD NO. 3A and same was handed over to HC Rakesh for registration of the FIR. After the registration of the FIR, the investigation of the case was marked to Insp. Rakesh Ahuja and he reached at the spot and inspected the place of incident and blood spread on the ground was lifted with the help of gauze and kept in a plastic container. He stated that thereafter, he lifted blood stained earth and kept in a plastic container and all these articles were seized vide memo Ex.PW 22/B. He stated that shoe which was lying on the spot was also lifted and seized vide memo Ex.PW 22/C and key ring was seized vide memo Ex.pw 22/D. He further deposed that thereafter, he came back to the police station and the case property was deposited in the maalkhana by the IO. He stated that the dead body after postmortem was handed over to his relatives and pullandas handed FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 20 of 39 -: 21 :- over by the doctors were seized vide memo Ex. PW 22/E. He stated that on 09.07.2010, at around 11.00 am, IO called him regarding information that accused Shashi is coming to Uttam Nagar, Bus Stand and thereafter, the police team alongwith the secret informer reached there and accused Shashi was apprehended and one Easy Shop Card in the name of Vivek Kumar was recovered from his possession and photocopy of card is Ex.PW 22/F and same was seized vide memo Ex.PW 11/A. He stated that accused was arrested vide memo Ex.PW 22/G and personally searched vide memo Ex.PW 22/H and his disclosure statement Ex.PW 22J was recorded and Shashi disclosed about the involvement of one Raju @ Jadu and he also pointed out the place of incident Ex.PW 11/B. He deposed that on the next day i.e. 10.07.2010, accused led the police party to his house i.e. H. No. RZ 29, Gali NO. 4, Sitapuri, Dabri and he produced his clothes which he was wearing at the time of incident and the clothes were seized vide memo Ex.PW 22/K. He stated that on 15.07.2010, he again joined the investigation and he went to Kakrola drain alongwith both the accused and accused Raju got recovered a knife from the bushes and the sketch of same was prepared vide Ex.PW 22/L and same was seized vide memo Ex.PW 22/M and site plan of the recovery was also prepared vide Ex.PW 22/N. In the examination of this witness, shoes, knife, purse and bunch of key were produced and exhibited as Ex.P2, P1 and Ex.P3. This witness was cross examined at length and the relevant FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 21 of 39 -: 22 :- portion of the cross examination is as under:
"The witness was asked to go through the statement made to the IO on 15.07.2010 and the witness stated that it is not mentioned in the statement that IO made any effort to join the public witnesses. It is correct that consequent to the information disclosed by coaccused Shashi Kumar @ Rahul in his disclosure statement dated 09.07.2010, we the investigating agency had the knowledge that the knife was thrown/lying in the bushes near the kakrola mod, Ganda Nala. The knife was recovered on 15.07.2010. I do not know whether any attempt was made by the IO to recover the knife on 09.07.2010 till 15.07.2010. The crime team report was prepared in my presence. I was not the IO at that time. Again said, I was the IO at the time when crime report Ex.PW 13/A was prepared. When this report was prepared, no public witness was present. I do not remember whether any family member of the deceased was present there or not.
Q: I put it to you that in the DD No. 3A dated 07.07.2010 which was handed over to you, the address of the deceased is appearing as CZ, Pocket II, Plot no. 13, Janak Puri while in the scene of crime report, the address of the deceased is shown as C 1/A78C, Janak Puri, New Delhi. Explain from where did you get the later address? A: I do not know from where I got the address of C1/A78C, Janak Puri, New Delhi.
Q: I put it to you that in the scene of crime report, it is remarked that "IO stated that injured Vivek S/o Ram Lubhaye was sent to the hospital." Why did you not tell the crime team regarding the death of Vivek rather describing as injured? A: Crime team Incharge prepared the crime report Ex.PW 13/A and I do not know as to why he has not mentioned about the deceased Vivek as injured. Vol. I intimated the crime team that deceased Vivek was declared brought dead by the doctors."
(63) PW 23 HC Hans Kumar on 06.08.2010 received the case property FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 22 of 39 -: 23 :- from Crime Branch Nehru Place and handed over to MHC(M). (64)PW 24 Retired Ct. Sanjeev joined the investigation with the IO Insp. Ombir Singh and Insp. Rakesh Ahuja on 15.07.2010 and he deposed that they took both the accused to drain at Kakrola Mod and accused Raju got recovered a knife lying near the electricity pole from the bushes and the sketch of knife was prepared vide Ex.PW 22/L and seized vide memo Ex.PW 22/M. In the statement of this witness, knife was produced and same was exhibited as Ex.P1. This witness was cross examined and the relevant portion of the cross examination is as under:
"it is correct that no public person joined the investigation by the IO. The place of recovery is an open place and everybody can have an access. The distance between the scene of crime and the recovery of knife is around 10 km. We might have gone to Kakrola Mod in a government vehicle but I cannot tell the make of the vehicle. Again said, I do not remember how we went to Kakrola Mod."
(65)PW 25 HC Ashok deposed that on 15.07.2010, he was posted at PS Janak Puri and at around 11.00 pm, he received a call from wireless operator regarding lying of a person and accordingly, he made DD entry at Sr. No. 45A and copy of DD is Ex.PW 25/A. (66)PW 26 HC Rohtas Singh brought the PCR call/DD No.1291084 dated 06.07.2010 in the court and exhibited as Ex.PW 26/A. (67)PW 27 Ms. Sapna Rani produced the summoned record of DD No. 6 dated 09.07.2010 u/s 41.1 Cr.PC and copy of kalandra was exhibited as Ex.PW 27/A. FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 23 of 39 -: 24 :- (68)PW 28 Ct. Manjeet Singh deposed that on 06.06.2010 he was posted as Duty Constable in DDU Hospital and when Vivek was admitted in the hospital, he informed this incident at PS Janak Puri and in this regard, information was recorded vide DD No. 3A. (69)PW 29 Ct. Manoj joined the investigation alongwith the IO and he was present when Shashi Kumar was apprehended on 09.07.2010. He stated that on 10.07.2010, he again joined the investigation and accused Shashi Kumar led to his house from where, his clothes which he was wearing at the time, were recovered.
(70)PW 30 Ct. Surender on 06.07.2010, received DD NO. 45A and he handed over the same to HC Rakesh.
(71)PW 31 W/HC Sunita received the call on 09.07.2010 regarding the apprehension of accused Raju and entry was made in DD NO. 26B and copy of same were handed over to the IO by the concerned official. (72)PW 32 Ct. Vishram Meena alongwith SI Ombir reached at DDU Hospital on 07.07.2010 and obtained MLC of Vivek Kumar. (73)PW 33 Dr. Dhruv Sharma examined certain exhibits and prepared reports Ex.PW 33/A and Ex.PW 33/B. (74)PW 34 Insp. Rakesh Ahuja is the IO of the case who deposed that on 07.07.2010, the investigation was marked to him and he received the FIR and reached at the spot and discussed the matter with earlier IO SI Ombir. He stated that he prepared the site plan Ex.PW 34/A at the instance of HC Ratan Lal and collected various exhibits which FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 24 of 39 -: 25 :- were lying at the spot and same were seized vide preparing seizure memos. He stated that he went to DDU Hospital where he prepared the inquest report Ex.PW 34/B and he moved an application for conducting postmortem vide application Ex.PW 34/C and after the postmortem, the dead body was handed over to his relatives and doctor handed over certain articles and sample seals which were seized vide memo Ex.PW 22/E. He further deposed that on 08.07.2010, he received a secret information that Shashi Kumar @ Rahul and Raju @ Jadu were the persons who committed the offence. On 09.07.2010, he received the information that accused Shashi Kumar would come at Uttam Nagar, Bus Terminal and where with the staff, accused Shashi Kumar was arrested and from his possession, HDFC Easy Shop Card was recovered and the same was seized and accused was interrogated. He deposed that on 10.07.2010, accused Shashi Kumar led them to his house from where, his blood stained clothes were recovered which were seized vide seizure memo Ex.PW 22/K. He stated that on 33.07.2010, accused Raju @ Jadu was produced in the court of ACMM, Dwarka and an application Ex.PW 34/D for his interrogation and formal arrest was moved and he was arrested vide memo Ex.PW 34/E. On 14.07.2010, he obtained the PC remand of Raju vide application ex.PW 34/F and on 15.07.2010, both the accused led them to Kakrola from where, the weapon of offence i.e. knife was recovered and its sketch was prepared and same was seized vide seizure memo FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 25 of 39 -: 26 :- Ex.PW 22/M. He prepared the site plan of the place of recovery of knife vide site plan Ex.PW 22/N and he also moved an application for subsequent opinion regarding the injuries after the recovery of weapon of offence vide his request Ex.PW 34/G and doctor gave his subsequent opinion vide Ex.PW 34/H. He stated that mobile phone was collected from the crime Branch and he also collected the PCR forms and exhibits were sent to FSL for obtaining the opinion of expert. He stated that he also collected the CDR pertaining to mobile no. 9879540971 which was used by the deceased from 01.07.2010 to 07.07.2010 vide certified copy of CDR Ex.PW 34/J. As per the record, the said number was alloted to Dinesh Kumar and during the investigation, he came to know that Dinesh Kumar was the relative of deceased and he had given his sim card to deceased Vivek. During his examination, the clothes of accused and clothes of deceased were shown to the witness and same were exhibited as Ex.P4 and P5 and easy shop card is exhibited as Ex.P6. This witness was cross examined at length and the relevant portion of cross examination is as under:
"The IMEI number of the deceased mobile was not the first lead of this case. Recovery of the dead body is the first lead of the case. Q: Is it correct that the information regarding the IMEI number (358834020149142) of the deceased was provided by one Rohit Kumar was happened to be the brother of the deceased whose statement u/s 161 Cr. PC was recorded by IO on 07.07.2010.
A: As far as I know, the IMEI number was not provided by Sh. Rohit Kumar.
FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 26 of 39 -: 27 :- It is correct that statement of Rohit u/s 161 Cr.PC mark A was recorded by me. (Confronted with statement of Rohit mark A from point A to A1 wherein it is so recorded). I did not collect any bill or invoice relating to the said IMEI number from Sh. Rohit Kumar.
Q: is it correct that IMEI number appearing in the CDR Ex.PW 34/J (358834020149140) is different from the one alleging to be looted mobile (358834020149142)?
A: It is correct.
It is correct that the details of FIR such as FIR number etc. are not referred in the inquest paper Ex.PW 34/B. It is correct that in my application for conducting the postmortem Ex.PW 34/C, the column provided for total number of inquest papers are blank. I do not remember the exact date for sending the FIR to the concerned MM but the same was sent immediately after registration. It is correct that I also collected the CDR from the office of Airtel pertaining to mobile number 9871540971 which was being used by the deceased, from the duration of 01.07.2010 to 07.07.2010 vide certified copy of CDR Ex.PW 34/J which runs into 8 pages was not mentioned in the charge sheet. It is wrong to suggest that these facts are not mentioned in the charge sheet as no investigation was carried out by me with regard to the above mentioned fact as I had become functus officio on 07.09.2010 by putting my signatures on the charge sheet. It is wrong to suggest that despite having knowledge of the fact, consequent to the disclosure statement of accused Shashi Kumar @ Rahul Ex.PW 22/J that the knife was thrown/lying in the bushes near Kakrola Mod, Ganda Nala, I intentionally did not make any effort to recover the same till 15.07.2010."
(75) From the above discussion, it is clear that there is no eye witness to the incident and case is based upon the circumstantial evidence and the recovery of certain articles from the accused persons including the FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 27 of 39 -: 28 :- knife.
CONCLUSION: (76)First and foremost thing is that prosecution wants to connect the accused Raju @ Jadu with the recovery of mobile phone make Daxon with dual sim which was allegedly recovered from Raju @ Jadu which is exhibited as Ex.PA. This phone was neither shown to PW 2 Vinod Kumar who is the real brotherinlaw of the deceased nor the ownership of the same was proved by the prosecution. So much so, the IO failed to connect the said mobile with the deceased in any manner. At the time of recovery, no independent witness was joined. Photocopy of seizure memo of mobile phone has been exhibited as Ex.PW 6/A and the arrest memo and personal search memo Ex.PW 6/B and Ex.PW 6/C and disclosure statement Ex.PW 6/D. These exhibits are the photocopies of kalandra u/s 41.1 Cr.PC dated 09.07.2010 vide DD No. 6. The original record was neither summoned nor shown to the court at the time of recording statement of PW 6. Thus the documents referred above cannot be read in evidence. (77) Second point for consideration is the alleged recovery of Easy Shop Card of HDFC Bank from Shashi @ Rahul. PW 11 deposed that the said card was recovered from the right pocket of payjama of accused and the same was valid upto 16.10.2015 and the name of Vivek Kumar was mentioned on that card and it had blood stains. The prosecution failed to examine any witness from HDFC Bank to connect the said FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 28 of 39 -: 29 :- card with the deceased. Mere mentioning the name on the card is not sufficient to connect the same with the deceased. More so, no public person joined the investigation at the time of recovery and it is not sufficient to say that 34 persons were asked to join the raiding party. Their names and addresses were not recorded nor any notice was given to them for their refusal in joining the legal proceedings. The accused was arrested from the crowded place of Uttam Nagar Metro station. (78)From the statements of above mentioned witnesses it is clear that public witnesses were present when the alleged recoveries were made and when the accused persons were arrested. With regard to section 27 of Evidence Act, what is important is discovery of material object and the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of offence. What is admissible u/s 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. The prosecution has failed to establish that the alleged recovered knife was the same knife which was used in the murder of Vivek Kumar. More so, the recovery of knife is doubtful. No steps were taken by the IO to join public persons in the investigation and no action was taken against the public persons who had refused to participate in the investigation. There is no FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 29 of 39 -: 30 :- plausible explanation from the side of the prosecution for nonjoining the independent witnesses at the time of recovery or arrest in such type of serious cases. This casts doubt about sincere efforts made by the Investigating Officer to join independent witnesses. In case of PREM SINGH VS. STATE 1996 Cri. LR3604 (DELHI), it has been observed as under: "Kalam Singh has to admit that at the time of arrest and recovery of knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalan Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7:30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 30 of 39 -: 31 :- number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
(79) Reference can be made to ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable. Reference can also be made to PAWAN KUMAR VS. DLEHI ADMN. 1989 CR. L.J 127 DELHI.
(80)In the case of "Hem Raj Vs State of Haryana" AIR 2005 SC 2010, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 31 of 39 -: 32 :- witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not given rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
(81)In the case of "D.V.Shanmugham Vs State of A.P" AIR 1997 SC 2658", it has been observed as under: "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation, the prosecution case has to be scrutinized with more care and caution".
(82)In the case of "Massa Singh Vs State of Punjab" 2000 (2) CC Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under:
FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 32 of 39 -: 33 :- "The recovery has been effected from a public place. The investigating officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
(83)In the case of "Chanan Singh Vs State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought. (84)In the cases of "Gurbel Singh Vs State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit .of doubt.In the case of "Sahib Singh Vs State of Punjab" AIR 1997 SC 2417, it has been held as under: "Having gone through the record, we find much substance in each of the above contentions.
Before conducting a search, the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 33 of 39 -: 34 :- not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities, the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, if would affect the weight of evidence of the Police Officer, though not its admissibility." (85) Third point for consideration is that deceased left the house of his brother in law Vinod Kumar PW 3 after taking dinner and when PW 3 was called in the witness box by the prosecution, the shoes, card, mobile, purse, bunch of keys and certain documents were not shown to this witness for its identification. Even the clothes of deceased were not shown to this witness. So, the above said articles are not proved as per the evidence act and it is held by Hon'ble Apex Cout that mere putting an exhibit mark on the articles does not mean that the document has been proved.
(86) Fourth point for consideration is the postmortem report prepared by Dr. B.N. Mishra and Dr. Santosh Kumar. Dr. B.N. Mishra was FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 34 of 39 -: 35 :- examined as PW 16 and he was again recalled under section 311 Cr.PC on 30.07.2015 and a very particular question was put in cross examination which is as under:
"Can you please refer that document of inquest papers from which you have derived the knowledge that there were more than one accused persons involved in the alleged incident as you mentioned at pt. A in the postmortem report already exhibited as Ex.PW 15/A. In reply to this question, he deposed that he did not see any document for giving the report but the information was furnished by the IO."
It clearly shows that the doctor prepared the postmortem report on the directions of IO and further more he had given subsequent opinion regarding the weapon of offence Ex.PW 34/H, which was prepared about 26 days after the incident.
(87) Fifth point for consideration is the residential address of accused Raju. The case of the prosecution is that he led the police party to his house no. RZ29, Gali No. 24, Sita Puri, Dabri from where he got recovered his clothes which were seized vide memo Ex. PW 22/K whereas the address of the accused in challan is mentioned as RZA 19, Gali No. 15, Sita Puri, Dabri. Same address is mentioned in personal search memo of Raju which is Ex.PW 6/C and arrest memo Ex.PW 6/B. Thus, the recovery of clothes of accused Raju is doubtful. (88) PW 25 HC Ashok proved DD No. 45A Ex.PW 25/A and he disclosed that on 15.07.2010, he received a call from wireless operator that one person is lying outside H. No. C2/401, Pankha Road, janak Puri Delhi. The relevant entry was made at serial no. 45A. This witness has FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 35 of 39 -: 36 :- changed the date of incident from 06.07.2010 to 15.07.2010. (89) The case in hand is based on circumstantial evidence as nobody has witnessed the occurrence. It is held by Hon'ble Supreme Court in case titled as Vijay Kumar Vs. State of Rajasthan (2014) 3 Supreme Court Cases that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence and the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. It is further held that even assuming it to be true that recovery of certain incriminating articles was made at the instance of accused, that by itself is not sufficient to form basis of conviction.
(90)It is held by Hon'ble Apex Court in so many cases that the discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. Reference can be made to Mani Vs. State of Tamil Nadu JT (2008)1 Supreme Court 191. (91)In Manthuri Laxmi Narsaiah vs. State of Andhra Pradesh(2011)14SCC117 Hon'ble Supreme Court has held that it is by now well settled that in a case related to circumstantial evidence, FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 36 of 39 -: 37 :- the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof.
(92)In Sharad Birdichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence, the following features are required to be complied:
(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved and;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of accused and must show that in all human probability, the act must have been done by the accused. Reference can be made to Padala Veera Reddy Vs. State of Andhra Pradesh and Others 1989 Supp. (2) Supreme Court Cases 706 and Shanta Bai and Others Vs. State of Maharashtra JT 2008 (3) Supreme Court 130.
FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 37 of 39 -: 38 :- (93)After examining the evidence by the prosecution, it is clear that evidence is circumstantial in nature and the most important circumstances which the prosecution has relied against the accused is the recovery of knife, mobile, card and clothes but from the above discussion, it is clear that recovery is highly doubtful. The facts are neither established nor consistent. The recovery from every angle is doubtful and the prosecution has failed to prove that in all human probability, the murder has been committed by the accused. (94) In Sangili @ Sanganathan Vs. State of Tamil Nadu 2014 (8) LRC 64 (SC), the Hon'ble Supreme Court has observed that neither last seen evidence established nor any motive has been proved and except so called recoveries, there is no other circumstances worth the name which has been proved against the appellant. Not only chain of events is incomplete, it becomes difficult to convict appellant on the basis of such recovery and suspicion however strong cannot be a substitute for proof.
In Upendra Pradhan Vs. State of Orrisa 2015 (3) LRC 265 (SC), it is held by Hon'ble Supreme Court that where there are two views which can be culled out from perusal of evidence and application of law, view which favours accused should be taken.
In state of Gujarat Vs. Jayarajbhai Punjabhai Varu 2016 (5) LRC 82(SC), it is held by Hon'ble Supreme Court that prosecution has to prove the guilt of accused beyond all reasonable doubt and if two FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 38 of 39 -: 39 :- views are possible on evidence produced in the case, one pointing to the guilt of accused and other towards his innocence, the view which is favourable to the accused should be adopted. (95) Keeping in view the facts and circumstances of the case, the court is of the considered opinion that the prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt. Therefore, the accused namely Raju @ Jadu is acquitted for the offences u/s 302/397/411 IPC.
Announced in the open court today i.e. 19th December, 2016.
(Rakesh KumarIII) Additional Sessions Judge03, West DIistrict, Delhi.
FIR No. 151/10 State vs. Shashi Kumar @ Rahul etc. 39 of 39