Delhi District Court
State vs Sandeep @ Muglee on 31 August, 2019
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE:
SC No.1936/16
FIR No.32/2010
PS : Lajpat Nagar
State Versus Sandeep @ Muglee
S/o Shri Dadwa
R/o Village Sarha
PS Kalingan, Post Office
Naraini, District Banda,
Uttar Pradesh
____________________________________________________
Date of Institution : 29.05.2010
Date of transfer of the case
to this court : 06.11.2017
Date of arguments : 10.08.2018
Date of judgment : 31.08.2019
JUDGMENT
1. As per case of prosecution, on 02.02.2010, Duty Officer HC Gurmehar Singh handed over original rukka to IO Inspector Sandeep Ghai (PW20) sent by SI Ram Singh, InCharage, Police Post Sriniwas Puri and copy of computerized copy of present case for further investigation. As per the contents of rukka, SI Ram Niwas was investigating FIR No.50/10 under Section 25 Arms Act Police Station Amar Colony and on 02.02.2010, while he was interrogating the SC No.1936/16 Page 1 of 24 accused Sandeep @ Muglee in the presence of Ct. Roshan and Ct. Vinod, he disclosed that he alongwith his associates Guddu and Rajmani @ Kalia has committed the offence of the present FIR. IO called crime team for further investigation. SI Ram Niwas also handed over arrest papers of accused of case FIR No.20/2010 and he also handed over copy of FIR No.15/2010 vide which coaccused persons namely Guddu and Rajmani @ Kali were arrested. IO carried out further investigation and after completion of investigation, he filed chargesheet in the present case.
2. Accused was found involved in the commission of offence in the case and he was chargesheeted to face trial for committing the offence punishable under section 302//201/120B read with section 34 of the Indian Penal Code 1860 (in short "IPC").
3. Accused on his appearance, before the court of learned Metropolitan Magistrate, was supplied copy of chargesheet and complete set of documents and thus, compliance of section 207 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") was made.
4. As the offence under section 302 IPC is exclusively triable by the Court of Sessions, therefore, the case was committed to the Court of Sessions for trial in accordance with law.
5. Prima facie, sufficient material was found to frame charge SC No.1936/16 Page 2 of 24 against accused for offences punishable under section 302/201 IPC. Therefore, charge for the said offences was framed against accused on 02.12.2011, to which he pleaded not guilty and claimed trial.
6. In order to bring home the guilt against accused, prosecution has examined as many as 21 witnesses in all. The details of which are given as under :
(a) PW1 HC Gur Mehar Singh, duty officer, formal witness of the prosecution. He has proved on record DD No.12A vide Ex. PW 1/A, his endorsement on rukka vide Ex. PW1/B and DD No.13A vide Ex. PW1/C.
(b) PW2 Ct. Roshan has joined the investigation of case FIR No.50/10 and he has proved on record the arrest memo and personal search memo of accused Sandeep @ Muglee, sketch of the knife and seizure memo of knife vide Ex. PW2/C, Ex. PW2/D, Ex. PW 2/A and Ex. PW2/B respectively. He also proved on record the disclosure statement of accused Sandeep @ Muglee vide Ex. PW 2/E.
(c) PW3 Ct. Amit Kumar has joined the investigation of the present case with IO Inspector Sandeep Ghai. He has proved on record the seizure memo of parcels of Department of Forensic Medicine vide Ex. PW3/A and seizure memo of sealed parcel SC No.1936/16 Page 3 of 24 handed over by Dr. Anupma Raini to IO vide memo Ex. PW3/B.
(d) PW4 Ct. Sanjeev has joined with the investigation of case with IO Ishwar Singh. He has proved on record the arrest memos vide Ex. PW4/A to Ex. PW4/C respectively, their arrest memos vide Ex. PW4/D to Ex. PW4/F respectively, their disclosure statement vide Ex. PW4/G to Ex. PW4/I, pointing out memos vide Ex. PW4/J to Ex. PW4/L respectively.
(e) PW5 Ct. Vinod Kumar has joined investigation with SI Ram Niwas and has proved on record disclosure statement of accused Sandeep vide Ex. PW5/A, pointing out memo Ex. PW5/B and his personal search memo vide Ex. PW5/C, rukka Ex. PW5/D.
(f) PW6 HC Ashwani Kumar has joined the investigation with IO Inspector Sandeep Ghai.
(g) PW7 SI Satish Kumar has deposed that he took accused Sandeep @ Muglee, Guddu and Rajmani @ Kalia to AIIMS Hospital in the department of forensic medicines for their medical examination. After medical examination, Dr. Kamlesh handed over three sealed parcels to him. He returned back to Police Station and handed over the said parcels to IO. IO prepared seizure memo in this regard vide Ex. PW7/A. SC No.1936/16 Page 4 of 24
(h) PW8 SI Ishwar Singh has joined the investigation of this case and has deposed on the same lines as deposed by PW4 Ct. Sanjeev.
(i) PW9 HC Uday Bir is the photographer of the crime team. He has proved on record the photographs vide Ex. P1 to P4 and negatives vide Ex. PW5 to P8.
(j) PW10 SI Vijay Pal Singh Kasana, InCharge of Mobile Crime Team. He has proved his report vide Ex. PW10/A.
(k) PW11 Inspector Mahesh Kumar is formal witness of the prosecution. He has proved on record scaled site plan vide Ex. PW 11/A.
(l) PW12 SI Sukhvinder Singh has deposed that on 02.02.2010, he apprehended the accused Sandeep and one buttondar knife was recovered from his possession. He prepared sketch of the knife vide Ex. PW12/A and seizure memo Ex. PW12/B and thereafter, he handed over all the documents, sealed pullanda and accused to SI Ram Niwas who conducted further proceedings.
(m) PW13 Dr. Kamlesh Kumar, Junior Resident, FMT, Department of Forensic Medicines, AIIMS, New Delhi, has proved on record the MLC of accused Raj Mani @ Kalia vide Ex. PW13/A, of SC No.1936/16 Page 5 of 24 Guddu vide Ex. PW13/B and of accused Sandeep vide Ex. PW 13/C.
(n) PW14 Dr. Anuraj Jain, Dental Surgeon, Safdarjung Hospital, has deposed that on 23.04.2010, a medical board was constituted consisting of himself, Dr. R. Chandra and Dr. M.K. Wahi for age determination of Rajmani @ Kali and after examination, they opined that age of said Rajmani was more than 18 years and less than 20 years. He has proved on record their detailed report vide Ex. PW 14/A.
(o) PW15 Dr. Ranjan Chandra, Safdarjung Hospital, has deposed that on 23.04.2010, a medical board was constituted consisting of himself, Dr. Anurag Jain and Dr. M.K. Wahi for age determination of Rajmani @ Kali and after examination, they opined that age of said Rajmani was more than 18 years and less than 20 years. He has proved on record their detailed report vide Ex. PW 14/A and Xray report vide Ex. PW15/A.
(p) PW16 Dr. T. Millo, Additional Professor, Department of Forensic Medicines, AIIMS, Delhi has proved on record the postmortem report vide Ex. PW16/A, their reply to the questionnaire of IO vide Ex. PW16/B and anatomical report vide Ex. PW16/C, memo regarding handing over of items to the IO vide Ex. PW16/D and memo regarding DNA Finger Printing for identification and sex SC No.1936/16 Page 6 of 24 determination vide Ex. PW16/E.
(q) PW17 Dr. Sanjeev Lalwani, Additional Professor, Department of Forensic Medicines, AIIMS, New Delhi has deposed on the same lines as deposed by PW16 Dr. T. Millo.
(r) PW18 ASI Bualal has deposed that on 11.01.2010, he arrested the accused of case FIR No.15/10 PS Amar Colony namely Rajmani @ Kalia and Guddu.
(s) PW18 Dr. Anupuma Raina, Scientist, AIIMS, New Delhi has supported the version of PW16 Dr. T. Millo and PW17 Dr. Sanjeev Lalwani. He has proved on record the proceedings vide Ex. PW18/A, genotyping report vide Ex. PW18/B, genotyping graph vide Ex. PW 18/C1 to Ex. PW18/C3 and DNA profiling report vide Ex. PW18/D.
(t) PW19 SI Ram Niwas has deposed that he was InCharge, Police Post, Sri Niwaspuri of Police Station Amar Colony and has supported the version of PW5 Ct. Vinod Kumar and PW6 HC Ashwani Kumar. He has proved on record seizure memo of skeleton vide Ex. PW19/A and site plan Ex. PW19/B. He has also proved on record the case properties vide Ex. P1 to P6.
(u) PW20 Inspector Sandeep Ghai is the IO of the case, who carried out the investigation at various stages, recorded the SC No.1936/16 Page 7 of 24 statement of witnesses and has filed the challan after completion of investigation.
(v) PW21 Dr. M.K. Wahi, Professor, Vardhman Mahavir Medical College, Safdarjung Hospital, New Delhi has supported the version of PW14 Dr. Anuraj Jain.
(w) Accused has admitted the FSL reports dated 26.10.19 and 29.10.10 vide Ex. A1 to A3.
Thereafter, prosecution evidence was closed.
7. On conclusion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded, wherein all incriminating material/circumstances were put to him, to which he claimed innocence and alleged false implication.
8. Accused opted not to lead evidence in his defence. Hence, defence evidence was closed and the matter was reserved for final arguments.
9. I have heard and considered the submissions advanced by Shri M. Zafar Khan, learned Additional Public Prosecutor for State and Ms. Harshita, learned Amicus Curiae for accused and carefully perused the record of the case. I have also gone through the testimony of the prosecution witnesses and the documents proved by SC No.1936/16 Page 8 of 24 them during their deposition.
10. Learned legal aid counsel for accused has argued that the present case is a case of misuse of police power and the investigating authorities. She also argued that the accused was arrested on the allegation of having a knife under the Arms Act near Central School, Andrews Ganj and that it is the case of the prosecution that he himself confessed about involvement in the present case alongwith his two other associates. She further stated that there is no investigation in respect of as to who is the person Kallu who was allegedly murdered by the accused with whom allegedly the accused performed unnatural sex. As per the initial story of the prosecution, the said Kallu threatened the accused and his two associates that he would report the matter to the police and so accused alongwith his two associates murdered him. She also argued that those two associates of the accused were however discharged and the case of the accused was no different from their case but he has been incarcerated for more than 8 years on false implication and charge was framed only against him. It was also argued by learned legal aid counsel for accused that identity of the said Kallu has not been established/investigated. She also invited attention to the disclosure statement of the accused where there is no mention of any ladder but PW6 in his cross examination and PW5 have stated that they reached the spot by climbing down the stair. She also argued that if PW5 and PW6 and other police witnesses SC No.1936/16 Page 9 of 24 required a ladder to reach the spot of incident from where the alleged ashes and bones of skeleton of the deceased was recovered, there is nothing in the disclosure statement of the accused as to how he and his two associates and the said Kallu reached the spot of incident on the alleged date of incident. She also argued that police witnesses have deposed that there were public persons available but none of them have been examined. Learned legal aid counsel for accused also argued that DNA was extracted from the bones of deceased but was not matched with the DNA of anybody much less the accused. Attention was also drawn by her to the FSL result where it has been reported that it cannot be opined as to whether sexual assault was caused to the deceased person before his death and it could be only established that the deceased was a male.
11. Learned legal aid counsel for accused also argued that even in the FSL result, it has been specifically reported that no traces of kerosene or petrol were found and thus the said report also does not support the story of the prosecution that accused burnt the dead body of Kallu for the purpose of destroying evidence against himself or that he further concealed the dead body of Kallu to screen himself from legal punishment. Learned legal aid counsel for accused also argued that there is no independent witness/eyewitness of the incident and that accused has been falsely implicated in the present case when he was arrested in case of FIR no.50/10, Police Station Amar Colony. She has prayed for acquitting the accused of the offences with which SC No.1936/16 Page 10 of 24 he has been charged.
12. Per contra, learned Additional Public Prosecutor for State argued that the nonidentification of dead body is not fatal to the story of prosecution. He also argued that it is correct that there is no eyewitness however it cannot be lost sight of that the recovery of dead body of Kallu was effected at the instance of accused. He argued that had the accused not been involved in the present case, no explanation has come forth as to how he was aware about the dead body of Kallu lying in the spot of incident. Learned Additional Public Prosecutor for State also argued that the dead body of Kallu was recovered after about 6 months of the incident and thus it could not be opined by way of scientific opinion as to whether unnatural sex was performed with the deceased or not. He argued that it is the case of manslaughter and the said fact was within the knowledge of the accused which led to recovery of dead body of Kallu. He also placed reliance on section 114 of Evidence Act to draw an inference that the murder of deceased was caused by the accused and that he destroyed the evidence after committing his matter and also concealed the dead body of Kallu to screen himself from legal punishment. Learned Additional Public Prosecutor for State has prayed for convicting the accused under section 302 of IPC and well in section 201 of IPC.
13. As per the story of the prosecution, on the arrest of the accused SC No.1936/16 Page 11 of 24 in another case i.e. FIR No.50/2010, PS Amar Colony, he had made a disclosure statement pursuant to which a burnt dead body in the form of skeleton was recovered from inside tunnel beneath Lajpat Nagar flyover. For the story of the prosecution is that in his disclosure statement, he had also implicated his coaccused Rajmani @ Kalia and Guddu for sodomizing one ragpicker by name of Kallu and co accused persons of accused were subsequently arrested. After recovery of the dead body, the present FIR was registered.
14. At the stage of framing of charge, learned counsel for accused persons argued that there is nothing on record against accused Rajmani @ Kalia and Guddu except the disclosure statement of the accused Sandeep and learned Additional Public Prosecutor for State conceded to the same by submitting that there is nothing on record to prima facie connect the accused Rajmani @ Kalia and Guddu with the commission of offence and in view of the same charges under section 302/201 IPC were framed against the accused Sandeep while his coaccused Rajmani @ Kalia and Guddu were discharged of the offences and were released forthwith.
15. There is no eye witness in the case, who saw the accused murdering Kallu, deceased. Entire case of prosecution is based on circumstantial evidence. It is a wellsettled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:(1) The circumstances from which an SC No.1936/16 Page 12 of 24 inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. State of U.P. v. Satish, (2005) 3 SCC 114, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
16. In the present case, the recovery of the dead body of the deceased was effected at the disclosure statement of the accused. Thus. it was an extrajudicial confession and that too made to a police witness which in itself is a very weak piece of evidence and also hit by provisions of Indian Evidence Act.
17. PW2, Ct. Roshan has deposed about the arrest of accused when he was standing near the stand of Central School, Andrews Ganj on the information of one informer that accused was having knife. He has further deposed that one button actuated knife was recovered from accused and the IO, ASI Sukhwinder Singh of the SC No.1936/16 Page 13 of 24 said case prepared a tehrir and FIR No. 50/10, PS Amar Colny was registered. Investigation was then assigned to SI Ram Niwas who arrested the accused in the said FIR.
18. PW2, Ct. Roshan has deposed that the disclosure statement of the accused was recorded in the said FIR. He has also deposed about accused Sandeep taking them to the Ring Road Flyover and pointing out the place where he alongwith his associates namely Guddu and Kalia had committed cardinal intercourse with one Kallu and thereafter committed his murder by strangulation. After committing murder of Kallu, they had burnt the dead body. PW2 has also deposed that accused Sandeep got recovered skeleton of deceased Kallu and IO SI Ram Niwas prepared the pointing out memo of the skeleton, Ex. PW3/B. PW5, Ct. Vinod Kumar, has also deposed on the same lines. He has referred to use of a ladder/staircase which was used by accused Sandeep as well as police officials for entering into the tunnel from where the alleged recovery of one skeleton was made.
19. PW4, Ct. Sanjeev, has deposed that on 10.02.2010, accused Sandeep as well as Rajmani @ Kalia and Guddu were produced in the court and IO arrested them or after seeking permission of the court and IO recorded their disclosure statements. It has been deposed by PW4 that police custody remand was granted to IO and after their medical examination all three led them to the place of SC No.1936/16 Page 14 of 24 incident i.e. beneath flyover of Lajpat Nagar and all of them pointed out the place of incident.
20. The deposition of PW4 reveals that it was not accused Sandeep alone but also the other two associates of his i.e. as Rajmani @ Kalia and Guddu who led the IO to the place of incident and all of them pointed out the place of incident. In his examination in chief, PW20, IO Inspector Sandeep Ghai, has deposed to the same effect. It is noticed that he has deposed that on 03.02.2010, he had moved an application before the concerned MM court for production of accused alongwith the other two coaccused Rajmani @ Kalia and Guddu who were already running in JC in case FIR No.50/2010, PS Amar Colony. Learned legal aid counsel for accused Sandeep has rightly argued that the other two coaccused Rajmani @ Kalia and Guddu had also made the disclosure statements confessing their involvement in the present case, however they have been discharged while accused Sandeep has been in JC since 2010. His only circumstance which is different from the circumstances of the other two coaccused Rajmani @ Kalia and Guddu is that he was arrested in FIR No. 50/2010 and at that time he had made the alleged disclosure statement and led to recovery of dead body while the other two coaccused Rajmani @ Kalia and Guddu were already in custody in FIR No.50/2010, PS Amar Colony. Accused Sandeep had been acquitted in the case FIR No. 50/2010, PS Amar Colony. Thus, it is to be seen whether the prosecution has been able to bring anything on SC No.1936/16 Page 15 of 24 record which is different from the circumstances of the other two co accused Rajmani @ Kalia and Guddu who were discharged at the stage of framing of charge.
21. Learned legal aid counsel for accused Sandeep has argued that there has been no investigation in respect of identification of dead body except the alleged statement of accused Sandeep. PW20, IO Inspector Sandeep Ghai has admitted in his crossexamination that despite several efforts made for finding the identification of the deceased, he could not be identified. He also admitted that all three accused persons had pointed out the spot in the present case after taking police custody on 10.02.2010. PW20, IO Inspector Sandeep Ghai, also admitted that all three accused persons had pointed out the spot in the present case after taking police custody on 10.02.2010. PW08, SI Ishwar Singh has also deposed on the same lines. As regards finding of dead body of a person, it was not only within the exclusive knowledge of the accused Sandeep but also in the knowledge of Rajmani @ Kalia and Guddu as deposed by PW 4, PW08, SI Ishwar Singh, Ct. Sanjeev, PW19, SI Ram Niwas, as well as by PW20, IO Inspector Sandeep Ghai.
22. It has been rightly argued by learned legal aid counsel for accused Sandeep that identity of Kallu has not been investigated. No missing report of any person has been proved or brought on record by the prosecution. PW8, SI Ishwar Singh has deposed that IO SC No.1936/16 Page 16 of 24 enquired from the surrounding market for the purpose of identification but none came forward for identification of the same. PW20, IO Inspector Sandeep Ghai, has also deposed that during investigation, he had sent wireless messages, Ex. PW20/C and Ex. PW20/D, he also deposed that he had sent number of letters to different agencies to establish the identity of deceased but despite his best efforts, same could not be established. Except for PW20, IO Inspector Sandeep Ghai and PW08, SI Ishwar Singh making efforts to find the identification of the deceased, no witness has deposed anything about investigation having been carried out for finding the identification of the deceased. The nonidentification of dead body of deceased has been admitted by PW20 in his cross examination.
23. As per the disclosure statement of accused Sandeep, because Kallu threatened him and his two associates of reporting the sexual assault to the police, he and his two associates killed him and sprinkled salt on the dead body of Kallu so that it should not smell foul and after that body was burnt by them. As per deposition of PW 2, HC Roshan Singh, accused Sandeep and his two associates had put the body of Kallu on fire. Learned legal aid counsel for accused Sandeep argued that at the relevant time, his 2 associates were in JC in case FIR No.50/2010, PS Amar Colony and thus could not be with him at the relevant time. However, there is no merit in the said submission as they were arrested in the year 2010 in the said FIR No.50/2010, PS Amar Colony while allegedly the death of deceased SC No.1936/16 Page 17 of 24 occurred 6 months prior to February 2010. During his cross examination, PW16, Dr. T. Millo has deposed that the Medical Board did not find smell of kerosene, patrol etc. in the skeleton remains. He also deposed that he could not comment if it could be natural death since the skeleton remains were partially burnt. He also deposed that he could not comment whether the cause of death in this case was suicidal or homicidal. Further, as per FSL result, Ex. A3, on chemical, TLC and GC examination, no residue of patrol, kerosene and diesel could be detected in exhibits i.e. burnt pieces of bones sent for examination. Metallic poisons also could not be detected in those exhibits. Thus, even medical/scientific evidence does not prove beyond reasonable doubt the case of the prosecution that accused Sandeep burnt the dead body of deceased Kallu for the purpose of destroying evidence against himself or to conceal the dead body of Kallu to screen himself from legal punishment. Thus accused Sandeep is acquitted of offence punishable under section 201 of IPC.
24. What is important to be seen is that according to the medical/scientific evidence the age of the deceased would be 2530 years. However, from the alleged disclosure statement of accused Sandeep, the deceased was a boy and not a man to whom he and the other two coaccused wrongly informed about iron lying under the Lajpat Nagar flyover hole and then turn by turn each of them performed carnal intercourse with him. However it seems improbable that accused persons who were of age of more than 18 years and SC No.1936/16 Page 18 of 24 less then 20 years at the relevant time (as per opinion of medical board constituted consisting of PW14, Dr. Anurag Jain, PW15 Dr. Ranjan Chandra and forensic expert, PW21 Dr. M.K.Wahi in Department of Forensic Medicines and Toxicology for age determination of all three accused persons) could sexually assault a man of 25-30 years although PW13, Dr. Kamlesh after the examination of Guddu, Raj Mani @ Kalia opined that there was nothing to suggest that any of them was incapable of performing sexual intercourse in ordinary circumstances.
25. Both PW16, Dr. T. Millo and PW17, Dr. Sanjeev Lalwani have deposed that the bones of the skeleton recovered were burnt however no opinion about time since death could be given as the body was brought in the form of partially burnt skeleton remains. They also deposed that no opinion could be given as to whether the deceased was sexually assaulted (sodomy) or otherwise. Thus, prosecution has been unable to prove beyond reasonable doubt that the deceased was sexually assaulted or as to what was the cause of his death. The prosecution has also been unable to prove the time since death of the deceased from the date of recovery of his dead body and prosecution could not prove that the death of the deceased was caused 6 months prior to the date of recovery of his dead body.
26. Submission of learned legal aid counsel for accused is found to be correct that there is no mention of any staircase having been used SC No.1936/16 Page 19 of 24 by accused Sandeep and his two associates when they allegedly followed Kallu underneath Lajpat Nagar flyover whereas the police witnesses, however PW4, Ct. Sanjeev, has deposed that during the period of police remand on 10.02.2010, accused persons i.e. Sandeep, Rajmani @ Kalia and Guddu took the police officials to the place of incident but has not stated that they had to take one ladder for going under the tunnel/hole under the flyover of Lajpat Nagar. Even PW20, IO/Inspector Sandeep has deposed on the same lines as of PW4, Ct. Sanjeev. PW9, Ct. Uday Bir who took the photographs of the spot on 02.02.2010 has not deposed about having used any staircase to reach the place of incident although he has deposed about having taken the photographs from both inside the tunnel and outside. PW10, SI Vijay Pal Singh and PW19, SI Ram Niwas have also not deposed about using any staircase to reach the spot of incident. All these witnesses have deposed about reaching the scene of crime on 02.02.2010 after the recovery of dead body/one skeleton was already made and PW2, Ct. Roshan, PW5, Ct. Vinod Kumar and PW19, SI Ram Niwas are the only witnesses who have deposed about recovery of dead body/skeleton at the instance of accused Sandeep.
27. PW4, Ct. Sanjeev has deposed in his examination in chief that when the accused persons i.e. Sandeep, Rajmani @ Kalia and Guddu took them to the place of incident, IO enquired the public persons but nobody came forward. PW5, Ct. Vinod Kumar in the SC No.1936/16 Page 20 of 24 examination in chief has deposed that on 02.02.2010, when accused Sandeep had taken the police officials to the place of incident, at about 7.40 p.m., PW20, Inspector Sandeep Ghai reached at the spot with PW6, HC Ashwini and Ct. Amit, many public persons had gathered there and he alongwith PW2, Ct. Amit were trying to manage the traffic and the public persons there. PW6, HC Ashwini has also deposed on the same lines. During his crossexamination, PW5 stated that no information regarding the traffic was given to control room traffic police. PW2, Ct. Roshan in his crossexamination admitted that accused was alone at the time of his arrest near the bus stand of Central School whereas other persons were sitting at the bus stop. He deposed that IO requested the public persons to join the investigation but no person agreed and left the place. Similar has been the statement of PW12, SI Sukhvinder Singh. He also deposed that he did not go to school to associate any public person or government official to join the police proceedings. PW2, Ct. Roshan, also stated that no name or address particulars of those persons were recorded no any notices were served upon them. Similar have been the deposition of PW20, Subhash Ghai. PW19, SI Ram Niwas, has deposed that at the time of arrest of accused Sandeep in FIR No. 50/10, PS Amar Colony, public persons were present at the bus stop. He also deposed that no public persons had joined during the investigation i.e. disclosure, arrest etc. and volunteered that he made efforts to join the public persons that the proceedings but none came forward. No notice was given to the public persons. He SC No.1936/16 Page 21 of 24 admitted that he had not made any endorsement on any of the memos prepared by him at the spot regarding his efforts to join the public persons in the proceedings. He also admitted that there are number of shops near the spot. He also admitted that no person from the nearby shop was called to be a witness of the proceedings. The observations made herein reveal the presence of public persons at the time of alleged recovery but none of them has been examined as an independent witness either at the time of making the alleged disclosure statement by accused Sandeep or at the time of recovery of the skeleton of deceased. Rather during his crossexamination, PW6, HC Ashwini has deposed that there was a huge traffic jam therefore he and other police staff i.e. had constable and constables were managing the traffic and therefore he could not say if any disclosure statement of accused was recorded by PW20, Inspector Sandeep Ghai or not. PW6, HC Ashwini has not even deposed about using any ladder/staircase by him or any other police witness to reach the spot of incident. During his crossexamination, he also admitted that it is a crowded area near the spot. He also admitted that there are number of shops at the Lajpat Nagar crossing but he was not aware if PW19, SI Ram Niwas or PW20, Subhash Ghai had requested any shopkeepers to join the proceedings. What has been stated by the police witnesses is a lame excuse to cover up the lacuna and no sincere efforts were made to join independent public witnesses during the investigation. Thus, the prosecution has failed to establish beyond reasonable doubt about making of the disclosure SC No.1936/16 Page 22 of 24 statement by accused Sandeep or that of recovery of one skeleton at his instance on 02.02.2010.
28. There is no eyewitness of the incident. No witness has even deposed that accused Sandeep was seen last with the deceased since the identity of the deceased could not be established by the prosecution except to the limited extent that PW16, Dr. T. Millo and PW17, Dr. Sanjeev Lalwani who are professors of Department of Forensic Medicine, AIIMS who deposed that after conducting postmortem on the dead body of Kallu, the estimated age of the person/deceased could be 25 - 30 years and PW16, Dr. T. Millo and PW17, Dr. Sanjeev Lalwani have deposed that the deceased was a male. PW18, Dr. Anupama Raina has opined that good quality of DNA was obtained from one of the bones of the deceased, Ex. 379 and the exhibit submitted belongs to male origin. She also deposed that there was no Exhibit for the comparison so she could not opine on the individualization of that Exhibit. Thus, the prosecution failed to connect even the DNA of deceased with DNA of accused Sandeep.
29. Further, the prosecution has failed to establish any of the ingredients of the tests laid down in the matter of State of U.P. v. Satish, (2005) 3 SCC 114, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. Thus on the basis of recovery of dead body/one skeleton at the alleged instance of accused Sandeep alone on 02.02.2010, the only fact different from the other two SC No.1936/16 Page 23 of 24 accused persons who were discharged, the prosecution has failed to establish that on 02.02.2010, accused Sandeep committed murder of Kallu more so when as per the statements of police witnesses, on 10.02.2012, not only accused Sandeep but also the other two co accused namely Rajmani@ Kalia and Guddu who were discharged had led PW20, IO Sandeep Kumar, PW08, SI Ishwar Singh and PW04, Ct. Sanjeev to the place of incident and also pointed out the spot of incident to them thus negating the story of the prosecution that the place of recovery of dead body/one skeleton was in exclusive knowledge of accused Sandeep alone. In view of these observations, accused Sandeep is acquitted of the offence punishable under section 302 IPC. He is in J/C. He be released from J/C if not required in any other case.
30. File be consigned to Record Room.
Announced in the open (DR.NEERA BHARIHOKE)
court today i.e. 31.08.19 Addl. Sessions Judge06
SouthEast, Saket Courts, New Delhi
Digitally signed
by NEERA
BHARIHOKE
NEERA
BHARIHOKE Date:
2019.09.02
12:58:51
+0530
SC No.1936/16 Page 24 of 24