Delhi District Court
27. It Has Been Held In Ramesh Bhai & Anr. vs . State Of on 11 November, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 135/2011
PS: Kashmere Gate
U/s: 302/392/411/34 IPC
S.C. No.: 85/2011
Case ID No.02401R0480302011
In the matter of:
State
Versus
1. Vishnu @ Bambaia S/o Tilak Ram
R/oVillageSikeda, POKachi Road Chopla,
PS Simbhawali, Ghaziabad, UP.
Present Address:
Vagabond Jamuna Bazar,
Kashmere Gate, Delhi.
2. Rahim S/o Nisar Ali
R/o Vagabond, Patri ISBT,
Kashmere Gate, Delhi.
3. Ramesh Chand @ Babua S/o Bhagwati Prasad
R/o Vagabond, Patri ISBT,
Kashmere Gate, Delhi.
Date of receiving in Sessions Court : 17.10.2011
Arguments Heard : 11.11.2011
Date of Judgement : 11.11.2011
FIR No.: 135/2011 1/15
JUDGEMENT
Case Of Prosecution:
1. On receipt of DD No.12A dated 15.7.2011 PS Kashmere Gate, regarding lying of an unconscious person in vehicle no. DL1Q0328 at ISBT Kashmere Gate road going towards flyover Shahdra, SI Ganpati Maharaj reached at the spot. Inspector Prem Singh Negi also received this information on his wireless and he alongwith HC Ram Babu reached at the spot i.e. Boulevard Road in front of Kudesia Park near ISBT Flyover. At the spot, SI Ganpati Maharaj and PCR van were already present. One Mahindra Commander jeep no. DL1Q0328 was found parked in which one person aged about 40 years was lying dead. There was injury marks on the left eyebrow and blood was lying under his head. Crime team was called.
Crime team inspected the spot. Private photographer was also called at the spot who took photographs of the scene of crime. No eye witness was found at the spot and dead body could not be identified. Case u/s 302 IPC was registered. During investigation, IO prepared site plan, collected blood gauze, blood stained foot rubber pad and piece of foot rubber pad, blanket, a bunch of keys, 502 brand bidis, match box and a stone from the spot and separate pullandas were prepared and sealed with the seal of PSN. During further investigation, dead body was got identified as Kunwarpal Singh who was the driver of vehicle No. DL1Q0328. Postmortem on the dead body was got conducted. Statements of witnesses were recorded. On 20.7.2011 accused persons namely Vishnu @ Bambaia, Rahim and Ramesh Chand @ Babua were arrested and they confessed their involvement in this case. FIR No.: 135/2011 2/15 Their disclosure statements were recorded. The accused persons got recovered wrist watch, purse, and hand bag containing papers and tools of vehicle. During TIP proceedings, the case property were got identified. Scaled site plan was got prepared, exhibits were sent to FSL, Rohini for expert opinion and after completion of investigation, chargesheet u/s 302/392/411/34 IPC was filed in the court against the accused persons.
2. Since the offence u/s 302 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case u/s 302/392/411/34 IPC was made out against all the accused persons. Charge was framed against them to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 19 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal witnesses:
6. PW1 is Sh. Deepak and PW2 is Sh. Om Prakash who have identified the dead body of Kunwarpal Singh vide their statements Ex.PW1/A, Ex.PW1/C and PW2/A. After postmortem they received the dead body vide memo Ex. PW1/B. FIR No.: 135/2011 3/15
7. PW3 is Sh. Khairati Lal who had taken the jeep bearing registration no. DL1Q0328 on rent from its registered owner Mahenderpal Singh and had handed over the same to Kunwarpal Singh on rent who used to ply this jeep on the route from Bhajanpura to Chandni Chowk. This witness also identified the jeep after being informed about the incident and thereafter accompanied the police to Subzi Mandi Mortuary where he identified the dead body of his driver Kunwarpal Singh.
8. PW4 is Sh. Mahenderpal Singh who is the registered owner of the Mahindra Commander jeep bearing registration No. DL1Q0328 and has proved the documents of vehicle alongwith its key and Pana as Ex. P1/A to P1/D.
9. PW5 is Smt. Santosh wife of deceased who identified the dead body of deceased vide statement Ex. PW5/A. She also identified the wrist watch and black colour wallet of deceased in the court as well as during TIP proceedings.
10. PW6 HC H.K. Tomar is the MHC (M) who made the entries in register no.19 regarding deposition of the case property in the malkhana and proved the same as Ex.PW6/A1, PW6/A2, PW6/B, PW6/C1, PW6/C2.
11. PW7 is W/Ct. Anita Bai who stated that on 15.7.2011 she was posted at CPCR/ PHQ and received an information from one Sushil through his mobile phone that one person is lying unconscious in vehicle No. DL1Q 0328 near Kashmere Gate way to flyover Shahdra, Delhi. She fed this information in form no.1 Ex. PW7/A.
12. PW10 is SI Dheeraj Kumar, I/C Mobile Crime Team, North FIR No.: 135/2011 4/15 District who inspected the site, prepared the report and proved the same as Ex. PW10/A.
13. PW11 is Ct. Dinesh Khatri who took the rukka to police station for registration of FIR of the present case.
14. PW14 is Ms. Manisha Upadhyaya, Senior Scientific Officer (Biology) FSL, Rohini, Delhi who examined the exhibits and proved the report as Ex. PW14/A and Ex. PW14/B.
15. PW15 SI Pratap Singh is the duty officer who recorded the FIR and proved the same as Ex. PW15/A and made endorsement thereon and proved the same as Ex. PW15/B. He also recorded DD no.12A and proved the same as Ex. PW13/A.
16. PW16 SI Mahesh Kumar is the draftsman who took the rough notes and measurements of the spot and prepared the scaled site plan and proved the same as Ex. PW16/A.
17. PW18 is Sh. Sushil who made call at 100 number from his mobile phone at 100 number. He further identified the photographs Ex. PW12/B1 to B16 of the spot showing the dead body and the vehicle. Material witnesses:
18. PW8 is HC Rajesh Kumar and PW9 is Ct. Munshi Ram who were with the IO during the arrest of accused persons and recovery at their instance and have proved all the memos etc to this effect.
19. PW12 is Ct. Raj Kumar and PW13 SI Ganpati Maharaj who who also joined the investigation with IO and proved the memos etc. FIR No.: 135/2011 5/15
20. PW19 Inspector Prem Singh Negi is the IO of the case who conducted the investigation and proved all the memos etc. Medical witnesses:
21. PW17 is Dr. K. Goyal, Chief Medical Officer, Aruna Asaf Ali Govt. Hospital, Delhi who conducted the postmortem on the dead body of Kunwarpal Singh and prepared detailed postmortem report Ex. PW17/A.
22. Statements of accused U/s 313 Cr.P.C. were recorded wherein they denied the case of prosecution and stated that they have been falsely implicated in the present case. All the accused persons chose not to lead any evidence in their defence.
23. I have heard Ld. defence counsel for the accused persons and Ld. APP for the State and have carefully perused the record.
24. Ld. APP for the state argued that the prosecution has established the chain of circumstances beyond reasonable doubt; the contradictions as pointed out are minor in nature which are liable to be ignored; there is no major discrepancy in the prosecution story and the material witnesses have fully supported the prosecution case and there is nothing in their lengthy crossexamination so as to assail their deposition. Ld. APP for the state vehementally argued that the prosecution has established its case by completing the chain of circumstantial evidence and the evidence on record has nowhere been assailed in any manner therefore, accused be convicted for the offence of murder.
25. On the other hand, Ld. Defence Counsel argued that chain of circumstantial evidence is not complete. There is no last seen evidence and FIR No.: 135/2011 6/15 motive of crime is not established by the prosecution. Therefore, the accused is entitled for acquittal.
Conclusion:
26. Admittedly there is no eye witness of the present case and entire case rests upon the circumstantial evidence. The law relating to admissibility of circumstantial evidence is very clear and now it has been laid down by various decisions of Hon'ble High Court and Hon'ble Supreme Court again and again that the circumstantial evidence against the accused should not only form a uniform chain but it must only point out towards the guilt of accused and nothing.
27. It has been held in Ramesh Bhai & Anr. Vs. State of Rajasthan 2009 VIII AD (S.C.) 313 that "It has been consistently laid down by this court that where a case rests squarely on circumstantial evidence, the reference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, AIR 1977 SC 1063, Eraden & Ors. Vs. State of Hyderabad AIR 1956 SC 316, Erabhadrappa Vs. State of Karnataka AIR 1983 SC 446, State of U.P. Vs. Sukhban & Ors. AIR 1985 SC 1224, Balvinder Singh Vs. State of Punjab AIR 1987 SC 350 Ashok Kumar Chatterjee Vs. State of M.P. AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances".
28. The present case of prosecution is also based entirely on the circumstantial evidence as there is no eye witness to the incident. The case of prosecution is based on circumstantial evidence and the prosecution has FIR No.: 135/2011 7/15 claimed to have established its case by proving the following circumstances in evidence which form the chain of circumstantial evidence:
(i) Identity of dead body and recovery of dead body.
(ii) Postmortem report and cause of death. (iii) Arrest of the accused persons. (iv) Recovery of the articles belonging to the deceased at the instance of accused persons.
Identity of the dead body and recovery of dead body:
29. On 15.7.2011 an information was received in the CPCR/PHQ at about 11.08 a.m. that a person is lying unconscious in vehicle no. DL1Q0328 near Kashmere Gate way to flyover Shahdra, Delhi by PW7. PCR form no.1 has been duly proved by PW7 W/Ct. Anita Bai as Ex. PW1/A and the testimony of this witness has remained unchallenged and unshattered. Subsequently this information was sent to the concerned police station.
30. PW18 Sushil is the person who gave information to the PCR. He deposed that on 15.7.2011 he saw one Phatphat Sewa jeep stationed in front of Kudesia park and many public persons had gathered over there. He made a call from his mobile at 100 number and called the PCR at the spot. This witness has further identified the photographs of the spot showing the dead body and the vehicle. Testimony of this witness has remained unchallenged with regard to the fact that he saw a person lying unconscious in the Phatphat Sewa jeep.
31. PW13 SI Ganpati Maharaj has deposed that on 15.7.2011 he FIR No.: 135/2011 8/15 received DD no.12A Ex. PW13/A regarding one person lying in a vehicle no. DL1Q0328 at ISBT Gate, road going to flyover Shahdra from ISBT Kashmere Gate. He stated that he reached at the spot where a PCR van was already stationed near the Phatphat Sewa No. DL1Q0328. In the Phatphat Sewa a person aged about 40 years wearing red and white linedar shirt and brown colour pant was lying dead.
32. PW19 Inspector Prem Singh Negi is the IO of the case who also deposed that on 15.7.2011 he was present alongwith HC Ram Babu at Yamuna Bazar. He received an information with regard to one person lying in a vehicle no. DL1Q0328 at ISBT Gate, road going to flyover Shahdra from ISBT Kashmere Gate. He alongwith HC Ram Babu reached at the spot and met SI Ganpati Maharaj with staff and PCR van was already stationed near the Phatphat Sewa No. DL1Q0328. He deposed that one person aged about 40 years wearing red and white linedar shirt and brown colour pant was lying dead in Phatphat Sewa jeep.
33. The dead body was further identified by PW3 Khairati Lal. This witness has deposed that he owned one taxi of Mahindra and had three Phatphat Sewa jeep on contract basis. He also deposed that one Phatphat Sewa jeep No. DL1Q0328 was given to one Kunwarpal Singh S/o Dev Sukh on rent. He stated that on 15.7.2011 some police officials came to his shop and told that his jeep is stationed at Kashmere Gate and a dead body is found in the jeep. He went to Kudesia Park, ISBT and identified his jeep. Thereafter he accompanied the police to Subzi Mandi Mortuary and identified the dead body of his driver Kunwarpal Singh. FIR No.: 135/2011 9/15
34. PW1 Sh. Deepak is the son of the deceased and PW2 Sh. Om Prakash is the brother of the deceased and they both have also identified the dead body of deceased.
35. PW5 Smt. Santosh is the wife of deceased who also went to the Mortuary and identified the dead body of her husband.
36. Testimony of PW1 and PW2 remained unchallenged and unshattered. From the testimony of these witnesses it stands established on record that dead body of Kunwarpal Singh was found in Phatphat Sewa jeep on 15.7.2011 under unnatural circumstances.
Postmortem report and cause of death.
37. PW17 is Dr. K. Goyal who conducted the postmortem on the dead body of Kunwarpal Singh and prepared detailed postmortem report Ex. PW17/A and opined the cause of death as asphyxia consequent upon ligature strangulation. As per the postmortem report, injury no.1 was caused by soft material and was possible by muffler found in situ around the neck and the ligature pressure over the neck was sufficient to cause death in ordinary course of nature, injury no.2 was caused by blunt force impact and injury no. 3 was caused by friction against rough blunt surface. All injuries were antemortem in nature and time since death was about 3637 hours. From the testimony of PW17 Dr. K. Goyal, it stands proved that the death was caused due to asphyxia consequent upon ligature strangulation and this injury was possible by the muffler found near the dead body. Testimony of this witness has remained unshattered and there is no suggestion given to the witness that death was not caused due to asphyxia consequent upon ligature FIR No.: 135/2011 10/15 strangulation. Thus the cause of death that it was due to strangulation has been established on record by the prosecution beyond reasonable doubt. The victim died in unnatural circumstances i.e. due to strangulation stands established by the prosecution beyond reasonable doubt.
Arrest of accused persons and the recovery of the articles belonging to the deceased at the instance of accused persons:
38. As per the case of the prosecution, the death of Kunwarpal Singh took place under unnatural circumstances and a case u/s 302 IPC was registered as PW19, IO of the case has deposed that blood was found under the head of the dead body where it was lying. One light blue colour gumcha was also found around his neck and there was injury on the left eyebrow. As per the IO no eye witness of the case was found. He deposed that on 20.7.2011 at about 5.30 p.m. he alongwith PSI Sandeep, HC Ram Babu, HC Rajesh and Ct. Munshi Ram went for the search of accused persons. When at about 6.00 p.m. they reached at Faridabad Bus Stand, Ring Road, ISBT, one secret informer met him and informed that the person involved in the present case is a drug addict and his name is Vishnu @ Bambaia. On this information, he arrested accused Vishnu @ Bambaia who later on confessed his involvement in the present case and also took the name of coaccused persons. In pursuance of his disclosure statement, two other accused persons in the present case were arrested. As per the disclosure statement of accused Vishnu @ Bambaia, he alongwith Rahim and Ramesh Chand @ Babua killed one person in a Mahindra Commander Jeep/Phatphat Sewa and FIR No.: 135/2011 11/15 looted money, wrist watch and wallet of that person and also took away the hand bag lying in the Phatphat Sewa. IO has further deposed that subsequently accused Vishnu @ Bambaia was wearing the wrist watch which he gave to him and the wallet and hand bag were recovered at the instance of other accused persons who were arrested later on. It is well settled principle of law that disclosure statement made by the accused is not admissible in evidence except where in consequence to that disclosure statement recovery of a fact or thing has been effected. Similarly the disclosure made by the accused against coaccused is not admissible in evidence. In the present case as per the case of the prosecution, in consequence to the disclosure statements of the accused persons, belongings of the deceased i.e. hand bag, wallet and wrist watch has been recovered at the instance of the accused persons. So far the wrist watch is concerned, then it was accused Vishnu @ Bambaia who was found wearing the same.
It is hard to believe that an accused who killed a person two days before will immediately wear the wrist watch of that deceased and after two days was found by the IO wearing the same.
39. There are also discrepancies in the statements of police officials who were present with the IO during the recovery of deceased's belongings. According to the IO, he alongwith PSI Sanpdeep, HC Ram Babu, HC Rajesh and Ct. Munshi went for the search of accused persons but the name of HC Ram Babu has not been mentioned in the list of witnesses by IO. PW8 is HC Rajesh Kumar and PW9 is Ct. Munshi Ram and both these witnesses in a parrot like manner have stated that on receipt of secret information, IO FIR No.: 135/2011 12/15 requested public persons to join raid but they refused to join the same after giving reasonable excuses. However PW8 in his cross stated that IO did not ask any public person in the park to join the proceedings and also no notice was given to the public persons who refused to join the investigation. PW9 in his cross examination has stated that IO did not ask any public person to join the proceedings at ISBT Ring Road. So far as the Kudesia Park or the other public place i.e. road near ISBT is concerned, then these places are the public places frequented by public persons and are not the deserted places. The place of recovery i.e. Kudesia Park at Boulevard road behind Mandir and loop bridge near ISBT Kashmere Gate from where the accused persons got recovered wallet and hand bag are also not the deserted places and are frequently visited by the public persons. The non joining of the public witnesses during recovery of articles from these places adversely effect the case of the prosecution. The wallet and hand bag were recovered at the instance of the accused persons do not have any specific marks on them and such type of wallet and hand bag are easily available in the market. In such circumstances, the recovery of these things at the instance of accused persons from the public places is highly doubtful as these places are not deserted one where nobody goes. Moreover, the recovery is effected only in the presence of the police officials who are definitely interested in the success of the case and, therefore, the recovery at the instance of accused persons in the presence of police officials or at the abovesaid places which are frequently visited by public persons, is doubtful. The only evidence collected against the accused persons in the present case is the recovery of FIR No.: 135/2011 13/15 the belongings of the deceased at the instance of the accused persons. Except for this there is no other evidence against the accused persons. Even if we take the recovery at the instance of the accused persons, still these recoveries at the instance of accused persons does not prove the fact that accused persons also committed the murder of the deceased. From these recoveries, only case u/s 411 IPC stands proved against the accused persons. Except for this evidence, there is no other evidence against the accused persons to connect them with the murder of the deceased. There is neither last seen evidence nor any eye witness of the incident. Mere recovery of belongings at the instance of accused does not connect them with the death/murder of deceased. So far as this evidence is concerned, then same is also not proved by the prosecution beyond reasonable doubt against the accused persons as stated above. For the sake of repetition it may be mentioned that recovery at the instance of accused persons is doubtful.
40. In view of the abovesaid discussion, it cannot be said that prosecution has been able to prove its case beyond reasonable doubt against the accused persons. They are therefore given benefit of doubt. Accused persons are acquitted of the offence. They are in J/C. They be released forthwith, if not required in any other case. Since all the accused are vagabonds and have no one in their families staying in Delhi, in view of the new amended section 437A of Cr. P.C, all the accused persons are directed to furnish personal bonds in the sum of Rs. 10,000/ each for the period of 6 months with the condition that they shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal filed by the FIR No.: 135/2011 14/15 state against the judgement within a period of 6 months. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to record room.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 11.11.2011. FIR No.: 135/2011 15/15