Delhi District Court
State vs Sanjay @ Monkey on 31 October, 2023
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 58465/16)
CNR No. DLNT01-001187-2015
FIR No. 1445/2014
Police Station Shahbad Dairy
Charge sheet filed 302/34 IPC
Under Section
Charge framed Under 302/34 IPC
Section
Sanjay @ Monkey s/o Sh. Lal Chand
r/o B-666, Phase-I, Metro Vihar,
Holambi Kalan, Delhi
Mohd. Sameer @ Bholu @ Bilal s/o
State Vs. Mohd. Saleem r/o B-26, Phase-I, Metro
Vihar, Holambi Kalan, Delhi
Naseem Khan @ Nanhe s/o Majeed
Khan r/o B-525, Phase-I, Metro Vihar,
Holambi Kalan, Delhi
Date of institution 15.04.2015
Arguments concluded on 26.10.2023
Judgment Pronounced on 31.10.2023
Decision Acquitted
JUDGMENT
BRIEF FACTS 1.1 Events which set the prosecution machinery into motion is that on 14.12.2014, DD No. 15PP was registered at Police Chowki Metro Vihar where the informant disclosed about the recovery of a headless dead body lying in the SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 1 of 43 PS Shahbad Dairy backside of DSIDC D-Mall, DDA Open Land. On receipt of DD No. 15PP, SI Surender alongwith Ct. Jasvinder and Ct. Ashwani went to the spot where headless dead body was found lying. He was wearing a red stripped shirt, dark brown underwear and white vest (sando) which was in torn condition. Apart from head, his chest bones were also found chopped of the dead body and were missing. On the upper arm of right hand of the dead body tattoo of "Scorpio", on right forearm tattoo of "My Dear MR", on back side of right arm tattoo of "star" and on right bicep tattoo of "snake" were engraved. On the left upper arm tattoo of "B" and on the left forearm tattoo of "heart with an arrow" was engraved. One Navy blue colour pants and one Black colour jacket was lying between the dead body and the wall whereas in the north side one belt was found lying. Some blood stained stones were also lying near the wall. Blood stains were also available on the wall. Near about 20 feet away from the the dead body, two wooden bamboo sticks tied with a rope were found dug into the ground. One male and one female naked statute were kept in a cane basket (tokri) underneath the rope joining both the sticks. Another basket (tokri) containing some worship items was also lying and one quarter bottle was also near the tokri. Crime team was called at the spot, who inspected the scene of crime and got clicked the photographs of the spot. Efforts were made to trace out the head of the dead body but same was not found. Considering the condition of the dead body, rukka was prepared on the basis of DD entry and FIR under section 302 IPC was registered and investigation was marked to IO Inspector Sanjeev Kumar. As no eye witness was found, identification of the dead body could not be done and dead body was shifted to mortuary BSA Hospital. Site plan was prepared by the IO at the instance of SI Surender. IO seized five blood stained stones, blood stained jacket and pants, belt, black leather shoes with socks, earth control having blood stains, earth control, piece SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 2 of 43 PS Shahbad Dairy of wall having blood stains, piece of wall without blood stains, naked statue of male and female, one small glass bottle of honey, one quarter bottle, two earthen pots, one red and white check cloth (angocha), wooden bamboo sticks (measuring 6 feet 6 inches) alongwith rope and one wooden tokari containing a white polythene having written bhagta di hatti on it. As per crime team report, deceased was having injury marks on both shoulders, genital organ and on left leg.
1.2 On 17.12.2014, Mohan Lal identified the dead body of deceased in mortuary BSA Hospital as of his son Manjeet. Thereafter, on 18.12.2014 postmortem was conducted and dead body was handed over to Mohan Lal. As per postmortem, death was likely to be caused by hemorrhagic shock. The decapitation and removal of tissue/organ was postmortem in nature. Doctor seized his viscera, blood sample in gauge, clothes of the deceased and same were handed over to the IO. Statement of Mohan Lal also got recorded wherein he stated that on 12.12.2014, his son Manjeet came back early from his office to go to a party. He stated that when he came back from the office, his wife informed him that Manjeet had gone to party after taking Rs. 350/- from her. At about 07:30 PM, when Manjeet did not turn up, Mohan Lal called from his mobile No. 9582053558 to Manjeet on his number 8447541328, who told that he was in company of accused persons Sanjay, Sameer and Naseem and thereafter, he disconnected the phone. When Mohan Lal called up again on the mobile of Manjeet, same was found switched off. For 2-3 days he made search for Manjeet and also went to the house of accused persons, however, they were not found present at their respective houses.
1.3 During investigation, statement of one Vinod (driver of gramin SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 3 of 43 PS Shahbad Dairy sewa bearing No. DL2W3313) also recorded on 23.12.2014 wherein he stated that on 12.12.2014 at about 06:30 PM, when he was waiting for passengers at Phase 1, Metro Vihar, Near Sector-5, DSIDC, accused Sanjay @ Monkey, Sameer @ Bholu and Naseem @ Nanhe alongwith deceased came there. All of them went to JJ Colony, Bawana in the said gramin sewa and thereafter, they went to D-Mall, DSIDC, Bawana in the said vehicle. He stated that later on he came to know that a headless body was found behind D-Mall which was of Manjeet s/o Mohan Lal. He stated that on 18.12.2014 in the morning when he was waiting for passengers, accused persons namely Sanjay, Sameer and Naseem met him and he enquired about the incident of 12.12.2014. They informed him that on 12.12.2014 they were sitting behind D Mall where a quarrel took place between them on the issue of consuming drugs. Due to the said quarrel, they committed murder. He stated that he got frightened and that is why he did not inform the police about the same.
1.4 On 26.12.2014 an information was received DD No. 84B qua arrest of accused persons namely Naseem Khan @ Nanhe, Mohd. Sameer @ Bholu and Sanjay @ Monkey under section 41.1 (B) A CrPC by Northern Range, Crime Branch and they disclosed about their involvement in the present case. Accused Naseem was found in possession of two mobile phones out of which one was of deceased Manjeet.
1.5 On 27.12.2014, IO formally arrested the accused persons. They disclosed that all of them used to consume smack and deceased Manjeet was also a drug addict. On 12.12.2014 they met the deceased and all of them went to JJ colony Bawana around 09:00-09:30 PM in the gramin sewa of PW Vinod and they purchased smack from one lady Anita alongwith Avil injections and SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 4 of 43 PS Shahbad Dairy syringe. They came back to DD Mall sector 5 Industrial Area in the same Gramin sewa and sat down in an open ground. They were injecting themselves with Avil but somehow, the Avil bottle of accused Naseem Khan fell on the ground, therefore, he asked for some drug from deceased Manjeet from his Avil bottle. Deceased refused for the same which resulted into a fight between Naseem and deceased. Naseem took out a blade and inflicted an injury on the neck of the deceased. All accused persons, pushed the deceased to the ground and inflicted injuries on his neck and head with the help of stones lying over there. They also took one mobile phone and cash Rs.130/- from his pocket. The phone was kept by accused Naseem.
1.6 During police custody remand, site plan of commission of offence was prepared at the instance of accused persons. Accused Sanjay got recovered one empty Avil bottle 10 ml, two pieces of avil bottle and broken cork of the bottle from the spot. He also got recovered one blood and mud stained pants from his house stating that same was worn by him at the time of incident. Accused Sameer got recovered pieces of syringe on which CC1,2,3,4,5 was written, one plastic needle cover and one needle alongwith syringe from the spot. Accused Naseem also got recovered pieces of wrapper/cover of Avil bottle on which Avil 10 ml was written and one piece of blade. All the exhibits were seized. Blood samples of accused persons got preserved in MV Hospital. Date of birth certificates of accused Sanjay @ Monkey and Mohd. Sameer @ Bholu @ Bilal were obtained whereas ossification test of accused Naseem @ Nanhe was got conducted and all the accused persons were found to be major on the date of commission of offence. During investigation, scaled site plan got prepared and exhibits were sent to FSL. After completion of investigation, charge sheet for the offence u/s 302/34 IPC was filed against accused persons. SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 5 of 43 PS Shahbad Dairy 1.7 Supplementary charge sheet was also filed by the IO after receiving of CDR of accused persons. FSL result was also filed by the IO which confirmed that Raj Kumari (mother of deceased) is the biological mother of deceased Manjeet. DNA available on stone pieces were also matched with deceased.
CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 18.05.2015, charge under section 302/34 IPC was famed against the accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 31 witnesses in all.
FORMAL WITNESSES
4. PW2 ASI Ram Kumar being the Incharge of Mobile Crime Team, on receipt of information, he reached at the spot where he saw a headless dead body lying there. He deposed that there were cut marks on both side of the shoulders as well as on private part. He deposed that there was a sign of injury on left foot and there was a tattoo of snake on right hand and tattoo "My dear MR" on right forearm. He further deposed that there were two rings on two fingers of right hand and there was a tattoo of heart and a star on the left hand. He further deposed that some clothes i.e., jacket, pant and a belt were found lying near the dead body. He further deposed that near the dead body and the boundary wall, blood stained pieces of stones were found lying and there were blood stains even on the boundary wall. He prepared his scene SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 6 of 43 PS Shahbad Dairy of crime visit report which is Ex. PW2/1.
5. PW3 Ct. Nitin deposed that on 20.12.2014 when he was present in BSA Hospital, concerned doctor handed over him five sealed pullandas. He handed over the pullandas to IO and same were seized vide seizure memo which is Ex. PW3/1.
6. PW7 HC Pradeep being the duty officer, exhibited that FIR as Ex. PW7/1, endorsement on rukka as Ex. PW7/2 and certificate under section 65B of Indian Evidence Act as Ex. PW7/3.
7. PW9 Mohit Kumar identified the dead body of his brother Manjeet in mortuary of BSA Hospital vide dead body identification statement which is Ex. PW9/1. He deposed that he identified the dead body on the basis of clothes and also on the basis of tattoos.
8. PW11 Ct. Parikshit Dhama exhibited that DD No. 15 dated 14.12.2014 PP Metro Vihar as Ex. PW11/1.
9.1 PW12 Ct. Sandeep Khatri took 14 sealed pullandas and four sample seals from MHC(M) to deposit the same in FSL vide RC Nos. 45/21, 46/21, 47/21 and 48/21. He deposited the pullandas and deposited the receipt in malkhana.
9.2 He also deposed that on 21.03.2015, on the instructions of IO, he took Mohan Lal to Maharishi Balmiki Hospital where his blood sample were taken. He handed over the blood sample to IO which was seized vide seizure SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 7 of 43 PS Shahbad Dairy memo which is Ex. PW12/1.
10.1 PW13 Ct. Labh Singh exhibited that DD No. 84B dated 26.12.2014 as Ex. PW13/1.
10.2 He deposed that on 19.02.2015, he took the pullanda containing viscera of deceased from MHC(M) to deposit the same in FSL. He deposited that pullanda in FSL and deposited the receipt in malkhana.
11. PW14 Ct. Abhishek being the photographer in crime team, he clicked 20 photographs of the spot from his camera. However, out of 20 photographs, 13 positive printouts were developed which are Ex. PW14/A. He exhibited the negatives as Ex. PW14/B. 12.1 PW15 HC Ram Narayan deposed that on 26.12.2014 at about 03:00 PM he received secret information. He met SI Deepak Malik and informed that about 10 days back a headless dead body was recovered from Sector-5, DSIDC and culprits namely Nanhe, Monkey and Bholu could be apprehended. SI Deepak shared the information with Inspector Puran Panth and on the discussion, a raiding party was constituted and went near JJ Colony, Bawana Canal. He further deposed that 3-4 boys were seen in a Gramin Sewa vehicle and on the pointing out of secret informer, all the three persons were apprehended and they disclosed their names as Nanhe, Monkey and Bholu. He further deposed that on casual search, two mobile phones were recovered from accused Nanhe, who claimed that one of the mobile belonged to him while the other was of Manjeet Singh. Both the mobile phones were seized vide seizure memos which are Ex. PW15/1 and Ex. PW15/2. All the three accused SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 8 of 43 PS Shahbad Dairy persons were arrested vide arrest memos which are Ex. PW15/3, Ex. PW15/4 and Ex. PW15/4 and conducted their personal search vide personal search memos which are Ex. PW15/6, Ex. PW15/7 and Ex. PW15/8. He further deposed that accused persons took them to park in Sector-5, DSIDC, Bawana and pointed out the place where Manjeet had been killed.
12.2 He was cross examined by Ld. Addl. PP for the State wherein he stated that after interrogation, disclosure statement of accused persons were recorded which are Ex. PW15/9, Ex. PW15/10 and Ex. 15/11. He correctly identified accused persons and mobile phones make Celkon and Sansui and a SIM of Airtel recovered from the possession of accused Nanhe and exhibited the same Ex. P5 (Celkon) and Ex. P6 (Sansui mobile phone and SIM) during his deposition.
12.3 During cross examination done on behalf of accused, he stated that informer claimed that three culprits were residents of his colony and he had seen the culprits alongwith deceased before he was killed. He further stated that he informed that they used to consume smack and would be going to consume smack and could be apprehended. He denied that accused persons were picked up from their houses. He stated that he had not gone to the place from where accused persons claimed having purchased smack from one lady Anita on the day they killed Manjeet.
13. PW16 Ct. Dinesh Kumar deposed that on 14.12.2014, Ct. Ashwani produced the rukka before duty officer and he correctly typed the FIR as per instructions of duty officer and as per contents of rukka on the computer under the supervision of duty officer.
SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 9 of 43 PS Shahbad Dairy 14.1 PW17 SI Deepak Malik deposed on the lines of PW15 HC Ram Narayan qua arrest of accused persons on 26.12.2014. He proved DD No. 21 NR Crime Branch as Mark P17/A qua receipt of information. He also proved DD No. 34 dated 26.12.2014 as Mark P17/B qua conclusion of proceedings and kalandara prepared in this regard as Ex. PW17/1.
14.2 During cross examination done on behalf of accused Sanjay and Sameer, he stated that Gramin Sewa vehicle reached at bus stand JJ Colony, Bawana at around 04:30 PM and informer pointed out the culprits from distance of about 20 yards. He denied that his team wrongly apprehended the accused persons for reward and promotion and all accused persons were picked up from their houses during night time and falsely implicated. He stated that he visited the spot twice i.e., first on 12.12.2014 when call was received regarding the incident and thereafter, on 26.12.2014 after apprehension of accused persons. He stated that there were no puja articles or other such likes material at the spot when he first visited the spot. He stated that he had not seen dead body at the spot when he visited for the first time. He denied that on 17.12.2014 when he received information regarding involvement of accused persons in the present case.
14.3 During cross examination done on behalf of accused Naseem, he stated that he stated that one or two officials of local police station were present at the spot when he first went there on 12.12.2014. No exhibits or articles were recovered from there in his presence. He stated that up till 26.12.2014, they were collecting information about culprits of their own. He stated that no information regarding culprits was received by him prior to 26.12.2014. He stated that he did not have intimation about body description of SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 10 of 43 PS Shahbad Dairy any of the culprits prior to 26.12.2014. He stated that he was at a distance of about 20 yards from the accused persons when they got down from the Gramin Sewa vehicle. He stated that information was conveyed to PS Shahbad Dairy about arrest of accused persons. He stated that mobile phone had already been recovered from accused Naseem before recording of his disclosure statement. He could not say as to who had reduced into writing disclosure statement of accused Naseem Khan, however, it was under his dictation as per facts told by accused. He stated that he asked the accused about weapon of offence and it was informed that deceased was firstly hit with a stone and then a blade was used. He stated that accused claimed that the stones used were found at the spot itself and had been thrown there itself after being used and the blade had been thrown somewhere else. He stated that he took accused to the spot of incident but no weapon of offence got recovered. He stated that nothing material was found at the exact spot of incident as pointed out by the accused. He had not interrogated that accused persons regarding their clothes worn by them at the time of incident. He stated that he did not make any attempt to ascertain Rajesh regarding whom accused Nadeem had claimed having sold the mobile phone of deceased.
15. PW18 Dr. Vijay Dhankar, Specialist and HOD, Forensic Medicines, BSA Hospital. He conducted the postmortem on the body of deceased and prepared postmortem report which is Ex. PW18/1. He deposed that head, neck and parts of chest of dead body were missing. Collar bones cut in the inner part and heart were also missing. He further deposed that no definite opinion regarding cause of death could be given, however, death was likely to have been caused by hemorrhagic shock. The decapitation and removal of tissues/organs was postmortem in nature. He further deposed that SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 11 of 43 PS Shahbad Dairy the deceased died after about 4-6 hours of last meal.
16.1 PW19 ASI Narender Singh deposed on the lines of PW15 HC Ram Narayan as he was one of the member of the raiding party, who apprehended the accused persons.
16.2 During cross examination done on behalf of accused persons, he stated that SI Deepak searched the accused persons after their arrest and at that time public persons were also standing at some distance from them at that time. He stated that IO did not ask driver, conductor and 7-8 passengers, who were present in Gramin Sewa to join the investigation. He stated that writing work was done at the spot while sitting on a wall which was very low in height.
17.1 PW20 HC Umesh Kumar being the MHC(M), on 20.03.2015, he deposited the jamatalashi articles of accused persons vide entry No. 2094 which is Ex. PW20/1. On 21.03.2015, he deposited two blood samples pullandas alongwith sample seal vide entry No. 2104 which is Ex. PW20/2. He deposited two blood sample pullandas alongwith sample seal on 02.04.2015 vide entry No. 2151 which is Ex. PW20/3, sealed pullandas vide 7 seizure memos on 14.12.2014 vide entry No. 2393 which is Ex. PW20/4, three sealed pullandas alongwith two sample seals on 20.12.2014 vide entry No. 2414 which is Ex. PW20/5. On 28.12.2014, he deposited five pullandas and blood samples of accused Sanjay, Naseem Khan and Sameer vide entry No. 2438 which is Ex. PW20/6.
17.2 On 19.02.2015 he sent the viscera of deceased to FSL through Ct. SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 12 of 43 PS Shahbad Dairy Labh Singh vide RC No. 25/21/15 which is Ex. PW20/7 and after deposition, Ct. Labh Singh handed over the acknowledgement which is Ex. PW20/8.
17.3 On 20.03.2015, 14 sealed pullandas/envelops/parcels alongwith four sample seals to FSL through Ct. Sandeep vide RC No. 45/21/15, 46/21/15, 47/21/15 and 48/21/15 which are Ex. PW20/9, Ex. PW20/10, Ex. PW20/11 and Ex. PW20/12. After deposition, Ct. Sandeep handed over the acknowledgements from FSL which are Ex. PW20/13, Ex. PW20/14, Ex. PW20/15 and Ex. PW20/16.
17.4 On 09.04.2015, he sent two pullandas to FSL through Ct. Sandeep vide RC No. 88/21/15 which is Ex. PW20/17 and Ct. Sandeep handed over the acknowledgement received from FSL which is Ex. PW20/18.
18. PW22 Amar Pal Singh, Assistant Director, RFSL, Chanakyapuri examined the exhibits and prepared his report which is Ex. PW22/1.
19. PW23 Krishan Kumar, exhibited that school admission form of accused Mohd. Bilal as Ex. PW23/1, copy of admission register as Ex. PW23/2 and certificate issued by Mr. Ish Arora, the then Head Master/Principal as Ex. PW23/3. As per record, date of birth of accused Mohd. Bilal is 21.04.1995. Accused Mohd. Naseem took admission in the name of Mohd. Bilal.
20. PW24 Anil Kumar Tripathi, exhibited the certified copy of admission form of accused Sanjay as Ex. PW24/1 and admission register as Ex. PW24/2 and certificate issued by Devender Kumar Ahlawat, Head SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 13 of 43 PS Shahbad Dairy Master, NP Co-Ed Day Boarding Middle School as Ex. PW24/3. As per school record, date of birth of accused Sanjay is 30.06.1996.
21. PW25 Dr. Lingaraj Sahoo, Senior Scientific Officer (Chemistry), FSL. He examined the exhibits and prepared his report which is Ex. PW25/1.
22. PW26 Dr. Dhruv Sharma, Assistant Director, Biology, FSL. He examined the exhibits and prepared his report which is Ex. PW26/1 and he exhibited allelic data attached with the report as Ex. PW26/1A.
23. PW27 Inspector Mahesh Kumar visited the spot i.e., Vacant land D-Block, Sector-5, DSIDC Bawana, Delhi on 19.03.2015 on the request of IO Inspector Sanjeev Kumar. He took the measurement and prepared the scaled site plan which is Ex. PW27/A.
24. PW29 is Rajiv Vashisht, Nodal Officer, Bharti Airtel Ltd. He exhibited certified copy of enrollment form in the name of PW30 Lalu Mehto with respect to mobile No. 8826174045 as Ex. PW29/A, certified copy of CDR from 10.12.2014 to 24.12.2014 as Ex. PW29/B, certified copy of location chart as Ex. PW29/C and certificate under section 65B of Indian Evidence Act as Ex. PW29/D. This number 8826174045 was recovered from accused Naseem.
25. PW30 is Lalo Mehto. He deposed that he purchased the SIM in his own name which was used by his son Rohit. He further deposed that at the time of purchasing the SIM, he handed over photocopy of his voter ID Card. He further deposed that in November 2014, the said phone number was with SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 14 of 43 PS Shahbad Dairy his son Rohit and one day when he was going to Metro Vihar, Shahbad Dairy, Bawana via bus and when he alighted down from bus, he noticed that the phone had been stolen. He further deposed that neither he nor his son Rohit made any complaint to the police regarding theft of mobile phone number.
He was cross examined by Ld. Addl. PP for the State, however, he could not recollect that mobile number as 8826174045.
26. PW31 is Prashant Kumar, Alternate Nodal Officer, Vodafone Idea Ltd. He exhibited prepaid application form with respect to mobile No. 9582053558 (Mohan Lal) as Ex. PW31/1, postpaid customer application form with respect to mobile No. 8447541328 (Manjeet) as Ex. PW31/2, certified copy of CDR with respect to mobile No. 8447541328 from 10.12.2014 as Ex. PW31/3, certified copy of location chart as Ex. PW31/4 and certificate under section 65-B of Indian Evidence Act as Ex. PW31/5.
MATERIAL WITNESSES 27.1 PW5 Mohan Lal, is the father of deceased. He deposed that he and his deceased son were government employees in NDMC and when his son became a permanent employee, a bhandara was done by them in the office. He further deposed that his son told him in the office that he was leaving early for the house, he asked him to wait for him, however, he returned back home to Holambi Kalan by 04:00 PM. He further deposed that at about 07:00 PM when he returned back home, his son was not present at home and his wife informed him that he had gone to attend some marriage. He further deposed that when he called his son on his telephone, he informed that he was alongwith accused Sanjay, Sameer and one other person and thereafter, his mobile got switched off and could not be contacted again.
SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 15 of 43 PS Shahbad Dairy 27.2 He further deposed that his wife told him that Manjeet would come back after completing his duty next day. However, when his son did not return back home even on the next day, he went out in his search. He went his office and got the FIR registered through Net and after taking printouts he handed it over at PP Metro Vihar. He further deposed that on 12 th day of month 2014, someone from the police post asked him to come to police station as some dead body was lying Ambedkar Hospital. He accordingly went to Ambedkar Hospital and identified the dead body as of his son vide statement which is Ex. PW5/1 and after postmortem, he received the dead body.
27.3 He was cross examined by Ld. Addl. PP for the State and during cross examination he stated that before leaving the office, deceased Manjeet informed him that he had to attend a marriage in the evening and his wife informed him that Manjeet had taken Rs. 350 from her. He stated that during telephonic conversation, his son told him that he was with Sanjay, Sameer and Naseem. He also stated that when he went to their houses, their families told him that they had left the previous evening to attend a marriage and they had not returned till that time. He stated that the postmortem was conducted on next day i.e., 18.12.2014.
27.4 During cross examination done on behalf of all accused persons, he denied that while leaving office, his son informed him that he was going to visit some Baba. He denied that on the day of incident, his son was not with the accused persons. He denied that his son believed in tantra-vidya. He denied that on 12.12.2014 he went to meet Baba as his job had become permanent. He denied that his son had been killed in connection with tantra vidya.
SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 16 of 43 PS Shahbad Dairy 27.5 He stated that accused persons had no enmity with him or his son. He went to the house of accused persons around 13/14.12.2014 and it was informed by neighbours that no one was present at the house. He stated that his son was not addicted to liquor or any other intoxicant.
27.6 On 28.02.2020 PW5 Mohan Lal was further examined and he deposed that he got issued two SIMs of mobile Nos. 9582053558 and 8447541328 in his name out of which mobile No. 9582053558 was being used by him whereas mobile No. 8447541328 was being used by his son Manjeet. He further deposed that on the day of incident i.e., 12.12.2014, he had talked with his son on mobile No. 8447541328.
28. PW6 Raj Shah deposed that on 14.12.2014 at about 04:00-04:10 PM when he was going from Holambi Kalan towards Metro Vihar, he saw a large crowd collected there near D-Mall, Sector-5, Bawana. He went there and saw a headless dead body lying there and there was blood also lying at the spot. He further deposed that he went to his shop situated in Phase-II, Holambi Kalan and informed the police post Metro Vihar about the dead body while going towards his shop. He further deposed that thereafter, he came back to the spot alongwith police officials and showed the spot where dead body was lying.
29.1 PW8 Vinod deposed that on 12.12.2014 four persons namely Manjeet (deceased), Sanjay, Bholu @Mohd. Sameer and Nanhe @ Naseem Khan travelled in his Gramin Sewa Vehicle. He further deposed that when they reached JJ Colony Bawana, all four persons alongwith other passengers got down from his vehicle and all four persons paid him fare Rs. 40/-. He further SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 17 of 43 PS Shahbad Dairy deposed that when he was standing and waiting for other passengers, all the four persons returned back after about 10-15 minutes and sat in his vehicle and got down at DD Mall, Sector-5, Bawana and paid Rs. 40/- as fare.
29.2 He further deposed that on 18.12.2014, he came to know that a headless body was recovered from near DD Mall. He further deposed that when he was waiting for passengers, all the three accused persons came and on seeing him, they hesitated to sat in his vehicle. He further deposed that when he asked them as to why they were not sitting in his vehicle and about the fourth person, they did not pay any heed and started moving away.
29.3 He was cross examined by Ld. Addl. PP for the State wherein he stated that he came to know about the recovery of headless body on 14.12.2014 whereas on 17.12.2014, he came to know that the headless body was of Manjeet, who travelled in his vehicle on 12.12.2014. He denied that accused persons told him that some altercation took place between them and Manjeet over smack and they killed Manjeet. He denied that on 23.12.2014 he informed the police officers that on 18.12.2014, three accused admitted before him that they had killed Manjeet.
29.4 During cross examination done on behalf of accused persons he stated that he knew that all accused persons reside in B-Block, Metro Vihar, Holambi Kalan, however, he did not know their exact addresses. He stated that he knew Manjeet from before as he was a resident of his colony.
WITNESSES OF INVESTIGATION 30.1 PW1 SI Surender Kumar deposed that on 14.12.2014 at about SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 18 of 43 PS Shahbad Dairy 04:30 PM when he was present in police post, Ram Shah, who worked as a photographer came and informed him about a dead body lying towards back side of D Mall, Sector-5, DSIDC, Bawana and DD No. 15PP was recorded in that regard. He further deposed that thereafter, he alongwith Ct. Ashwani, Ct. Jasvinder and informant Ram Shah proceeded towards D Mall and found that dead body of a male was lying towards backside of D Mall. He further deposed that it was a headless dead body and was wearing baniyan, shirt and underwear and near the wall there were some stones lying which had blood stains. He further deposed that a Navy Blue colour pants and Black colour jacket alongwith Black shoes and socks were also found lying near the wall. Two baans dandas were dug into the ground at a distance of about 20 steps from the dead body and naked statues of a man and a woman were also found within those dandas and same were found attached to a tokari kept there. One quarter bottle of whiskey was also found lying there.
30.2 He further deposed that crime team was called at the spot and senior police officials also reached there. He further deposed that spot was got photographed and police officers were sent in the adjoining area for information about the dead body but it could not be identified. He further deposed that he made his endorsement on copy of DD No.15PP and prepared rukka which is Ex. PW1/1 and handed over the same to Ct. Ashwani for registration of FIR. He further deposed that IO Inspector Sanjeev also came at the spot. He further deposed that five blood stained stones found at the spot were seized vide seizure memo which is Ex. PW1/2, blood stained clothes i.e., jacket, pants and a belt were seized vide seizure memo which is Ex. PW1/3, pair of shoes and socks were seized vide seizure memo which is Ex. PW1/4. He further deposed that blood stained earth, earth control, blood SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 19 of 43 PS Shahbad Dairy stained portion of wall, a piece of wall having no blood stains were picked up from the spot and same were seized vide seizure memo which is Ex. PW1/5. He further deposed that the statues, quarter bottle, small bottle of honey, one angocha, etc were also seized vide seizure memo which is Ex. PW1/6 and two dandas with rope were seized vide seizure memo which is Ex. PW1/7. He correctly identified the case property and exhibited jacket, pants and belts as Ex. P1 (colly), a pair of shoes and a pair of socks as Ex. P2 (colly), an empty quarter bottle, a bottle bearing lable of Dabur Honey, two small matkas (baroli) and statues of naked male and female figure in a basket alongwith one red and white angocha, a broken tulsi mala, supari and black thread as Ex. P3 (colly), a cane basket kept in polythene bears Bhagta de Hatti and other words in Hindi as Ex. P4 (colly), five pieces of stone as Ex. P7 and two dandas alongwith one thick cotton thread (rassi) as Ex. P8.
31.1 PW4 Ct. Jaswinder deposed that on 14.12.2014 on receipt of information, he alongwith SI Surender and Ct. Ashwani went to the spot i.e., DDA land behind D Mall, Metro Vihar where they saw a headless dead body lying there. He further deposed that Inspector Sanjiv Chahar and other senior officers also reached at the spot and crime team was called and spot was got photographed and dead body was sent to mortuary for postmortem.
31.2 He further deposed that on 27.12.2014 all three accused persons were arrested, when they were produced in custody, vide arrest memos which are Ex. PW4/1 (Sanjay), Ex. PW4/2 (Sameer) and Ex. PW4/3 (Naseem). He further deposed that on the same day, accused persons were taken to spot of incident where they identified the same and pointing out memos Ex. SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 20 of 43 PS Shahbad Dairy PW4/1A, Ex. PW4/2A and Ex. PW4/3A were prepared.
31.3 He was cross examined by Ld. Addl. PP for the State wherein he stated that on 14.12.2014 duty officer handed over the copies of FIR to him to deliver the same to senior officers and Area Magistrate and accordingly, he delivered the same to officers.
31.4 He stated that on 18.12.2014 he went to mortuary, BSA Hospital when postmortem was conducted. Dead body was identified by brother and father of deceased, who were present there. He further deposed that after postmortem dead body was handed over to his father vide memo Ex. PW4/4.
31.5 He stated that on 28.12.2014, accused persons pointed out the spot of incident and the spot where they consumed drugs on the day of incident and some articles were seized from the place on being pointed out by accused persons vide seizure memo which is Ex. PW4/5. He further stated that accused Naseem pointed out towards a piece of blade lying at the spot stated that same had been used to inflict injury on the neck of Manjeet. The said blade was seized vide seizure memo which is Ex. PW4/6. He further stated that accused Sanjay took us to his house in Holambi Kalan from where he produced pants which he worn at the time of incident and same was seized vide seizure memo which is Ex. PW4/7. He further stated that accused persons took them to JJ Colony, Bawana in search of one Anita but she could not be located. He stated that accused persons were taken to MV Hospital where their blood samples were taken and seized vide seizure memo which is Ex. PW4/8. He further stated that on 27.12.2014, accused persons were interrogated and their disclosure statements Ex. PW4/9, Ex. PW4/10 and SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 21 of 43 PS Shahbad Dairy Ex. PW4/11 were recorded.
31.6 During cross examination done on behalf of accused persons namely Sanjay and Samir, he stated that 15-20 peoples were present at the spot, however, IO did not record their statement. He stated that they left from the police station to the spot on 28.12.2014 in a gypsy and one private vehicle i.e., Maruti 800. He stated that the distance between place of incident and place where accused persons purchased the drug was about 5 km. No site plan was prepared on 28.12.2014. He stated that the number of house at Holambi Kalan is 666 and the distance between the place of incident and Holambi Kalan is about 400-500 km.
32. PW10 SI Sajjan Singh deposed that on 16.12.2014, investigation was marked to him as Inspector Sanjeev Chahar had gone out of station. He deposed that on 18.12.2014, father of deceased came to PS and claimed that he identified the dead body of deceased. Thereafter, he alongwith Ct. Jaswinder went to BSA Hospital. He recorded dead body identification statement of father and brother of deceased. He further deposed that he prepared the inquest papers, brief facts which are Ex. PW10/1 and death report which is Ex. PW10/2.
33.1 PW21 HC Ashwani deposed on the lines of PW1 SI Surender qua recovery of dead body, registration of FIR and identification of dead body after postmortem.
33.2 During cross examination, done on behalf of accused Naseem, he stated that he and SI Surender made search for the head of headless body in the SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 22 of 43 PS Shahbad Dairy nearby area but it could not be found. He also went towards other side of the wall in search of head, however, nothing was found on the other side of the wall. He stated that dandas at the spot were at some distance from the wall. He stated that Mohan Lal came to him directly and he did not disclose any description of any marks on body of his son to him.
33.3 During cross examination done on behalf of accused Sanjay and Samir, he stated that he did not ask names of other persons, who were accompanying Mohan Lal. He stated that the wall at the spot was about 10 feet high.
34.1 PW28 Inspector Sanjeev Chahar is the IO in this case. He deposed about the investigation carried out by him and on the lines of PW1 SI Surender and PW4 Ct. Jaswinder. He correctly identified accused the accused persons and case property and exhibited broken syringe as Ex. P9, small brown colour glass bottle of Avil with rubber lid and two pieces of broken bottle and seal as Ex. P10 (colly), wrappers of medicine Avil as Ex. P11 (colly) and pants worn by accused Sanjay @ Monkey at the time of incident as Ex. P12.
34.2 During cross examination done on behalf of accused persons he stated that he denied that no disclosure statement was made by accused persons. He denied that nothing was recovered at the instance of accused persons and case property was planted upon the accused persons by the police officials. He denied that public witness Vinod did not appear before him and he had not made any statement. He denied that accused persons never led the police party to JJ Colony, Bawana to search one lady namely Anita. SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 23 of 43 PS Shahbad Dairy STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
35. After closure of PE, statement of accused was recorded u/s 313 Cr.P.C. on 02.08.2023, wherein they denied all the incriminating evidences put to them. They stated that they have been falsely implicated in this case. They opted not to lead defence evidence.
36. Thereafter, matter was fixed for final arguments.
ARGUMENTS
37. I have heard Ld. Addl. PP for State and Sh. Sushil Jayant Ld. Counsel for accused Samir @ Bholu and Ms. Asha Jyoti Arya, Ld. Counsel for accused Sanjay @ Monkey and Naseem Khan.
38. It was argued by Ms. Promilla Singh, Ld. Addl. PP for the State that the allegations levelled against the accused are of serious nature. All accused persons are drug addicts and they used to inhale/consume contraband on regular basis. On the fateful day, deceased Manjeet met them as he was also in habit of using contraband. They purchased smack and injections of avil. While using the contraband, they had an altercation amongst each other. Deceased Manjeet refused to share his booti of contraband with the accused persons and accused Naseem inflicted an injury on his neck with the help of a blade whereas other accused persons helped in committing murder of the deceased by inflicting injuries on his head with stones lying near the spot. It was argued that PW5 Mohan Lal has deposed that he was informed by the deceased that he was in company of the accused persons. Moreover, deceased was last seen alive in the company of accused persons by PW8 Vinod. Accused SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 24 of 43 PS Shahbad Dairy Naseem was found in possession of mobile phone of the deceased and he also inserted his SIM in the mobile of the deceased for a brief period. During police remand, accused Naseem got recovered the weapon of offence i.e., blade, accused Sanjay got recovered his blood stained pants and broken bottles and syringes were also recovered at the instance of all accused persons lying near the spot. It was argued that it is a case based upon circumstantial evidence and prosecution has successfully proved the chain of circumstances against the accused persons to the effect that deceased was killed by the accused persons and none else.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC
625.
39. Per contra, Ld. Counsels for accused person have argued that testimony of PW8 Vinod of no consequence as he has turned hostile to the fact that accused persons had made extra judicial confession in his presence that deceased was killed by them. The alleged recovery shown by the IO at the instance of accused persons cannot be relied upon as it is from a public place which was accessible to the public at large and recovery had been allegedly effected after 16 days of the murder, which is highly improbable. It was further argued that the motive sought to be proved by the prosecution is very weak and prosecution has miserably failed to prove the complete chain of circumstances which is required to prove a case based upon circumstantial evidence. Therefore, accused persons are entitled to be given benefit of doubt and they SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 25 of 43 PS Shahbad Dairy may be acquitted accordingly.
40. I have heard the arguments at length and perused the entire record.
FINDINGS
41. The accused Sanjay @ Monkey, Sameer and Naseem have been charged for the commission of offence punishable under Section 302/34 IPC.
42. The relevant sections are reproduced as under:
SECTION 302 IPC Punishment for murder.--Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.
SECTION 34 IPC Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]
43. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 26 of 43 PS Shahbad Dairy Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
44. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
45. The pith and substance of the prosecution's case is that on 12.12.2014, deceased Manjeet left his office early and reached home. He left his home around 03:30 PM on the pretext of attending a party. He boarded a gramin sewa being driven by PW8 Vinod and he was also joined by accused persons. All of them went to JJ Colony Bawana to procure smack. They procured smack and avil injections alongwith syringe and in the same gramin sewa they came back to D-Mall, DSIDC, Bawana. They started consuming the contraband in a secluded area behind D-Mall and and while doing the same, SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 27 of 43 PS Shahbad Dairy some portion of avil injection of accused Naseem fell on the ground. He asked the deceased to give him some amount of avil injection but he refused for the same. An altercation took place and accused Naseem inflicted an injury with blade on the neck of the deceased. Thereafter, all accused persons pushed the deceased to the ground and committed his murder with the help of stones lying over there and fled away from the spot. Therefore, the motive which is being projected by the prosecution is that accused Naseem and deceased had an altercation on the pretext of sharing the contraband and the motive developed at the spur of the moment resulting in murder of the deceased.
MOTIVE 46.1 Motive assumes a notable role in a case based upon circumstantial evidence. Motive is an important link in the chain of circumstances sought to be proved by the prosecution in such cases.
46.2 In Nandu Singh Versus State Of Madhya Pradesh (NOW Chhattisgarh) Criminal Appeal No.285 of 2022, Hon'ble Supreme Court while reliying upon the case of Anwar Ali vs. State of Himachal Pradesh (2020) 10 SCC 166 clarified the legal position again in clear words. It was held in Anwar Ali's case which is here as under:
"24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar that if motive is proved that would supply a link in the SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 28 of 43 PS Shahbad Dairy chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under : (Babu case, SCC pp. 200-01)
25. In State of U.P. v. Kishanpal, this Court examined the importance of motive in cases of circumstantial evidence and observed : (SCC pp. 87-88, paras 38-39) '38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye- witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 29 of 43 PS Shahbad Dairy 46.3 Applying the ratio of Anwar Ali's case (discussed supra) to the present case, prosecution has failed to prove the motive to commit murder of the deceased. It is being pleaded that deceased and accused persons had consumed/inhaled smack after mixing the same in avil injection. First of all, after recovery of dead body the crime scene was thoroughly inspected by the crime team and it had collected many exhibits from the spot but there were no traces of any avil bottle, used syringes or any traces of contraband. The dead body was recovered on 14.12.2014 whereas the alleged recovery injection bottles, syringes, etc., at the instance of accused persons have been effected on 28.12.2014. It is a matter of record that the spot was an open vacant ground which was accessible to the public at large. Moreover, recovery has been effected without joining any public person despite their availability and IO did not make any effort to join anyone in the recovery proceeding.
46.4 Secondly, viscera of the deceased was preserved at the time of postmortem and as per FSL result which is Ex. PW22/1, no metallic poisons, ethyl or methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides were found in the body of the deceased. Blood sample of the accused persons and exhibits recovered at their instance from the spot including used syringe, needles and bottles of avil were also examined by the FSL expert. The report in this regard is Ex. PW25/1 wherein it is stated that no alkaloids, barbiturates and tranquilizers could be detected in exhibits i.e., blood samples of accused persons, injection, syringe, needle and avil bottles. Meaning thereby, the recovered exhibits from the spot i.e., used injection, syringes, needle, injection bottles of avil, viscera of deceased and blood sample of the accused persons were not having any traces of any contraband substance which is in contradiction of the theory of the prosecution that deceased and SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 30 of 43 PS Shahbad Dairy accused persons had consumed smack after mixing with avil injection. It is understandable that no traces were found in the blood samples of the accused persons as same were taken after 16 days of the murder but there ought to have been traces of contraband in the broken syringe, needle and avil bottle because they were lying at the spot since the day of the murder. Similar would have been the status of the viscera of the deceased. If he had consumed contraband then it ought to have been detected in some form in his viscera report. The absence of any contraband in the blood sample of accused persons, deceased and the recovered exhibits from the spot, has totally demolished the case of the prosecution that all of them were consuming contraband at the spot and they had an altercation on sharing of contraband which resulted in murder of the deceased. The so called motive, which developed at the spur of the moment, remains unproved and it is a huge lacuna in the case of the prosecution.
LAST SEEN EVIDENCE 47.1 Prosecution has tried to prove the fact that the deceased was last seen alive in the company of accused persons on 12.12.2014 around 09:00- 09:30 PM when all of them had gone to JJ Colony Bawana to procure smack and injections. The star witness of last seen theory is PW8 Vinod, who allegedly took the deceased and accused persons to JJ Colony, Bawana and he again dropped them back at DD Mall, Sector-5, Bawana. During investigation, he stated that on 17.12.2014, he came to know that a headless body of Manjeet had been recovered near DD Mall. On 18.12.2014, accused persons were seen by him and he asked about the fourth person and they made an extra judicial confession before him that they had killed Manjeet. This witness has supported the case of the prosecution but he turned hostile qua the fact that accused persons had admitted before him that murder was committed by them. He SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 31 of 43 PS Shahbad Dairy denied the suggestion that he did not approach the police prior to 23.12.2014 as he was afraid about his safety. He deposed that he had gone to the police station on the directions of the police. He could not tell as to by whom he was informed that headless body was of Manjeet. He admitted that he was picked up by the police officials from his house on 18.12.2014 and he had affirm that accused had travelled in his vehicle and he was made to sign some documents. Therefore, this witness has turned the tables on prosecution as far as extra judicial confession of the accused person is concerned.
47.2 Another aspect which is worth consideration of last seen theory is that even if it is to be believed that PW8 Vinod had seen the deceased around 09:00 PM with accused persons on 12.12.2014 even then the time period of last seen alive theory and recovery of dead body is significant. The proceedings initiated in this case after lodging of DD No. 15 PP dated 14.12.2014 which was registered at 04:30 PM. Meaning thereby, PW Vinod had seen the deceased at 09:00 PM on 12.12.2014 whereas his dead body was recovered on 14.12.2014 around 04:00 PM. The time gap comes to approximately 43 hours which is huge gap by any stretch of imagination. The theory of last seen alive can be proved by the prosecution if the time gap between the last seen alive fact and recovery of dead body are very proximate to each other. The longer the gap between these two facts, it would be more difficult for the prosecution to prove this theory.
47.3 Another fact which is worth consideration is that FIR was registered on 14.12.2014 on the basis of DD entry as the dead body was not identified by anyone. Recovery of a headless body is a sensational fact which ought to have been reported in the media, newspapers and other modes of SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 32 of 43 PS Shahbad Dairy sharing information alongwith the photographs. How come nobody identified the deceased till 17.12.2014. The statement of father of deceased namely Mohan Lal was recorded by the IO on 18.12.2014 wherein he stated that deceased had told him telephonically that he was in company of the accused persons and hence, identity of the accused persons was disclosed to the police on 18.12.2014 itself. It is hard to believe that persons, who had allegedly committed a gruesome murder were wandering on the road and they were easily spotted by a Gramin Sewa driver and they admitted of their own that they had committed the murder of the deceased. It is also suspicious that why PW8 Vinod did not inform the police instantly on 18.12.2014 that he had last seen the deceased alive in the company of accused person on 12.12.2014 and they had admitted before him about their involvement in the murder. His statement was recorded on 23.12.2014 and this delay has become significant considering the hostile testimony of PW8 Vinod on material aspect. In fact, it is stated by PW8 Vinod that he was taken by police on 18.12.2014 whereas his statement was recorded on 23.12.2014. It seems that his statement was recorded under compulsion and it was not voluntary. Therefore, considering the overall circumstances, I am of the considered view that prosecution has failed to prove the theory of 'last seen alive' in the present case as testimony of PW8 Vinod is not free from deformities of such nature which cannot be ignored by the court.
RECOVERY OF WEAPON OF OFFENCE AND OTHER EVIDENCES 48.1 The deceased left his home around 03:3004:00 PM on 12.12.2014 and thereafter, there is evidence that he was allegedly seen alive in the company of accused persons by PW Vinod around 09:0009:30 PM. If we SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 33 of 43 PS Shahbad Dairy go by the prosecution story and disclosure statements of accused persons, although they are not admissible, deceased and accused had consumed smack after mixing it in Avil injections on the same day near the place of occurrence. The altercation took place and accused Naseem allegedly inflicted an injury on the neck of the deceased with the help of a blade. Thereafter, deceased was beaten to death with help of stones by all three accused persons. Meaning thereby, the murder of the deceased was committed in the intervening night of 1213.12.2014.
48.2 Accused persons were arrested on 26.12.2014 in a kalandra and they allegedly got recovered the evidence from the place of occurrence. It is admitted case that the place of occurrence was a secluded and lonely ground which was accessible to the public at large. The murder allegedly took place 16 days prior to the date of alleged recovery of evidence i.e., on 28.12.2014. It is already considered by the court that recovery of broken bottles of avil injections, used syringes and wrapper of injection is of no consequence as FSL expert did not find traces of any contraband in any of these items which is not corroborated of the theory of prosecution with regard to consumption of contraband by the accused persons. The piece of blade recovered by the IO at the instance of accused Naseem is also not connected as a weapon of offence because no blood traces of the deceased were found on that blade. Moreover, it is highly improbable that accused traced out a piece of shaving blade after 16 days of the murder and identified it as the weapon of offence used by him. No explanation is available with the IO as to why public persons were not joined in the recovery proceedings. It is also interesting to observe that recovery has been affected jointly by the IO.
SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 34 of 43 PS Shahbad Dairy 48.3 To make a recovery admissible against an accused under section 27 of Indian Evidence Act, an investigating officer has to connect the recovery and prove that evidence was collected pursuant to disclosure statement of the accused. There is no clarification in the entire charge sheet as to which disclosure statement was recorded firstly by the IO but the recovery has been a joint one. If all three disclosure statements were already on record prior to recovery of evidence then it cannot be bifurcated as which recovery was affected pursuant to which disclosure statement. After recording of first disclosure statement of any of the accused, it was well within the knowledge of the IO as to what evidences were to be collected from the spot. Therefore, the effect of subsequent disclosure statement has become insignificant. As per section 27 of Evidence Act recovery of any fact, if done, pursuant to disclosure statement of the accused which was not in knowledge of anyone else, is admissible against that accused only. Since, it is not clear as to which accused was examined firstly by the IO, the recovery of exhibits cannot be said to be admissible against any of the accused under section 27 of Indian Evidence Act.
48.4 Considering the FSL result qua recovered exhibits, I am of the considered view that prosecution has failed to connect these facts/evidences against the accused persons as a material circumstance. Apart from this recovery proceedings, there is no connecting evidence which shows that accused persons were present at the spot of occurrence at the time of murder.
RECOVERY OF MOBILE PHONE OF DECEASED 49.1 It has been projected by the prosecution that accused Naseem was SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 35 of 43 PS Shahbad Dairy found in possession of mobile phone of the deceased make Celkon C349 when he was apprehended under Kalandara on 26.12.2014. Prosecution has examined PW5 Mohan Lal, who happens to be father of deceased and he has deposed that he got issued two SIMs and out of those SIMs phone No. 8447541328 was used by the deceased. If it is to be believed that accused Naseem was found in possession of phone of the deceased then PW5 was the most natural and important witness to identify that phone and to depose that it was used by his son. During the deposition of PW5 this phone was never shown to PW5 and same has been exhibited PW15 HC Ram Narayan. PW15 was part of the police party, who apprehended the accused persons on 26.12.2014. Therefore, this witness cannot exhibit the mobile phone of the deceased and mobile ought to have been put to PW5 Mohan Lal for proper identification. At the most, it can be believed that two phones were recovered by the possession of accused Naseem @ Nanhe but how come one of them was related to deceased, has not been proved by the prosecution with certainty.
49.2 As per seizure memo of the mobile phone which is Ex. PW15/1, the IMEI numbers of alleged phone of deceased are 911408250532507 and 911408250532515. CDR of mobile No. 8447541328 (alleged used by deceased and issued in the name of PW5 Mohan Lal) from 10.12.2014 to 24.12.2014 has been exhibited as Ex. PW31/3. Joint reading of Ex. PW15/1 and Ex. PW31/3 reveals that phone number 8447541328 was used in the mobile phone having IMEI number 911408250532500 and 408119103365454. The deceased was alive on 10.12.2014 and if he was using mobile No. 8447541328 and he was using celkon mobile phone, allegedly recovered from the possession of accused Naseem then IMEI numbers of this Celkon mobile phone ought to have been reflected in the CDR of mobile No. 8447541328. Meaning thereby, SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 36 of 43 PS Shahbad Dairy deceased Manjeet might be using this SIM number but in a different mobile. Therefore, it cannot be said to be proved by the prosecution that Celkon mobile phone recovered from accused Naseem was of deceased Manjeet. Hence, due to non identification by PW5 and non availability of IMEI numbers of recovered mobile phone in CDR of mobile number 8447541328, it can be said that recovered mobile phone make Celkon C349 was of deceased Manjeet.
MISSING LINKS IN THE PROSECUTION STORY 50.1 The landmark judgment on appreciation of circumstantial evidence is passed by Honb'ble Supreme Court in case titled as in Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622. Hon'ble Supreme Court laid down five golden principles while evaluating the circumstantial evidence and same have been reiterated by Hon'ble Apex court in case titled as Dr. Sunil Clifford Daniel vs. State of Punjab (Crl. Appeal No. 2001 of 2010 decided on 14.09.2012), the Hon'ble Supreme Court held as under:
"17. In Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622, it was held by this Court that, the onus is on the prosecution to prove, that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) 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 SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 37 of 43 PS Shahbad Dairy guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
50.2 In view of principles laid down by Hon'ble Supreme Court and applying the same to the present case it is crystal clear that prosecution has failed to prove the chain of circumstances in such a fashion leaving no doubt for the conclusion against the innocence of accused. The theory of last seen alive is totally based on the testimony of PW 8 Vinod. He has deposed that he had seen the deceased in the company of accused persons on 12.12.2014 around 09:30 PM but the dead body was recovered on 14.12.2014 around 04:00 PM. Therefore there is yawing gap between last seen alive and recovery of dead body and it goes against the prosecution. Prosecution has also tried to prove a fact that accused persons made an extra judicial confession before PW Vinod but the witness has turned hostile in this regard. Prosecution has failed to prove the fact that recovered mobile phone from the possession of accused Naseem was of deceased Manjeet or that deceased was using mobile number 8447541328 in the recovered mobile phone. Prosecution has failed to prove the theory of consumption of contraband by the deceased as there were not traces of contraband in the viscera of the deceased. Prosecution has failed to prove the theory of consumption of contraband by the deceased in company of accused persons soon prior his death. No traces of contraband were found by SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 38 of 43 PS Shahbad Dairy the expert in the recovered injection bottle and used syringes. One of the weapon of offence i.e., blade is also not related to the murder of the deceased as the head of the deceased was chopped of and his chest bones were even missing. This cannot be done with the help of half piece of a shaving blade. Moreover, there were no blood traces on the recovered blade. Therefore, the links of the chain of circumstances are scattered and not connected with each other to prove the fact that it were the accused persons only, who committed the murder of the deceased.
LACUNAS IN INVESTIGATION 51.1 The investigation in this case is full of lacunas resulting in failure of prosecution to prove its case against the accused persons.
51.2 Firstly, when the headless dead body was recovered, there is no investigation as to where the head had gone and for what purpose the deceased was beheaded by the murderer. Going by the version of accused persons, they had no purpose to conceal the head of the deceased and therefore, it was the duty of the IO to investigate the matter to trace out the head of deceased Manjeet.
51.3 Secondly, when the police reached at the spot for the first time, there were many articles which reflected that some kind of tantrik worship or some religious act was performed at the spot. There were naked statutes of male and female, empty honey bottle, earthen pots, one quarter bottle, cane basket, etc. The whole crime scene was indicator of 'human sacrifice' but the IO for the reason best known to him opted not to investigate the matter qua SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 39 of 43 PS Shahbad Dairy those exhibits and the circumstances which were self speaking at the crime scene about the motive of the murder.
51.4 Thirdly, the first disclosure statement of accused persons were recorded by the police when they were apprehended in the kalandara on 26.12.2014 and it is mentioned in these statements that they left the spot after inflicting injury upon the deceased. Although, prosecution has failed to prove their presence at the spot but even if it is presumed to be proved, then they had stated that there were not worship articles at the place of occurrence. After recording disclosure statements which were exactly contradictory to the scene of crime and condition of the dead body, it was duty of the IO to investigate the matter in detail by resorting to brain mapping, lie detector test and narco test etc. 51.5 Fourthly, as per the postmortem report be heading of the deceased is postmortem injury. Had it been the case that head of the deceased was chopped off at the time of murder then the injury ought to have been ante mortem in nature and not postmortem. This again reflects that head and chest bones were chopped of after the death of deceased. In fact, postmortem report is suggestive of absence of heart. Usually a dead body is not found in such mutilated condition in a murder case. IO ignored this fact and went ahead to solve the case on the basis of 'last scene theory'.
51.6 Fifthly, IO has failed to prove identification of deceased biologically. He took blood sample of father Mohan Lal but as per FSL result blood sample of mother was sent for comparison. Charge sheet is absolutely SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 40 of 43 PS Shahbad Dairy silent as to when blood sample of mother of deceased was taken. Although, dead body was identified by father but it was duty of the IO to prove the identity of deceased through scientific and biological evidence.
51.7 This court has no hesitation to say that either the IO of this case was negligent or smart enough to give another direction to the investigation instead of investigating the facts which were available on the crime scene right on the first day. This case is prima facie appears to be related to 'Human Sacrifice' instead of drug consumption theory.
51.8 Therefore, the lacunas left by the IO in investigation of this case are so grave that it created a serious doubt on the prosecution theory regarding involvement of accused Sanjay @ Monkey, Mohd. Sameer @ Bholu and Naseem Khan @ Nanhe in the murder of deceased Manjeet.
51.9 In Dayal Singh and Ors Vs. State of Uttranchal Criminal Appeal No. 529/2010 decided on 03.08.2012 while commenting on the role of investigating officer and other government official the Hon'ble Supreme Court held as under:
"39E. We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons so as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission pre judicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the court would be fully justified in directing the disciplinary authority to SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 41 of 43 PS Shahbad Dairy take appropriate disciplinary or other action in accordance with law, whether such officers, expert or employee witness, is in service or has since retired."
51.10 The intent of Hon'ble Apex court is that court should look into the conduct of the officers attached with the case and if any, misconduct, omission, negligence or deliberate effort to derail the prosecution's case is being observed then the court has to take such officers to the task. In the present case, Inspector Sanjeev Chahar has missed important and material evidences which ought to have been collected by him to prove the case against the accused persons. Hence, this court directs that suitable departmental action be taken against Inspector Sanjeev Chahar on account of his above mentioned lapses in the investigation and action taken report may be shared with this court also within four weeks from today. Copy of this order be sent to DCP concerned for necessary action at his end.
CONCLUSION
52. Thus, in view of the aforesaid findings, I am of the considered view that prosecution has failed to prove the chain of circumstances in this case against the accused persons beyond reasonable doubt. The collected evidence have not been proved as per law and the investigation seems to be shoddy, manipulated and deliberate attempt to safeguard the actual offender. The investigation carried out by IO is not only an injustice to the deceased but also to the accused persons, who are facing trial since 2015. This court is of the opinion that the actual killer is still at large where the innocents are put to trial by IO Inspector Sanjeev Chahar. Therefore, there is no hesitation in holding that the prosecution has failed to prove its case against the accused persons and SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 42 of 43 PS Shahbad Dairy they are acquitted from the allegations levelled against them for committing offence under section 302/34 IPC.
Digitally signed by
DHIRENDRA DHIRENDRA RANA
RANA Date: 2023.10.31
16:56:23 +0530
Dictated and announced in the open (Dhirendra Rana)
Court on 31.10.2023 ASJ:Special Judge (NDPS)
(running in 43 pages) (North), Rohini Courts/Delhi
SC No. 58465/16, FIR No. 1445/14 State Vs. Sanjay @ Monkey & Ors. Page No. 43 of 43
PS Shahbad Dairy