Delhi District Court
State vs Raju Sharma & Anr. on 27 September, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.77/09
FIR No.952/06
U/s 302/201/34 IPC
PS Badarpur
State
Vs.
1. Raju Sharma s/o Sh.Chittarmal Sharma
2. Gudiya w/o Raju Sharma
Both R/o- Village Sikarna
District Aligarh
Challan filed on : 11.03.07
Received by Fast Track Court on:06.10.09
Reserved for Order on : 14.09.2010
Date of Pronouncement : 27.09.2010.
JUDGMENT
Briefly stated the facts of the prosecution case are that on 08.12.06 one Laxmi Narayan Tiwari visited PS Badarpur and got recorded DD no.34B copy of which is Ex.PW16/A regarding missing of his brother Girish Tiwari. On 10.12.06 DD no.7A Ex.PW12/A was got recorded by Dubey Pradhan through telephone that one dead body wrapped in a gunny bag is lying in nala(drain), Molarband Extension, Mandir wali gali. On receipt of said DD ASI Tej Ram, Ct. Hargovind State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 1 of 59reached at the spot and found one dead body in gunny bag. The left hand and head of deceased was out of gunny bag and his tongue was also a little bit out of the mouth. The photographs were taken and dead body was taken out of the drain for identification. The gunny bag was cut with knife and one more plastic bag was found at the lower part of gunny bag on which Ankur Brand 555 Mota Besan manufactured by Shrinivas Dal Mill, C-21 Lawrence Road, Delhi was mentioned. The deceased was wearing vest and underwear. One Satish Tiwari identified the dead body as of his brother Girish Tiwari and he has stated that Girish has gone missing for last 4/5 days. On inspection of the dead body it seems that the deceased has been murdered and to conceal the identification it has been thrown in the drain. So, IO ASI Tej Ram made his endorsement Ex.PW17/A on DD no.7A and got recorded the case u/s 302/201 IPC. Post mortem on the dead body was conducted. Further investigation was carried out and on the basis of statements of witnesses it was revealed that deceased Girish had illicit relations with one lady named Gudiya. Suspected Gudiya W/o Raju Sharma was searched and some photographs were recovered from her house. During interrogation both Gudiya and Raju Sharma confessed about their involvement in the murder of Girish. Both the accused persons were arrested and after completion of investigation challan u/s 302/201/34 IPC has been filed.
State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 2 of 592. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 17.04.07.
3. The charge against the accused Raju Sharma has been framed u/s 302 IPC and against accused Raju and Gudiya were also charged u/s 201/34 IPC by Sh VK Bansal, Ld. ASJ on 22.08.07 to which both the accused persons pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 38 witnesses.
5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and ld.counsel on behalf of the accused, I have perused the testimonies of State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 3 of 59all the PWS.
8. PW1 SI Vinod has deposed that on 10.12.06 he and photographer reached at ganda Nala, Molarband Extension where the dead body was lying in decomposed condition. Ct.Girdhar took the photographs and he prepared the report which is Ex.PW1/A.
9. PW2 Ct.Hargovind has deposed that on 10.12.06 on receipt of DD no.7A he alongwith ASI Tej Ram reached at gali no. 68 Molar Band Extn. and found a dead body in gunny bag. The photographs were taken. Satish Tiwari identified the dead body as of his younger brother Girish Tiwari. ASI Tej Ram prepared the rukka and got the case registered through him. IO seized both the bags vide seizure memo Ex.PW2/A. Crime team inspected the spot and he took the dead body to mortuary where post mortem was conducted. He has further deposed that on 12.12.06 IO Insp. Varinder Singh received information regarding presence of accused persons in Molarband Extn. He alongwith IO and Ct. Inderjeet went to Molarband Extension from where accused Raju Sharma was arrested vide memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW2/D. IO recorded his disclosure statement which is Ex.PW2/D. He pointed out the place where he had committed the murder of Girish vide pointing out memo Ex.PW2/E and also got recovered chuni from his almirah from which State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 4 of 59he had allegedly killed Girish Tiwari. Chuni was seized vide memo Ex.PW2/F. He has further stated that accused led them to MB Road Shooting range, Tuglakabad and pointed out towards the nala where he had thrown the clothes of the deceased. One full sleeve shirt, one hosiery baniyan, one pant and from the pocket of the pant one cell phone and charger. The same were seized vide memo Ex.PW2/G. He identified the shirt Ex.P1, Pant Ex.P2, baniyan Ex.P3, Mobile Ex.P4, Ear Phone Ex.P5 and charger Ex.P6, chuni is Ex.P8, gunny bag is Ex.P9 and plastic bag is Ex.P10.
10. PW3 Ashok Kumar he know chander pal who is his relative and Guriya is the daughter of Chander Pal. He has telephone no. 9358632898 and he got his telephone recharged from Aligarh but he does not remember the number perhaps it starts from 32. He cannot tell on which date whose telephone came because a number of telephone used to received by him. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he denied the suggestion of Ld. APP that on 6.12.06 he had received a telephone from Gudiya on which he called the wife of Chander Pal who had talked with Gudiya vol. he cannot say if his children had called Gudiya's mother in his absence. Police obtained his signatures on blank papers. Whatever was written it was written subsequently.
State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 5 of 5911. PW4 HC Brij Mohan is the MHCM who made entries regarding depositing of case property in malkhana. The entries are Ex.PW4/A.
12. PW5 Ct. Ravinder has deposed that on 9.1.07 he took the pullanda from MHCM vide RC no.433/21 and deposited in AIIMS Hospital.
13. PW6 Smt. Gyan Kaur is the witness from Aligarh and she has deposed that she is having telephone no. 2283245. She does not know Gudiya and Chander Pal again said Chander Pal also resides in the same village but his house is away from her house. He has personally never received any telephone of Gudiya d/o Chanderpal but she cannot say if any children would have received any telephone. She has been declared hostile by the prosecution and cross examined by the Ld.APP for the State wherein she has admitted that she has told to the police that phones of neighbourers also come on her telephone. VOL. her phone is kept in open and anybody can received it and some time her neighbourers happens to be present there and they received the phone and talk. She denied that on 6.11.06 Gudiya and mother of Gudiya Munni Devi had talked on phone.
14. PW7 ASI Chanda Ram Yadav has deposed that on State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 6 of 5910.12.06 he had received information on his mobile no. 9810462949 from Narender Bahadur Dubey, Molarband Extension that in gali no. 68, E2 Block at the bank of nala one headless dead body is lying and he recorded this information in form no.E-30 and sent this information on net. The copy of form is Ex.PW7/A.
15. PW8 Ct. Padam Singh has deposed that on 10.12.06 he delivered the copies of FIR to Joint CP and DCP Hauz Khas.
16. PW9 Munni Devi has deposed that Gudiya is her real daughter and she was married to Raju. She had not received any telephone call from Gudiya. She does not know anything what happened. She has been declared hostile by the prosecution and cross examined by the Ld. APP for the State but in vain.
17. PW10 Lalji Rai has deposed that on 10.12.06 some police officials came and took search of Gudia. She was tenant at their house. Police had taken something from that room but he does not know what were those things. He admits his signatures on memo Ex.PW10/A. He has also been declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has stated that police had not seized 14 photographs or exercise book vol. police obtained his signature. Gudiya was also not present when police searched her room.
State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 7 of 59He had not gone through the contents of Ex.PW10/A before signing it. He did not identify the photographs and exercise book. He denied the suggestion that Gudiya also told that the face which is cut from these photographs was of her husband and same was cut by Girish Tiwari. He further denied that exercise book carrying handwriting of accused gudiya and also handwriting of Girish from page 1 to 8.
18. PW11 Dr. DN Bhardwaj has deposed that he alongwith Dr. Sunay Mahesh conducted the post mortem on the dead body of Girish. The post mortem report is Ex.PW11/A. On 22.1.07 they also gave opinion on the alleged weapon of offence. The opinion is Ex.PW11/B.
19. PW12 HC Jayanti Prasad has deposed that on 10.12.06 he was posted as duty officer and he recorded DD no.7A and 8A which are Ex.PW12/A and Ex.PW12/B. He also recorded the FIR of this case. The copy of FIR is Ex.PW12/C.
20. PW13 Ram Lakhan Pandey has deposed that on 11.12.06 he identified the deadbody of Girish Kumar Tiwari vide statement Ex.PW13/A and he also received the dead body vide memo Ex.PW13/C.
21. PW14 Satish Kumar has deposed that Girish Kumar was State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 8 of 59his real brother and he has stated that wife of Girish had told him that Girish had illicit relations with a female namely Gudia. He has stated that deceased had gone to his native village but he did not reach there. On 9.12.06 he wen to PS. His relations had already got recorded missing report. Key of the house was with Laxmi Narayan. On 10.12.06 he received an information about lying of dead body in nala of Badarpur. He went there and identified the dead body of his brother Girish. He informed the police that Girish was having illicit relations with Gudia as per information from the wife of Girish. Mobile number of Girish was 9213228037. Girish had informed his wife on telephone on 6.12.06 that he could be reaching native village on 7.12.06 again said dated he does not recollect it was 6th or before. Police interrogated Raju and took search of his house. One chuni was recovered from Almirah and one note book was also recovered and on its page name of Girish was written. In the notebook some account and romantic couplets were written. One photo album containing photographs were also recovered and seized. Accused Gudia on interrogation disclosed that from the photo the head had been torned by Girish. He identified the photographs Ex.PW A2 to A15 and notebook Ex.A16. He identified his signatures on his stated Ex.Pw14/A vide which he received the dead body of Girish. He also identified the signatures on the application Ex.PW13/A whereby IO had presented body of Girish for post mortem. He has further deposed State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 9 of 59that on 12.12.06 accused Raju Sharma pointed out a place near nala telling that he had thrown the clothes and mobile of deceased there. The same were recovered consisting of coats wool full sleeves, vest, shirt and pant and mobile and charger. He identified the photographs taken by the police at the house of accused as well as nala. He proved seizure memo of Ex.PW2/G. He identified the shirt Ex.P1, pant Ex.P2, Baniyan Ex.P3, mobile Ex.P4, ear phone Ex.P5, charger Ex.P6, chuni Ex.P8.
22. PW15 Radhey Shyam has deposed that accused Raju and Gudia resided as tenant in his house for 10 days prior to the date of occurrence. He was called by the Police in PS Badarpur and shown a chuni and other articles and he was told to sign some documents. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has admitted that accused Raju used to leave for his work in the morning and come back in the night. He denied the suggestion that in the absence of Raju some person used to come to Gudia. He denied the suggestion that on 12.12.06 Raju Sharma led the police to his rented room and pointed the cot lying the in the room and told that on the night of 5.12.06 he committed the murder of Girish by strangulating him. He further denied the suggestion that accused Raju took out a chuni from the shelf in the rented room and told the police that with the said chuni he strangulated State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 10 of 59Girish. He denied the police has prepared seizure memo cum pointing out memo Ex.Pw2/F. He cannot identify the chuni seized vide memo Ex.PW2/F.
23. PW16 Laxmi Narayan Tiwari has deposed that deceased Girish Kumar Tiwari was his cousin. Accused Raju, Gudia and deceased Girish used to live in the house of one Mr. Chauhan and they were having cordial terms. He had arranged ticket for Girish to go to his native village on 6.12.06. On 7.12.07 one Ram Lakhan Pandey came to his house at about 11.30/11.45 p.m and asked about Girish and he told him that he had gone to his native village. He told him that Girish has not reached his native village as Ram Lakhan had received telephone from Satish that Girish had not reached his native village. They search for Girish and finally on 8.12.06 they lodged a missing report vide DD no.34B Ex.PW16/A. On 9.12.06 Satish arrived at Delhi and searched for Girish. On 10.12.06 at about 9.30 a.m he came to know from TV report that a dead body of a human being has been found in Faridabad. They went to PS Sec.37 but they were told that no such incident had been found within their jurisdiction. They further came to know that dead body is there near a nala near gali no.68 Molarband Extn. They reached there and found the dead body packed in big size gunny bag. Police then arranged to take out the dead body from the bora and they identified the same. On 11.12.06 from the State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 11 of 59search of the house of accused one photo album and one diary was recovered and one chuni was also recovered. Both the accused were there in the premises. On 10.12.06 they had given two photographs to the police which are Ex.PW16/1 & 2. On 12.12.06 he received telephone call from PS Badarpur. IN PS he identified mobile, one pant, one full sleeves upper and one shirt belonging to Girish. He has further stated that these articles in fact were recovered by the police in his presence from a pahari situated in Tuglakabad somewhere near shooting range. He identified the articles. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has admitted some suggestion put by the Ld. APP in affirmative.
24. PW17 ASI Tej Ram has deposed that he reached at the spot on receipt of DD no.7A copy of which is Ex.PW12/A and saw a young body in a gunnybag having head and hand out lying on the bank of that nala. Photographs were taken. After cutting the jute bag one plastic bag was found. He prepared rukka Ex.PW12/A and got the case registered. He seized the jute bag vide memo Ex.PW2/A. Satish disclosed them that deceased had illicit relations with Gudiya. They went to the house of Gudiya and her house search was taken. In the presence of Gudiya, her house search was taken and from almirah some photographs were recovered in which head of a male person State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 12 of 59appearing that photo was found cut. One notebook was also recovered. Gudiya was interrogated and co accused Raju was found to be husband of Gudiya but Raju was found missing from the house. IO seized photograph of Raju vide memo Ex.PW16/B.
25. PW18 Ct.Inderjeet has deposed that on 12.12.06 accused Raju Sharma was arrested in gali no. 68 Molarband Extension at the instance of secret informer vide memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW2/C. Accused made disclosure statement which is Ex.PW2/D. Accused got recovered chuni from his house which was seized vide memo Ex.PW2/F. Accused pointed out the place where he had thrown the dead body and slippers vide memo Ex.PW2/E.
26. PW19 Ct. Tarif Singh has recorded DD no.34B copy of which is Ex.PW16/A.
27. PW20 MN Vijayan has proved the call details Ex.PW20/A of phone no. 9213228037.
28. PW21 Subhash Chand is the witness from Shriram Sweet, Ber Sarai and he has deposed that on 5.12.06 at about 12/1 noon Raju went back to his house after receiving call from his wife. On 6.12.06 State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 13 of 59again wife of Raju called him from duty. Raju was with him in day and night and due to rush of work he remained in the godown. On 10.12.06 Raju went to his house at about 4 p.m. Raju had taken one plastic bag of besan of brand angoor which they used to take earlier for making of ladoo but in the year 2006 they were using Rajdhani Besan. Raju might have taken the bag from the godown. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has admitted that telephone call was made by the wife of Raju at about 7/7.15 p.m. It is correct that after receiving the calls Raju used to remain keep quite silent.
29. PW22 Ct. Girdhar Singh is the witness from crime team and he has deposed that he took photographs from different angles which are Ex.PW22/A to C and negatives are Ex.PW22/A1, B1 and C1.
30. PW23 WHC Renu Rani has stated that on 12.10.06 accused Raju and his wife Gudiya were present in house no. 70 and she arrested accused Gudiya vide memo Ex.PW23/A and her personal search was conducted vide memo Ex. PW23/B. Her disclosure statement was recorded which is Ex.PW23/C.
31. PW24 Narender Bahadur Dubey is the President of RWA State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 14 of 59and he was informed about lying of human dead body near gali no.68. He went there and thereafter made telephone to the police from his phone 9810463949.
32. PW25 Ct. Harpal Singh has deposed that on 12.1.07 he deposited the viscera and PM report in FSL Rohini. ON 7.2.07 he collected the documents pertaining to mobile no. 9213228037 from the company which are Ex.PW20/A to D and the same were seized vide memo Ex.PW25/A. He has further deposed that he went to the shop of Subhash Chand at Ber Sarai where bill of telephone no. 26519170 Mark PW25/PX1 was collect and seized vide memo Ex.PW25/B. On 28.2.07 IO inquired from Radhey Shyam regarding mobile no. of Gudiya but complete number he does not recollect and first digits were 92105. The copy of the bill is Mark PW25/PX2 and it was seized vide memo Ex.PW25/C.
33. PW26 Azmat Ali Begs has deposed that telephone no. 2283308 was installed at his residence but he does not know anything about this case. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State but in vain.
34. PW27 Dr. Suney Mahesh has conducted the post mortem on the dead body alongwith Dr. DN Bhardwaj. The Post mortem State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 15 of 59report is Ex.PW11/A.
35. PW28 Ct. Rakesh Kumar is the formal witness who was to hand over DD no.7 to ASI Tej Ram.
36. PW29 SI Mahesh Kumar has prepared the scaled site plan which is Ex.PW29/A.
37. PW30 Soram Singh has deposed that he does not know anything about this case. But accused Raju Sharma and deceased Girish Tiwari were his tenants. He has also been declared hostile by the prosecution and cross examined by the Ld. APP for the State but in vain.
38. PW31 Insp. K.L. Yadav has deposed that he got the call details from the company of the mobile phone of deceased Girish. He proved Email Ex.PW31/A and CDR details consisting in two pages are Ex.PW31/B.
39. PW32 HC Shaukat Ali has deposed that on 19.1.07 he went to village Chandpur District Aligarh for verification of telephone number. He found one installed at the STD booth run by Ashok Kumar and another installed at the house of Gyan Kaur and from both State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 16 of 59the phones the call was received by Munni Devi.
40. PW33 Smt. Krishna Tiwari is the wife of Sh.Laxmi Narayan Tiwari and she has deposed that Gudiya was having illicit relations with deceased Girish Tiwari. Both were residing in a tenanted premises and she was residing after crossing 2/3 streets. About three years ago on 5th in winter season deceased came to her residence and asked her to tell her husband to board him in a train on the next day night on 6th. On 7th she received call from Satish that Girish has not reached in native village. She and her husband searched for him on 8th/9th and thereafter lodged a missing report. She identified the clothes of deceased which he wore on 5th when came to her residence.
41. PW34 Indu Tiwari is the wife of deceased and she has deposed that she came to Delhi when her child Shweta was of 3 months and she started residing there. She came to know from other tenants that Gudiya is having illicit relations with her deceased husband Girish Tiwari. She saw her husband and Gudiy holding the hand in weekly bazar. Quarrel took place between her and Gudia and Gudia uttered 'mai tujhe mita dungi' . She informed regarding this on telephone to Satish. She went back to her native village on 20.6.06 as she was having 6 months pregnancy. She received call from her State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 17 of 59husband that he will come on 7th as he will board on 6th and bring her to Delhi. Her husband did not reach on 7.12.06 till evening. She informed about this to Satish and made telephone on his number but it was switched off. Her jeth Satish and Ashok Kr Tiwari came to Delhi on 8/9.12.06. Her jeth disclosed him that pant and shirt of her husband was recovered from the house of accused Gudiya when she took the police to her house.
42. PW35 Arvind Shukla has deposed that both the accused purchase mobile phone from him and SIM Card number was 9210517909 . On the instruction of Girish he activated the said phone since Gudiya did not give any proof. Since there was no proof even after 10 days, the phone was de-activated. Thereafter Girish gave him proof and he filled up the form, the copy of bill book is Ex.PW35/A. Deceased Girish used to charge his mobile from his shop.
43. PW36 Leela Dhar Agarwal has deposed that he does not know anything about this case. He admitted that mobile phone connection no. 9213228037 was taken by someone in his name. The form is Ex.PW20/C. He does not know in whose name the phone was issued.
44. PW37 Insp. Virender Singh is the IO of this case and he State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 18 of 59deposed the version of ASI Tej Ram regarding lying of dead body near nala and getting the case registered. He prepared the site plan Ex.PW37/A. The dead body was taken into possession vide memo Ex.PW2/A. He interrogated accused Gudiya and recovered 14 photographs and one note book. He sent the dead body to mortuary vide application Ex.PW37/B. He conducted the inquest proceedings and filled up form no. 25.35 Ex.PW37/C, prepared brief facts which is Ex.PW37/D. He recorded the statements of witnesses. and got the post mortem conducted and after post mortem the dead body was handed over to Satish Kr Tripathi. He seized viscera vide memo Ex.PW37/E. He collected the call details. ON 12.12.06 on the basis of secret information he arrested accused Raju Sharma vide memo Ex.PW2/B and recorded his disclosure statement Ex.PW2/D. He prepared the pointing out memo of nala which is Ex.PW2/E. The chuni was got recovered by accused vide memo Ex.PW2/F. The got both the rooms of the house of Raju photographed which are Ex.PW14/4 and 5. He prepared the site plan Ex.PW37/F. He further deposed about arrest of accused Gudiya and recording of her disclosure statement. Accused got recovered the clothes/belongings of deceased which were seized vide memo Ex.PW2/G. He got the subsequent opinion which are Ex.PW11/B. He got prepared the scaled site plan. He sent the viscera as well as blood sample gauze to FSL . He seized the telephone bills.
State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 19 of 5945. PW38 Sh Jitender Kumar, Sr. Scientific Officer has examined the exhibits in FSL and gave his report which is Ex.PW38/A.
46. I have also perused the defence evidence. DW1 Bishamber has deposed that accused Raju and Gudiya as Raju is the son in law of his village and Gudiya is the daughter of his village. After marriage Smt. Guidya used to come to meet her parents family alongwith Raju. Both husband and wife bears good moral character. They are having two male children. The elder son's name of Guidya is Deepak Kumar and younger son's name is Shivam.
47. In the overall analysis of the testimonies of all the witnesses it is revealed that PW3 Ashok is the witness from Aligarh, PW6 Gyan Kaur is also the witness from Aligarh and PW9 Munni Devi, PW26 Azmat Ali Beg are again the witness from Aligarh where accused persons have allegedly made telephone calls, PW10 Lalji is the owner of house of Gudiya and Raju Sharma at the time of incident, PW13 Ram Lakhan Pandey has identified the dead body, PW14 Satish Kumar is the brother of deceased, PW15 Radhey Sham is landlord of accused Gudia and Raju before commission of present case crime, PW16 Laxmi Narayan Tiwari is the relative of deceased who had stated accused and deceased used to live in the house of Mahender State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 20 of 59Singh Chauhan and he remained in the investigation, PW21 Subhash Chand is the owner of sweet shop where accused used to work, PW24 Narender Bahadur Dubey is informed about lying of dead body and he informed the police, PW30 Soram Singh is the witness where Raju, Gudiya and deceased Girish were residing, PW33 Smt. Krishna Tiwari is the wife of PW16 and deceased had visited her premises 5th Dec., PW34 Indu Tiwari is the wife of deceased, PW35 Arvind Shukla is the shopkeeper from where accused persons purchased mobile of TATA company and PW26 Leela Dhar Aggarwal is the witness on whose name the mobile was purchased. These are the public witnesses in this case and remaining witnesses are police officials. In this case no one has seen the accused committed the crime. So, this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujrat 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times unconsciously it may happen to be a short step between moral certainty and legal proof -it has been indicated by the court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 21 of 59circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. So, in this case first the prosecution has to establish the presence of accused Raju Sharma at the spot. PW10 Lal is the owner of the house of accused Gudiya and Raju Sharma. He has stated that on 10.12.06 police took search of the house of Gudiya, his tenant but he does not know what things were recovered. He is a hostile witness. From the cross examination conducted by the Ld. APP it seems that he is the witness of the recovery of photo album and exercise note book from the house of accused Gudiya. Allegedly the incident has taken place at the house of PW10 but PW10 has not stated as to whether he had seen the deceased at the house of accused on the day of incident or not. Even it has also not been stated by him that he heard some noise at the house of accused Gudiya on that day or about the presence of accused accused Raju Sharma in the house on the alleged day of incident. PW14 Satish Kumar is the brother of deceased but he is the resident of district Gonda and he came to Delhi after hearing about the murder of his brother Girish. He has stated that key of the house of Girish was with Laxmi Narayan. PW16 Laxmi Narayan Tiwari has stated that deceased Girish and accused persons were living at the house of Mr. Chauhan and both were having cordial terms. He State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 22 of 59arranged a ticket for Girish to go to native village and train was scheduled for 6.12.06. On 5.12.06 Girish Tiwari came to his house at about 8/8.30 p.m but he was in the temple at that time and he met his family, had a cup of tea and left his house after telling his family that he would be coming back again soon. Since he was to leave Delhi for his native place on 6.12.06 his family people found his room locked and he did not meet any of them and they took that he had gone to his native place. On 7.12.06 one Ram Lakhan Pandey came to his house at about 11.30/11.45 p.m and asked about the whereabouts of Girish and told that Girish had not reached his native village as he had received call from Satish (PW14) brother of deceased. So, deceased Girish met with the family of PW16 in the evening of 5.12.06. PW33 Krishna Tiwari is the wife of PW16 and she has stated that she does not know the date, month and year but about three years ago on fifth of the winter season deceased Girish Tiwari came to her residence and asked her to tell her husband to board him in a train on the next day night on 6th and thereafter deceased Girish Tiwari did not meet them. On fifth she offered him dinner but he went away on the pretext that he has already received a call so he went away from her house. This witness also stated that deceased met her on 5th and on 6th night he was to go to his native village. She has not stated as to whether she told her husband to board deceased Girish in train or not. PW33 has stated that Girish went away on the pretext that he has already received a call so State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 23 of 59he went away from her house. It has not been stated as to from where he received the call and where he is going. Allegedly deceased Girish was to leave Delhi on 6th evening and on 5th evening he met PW33 Smt. Krishna Tiwari. PW30 Soram Singh is the owner of the premises where deceased and accused were previously living as tenants. But at the time of incident both deceased and accused persons were living at different premises. In this case there is no witness who had seen the accused with deceased on the alleged day of incident. PW21 Subhash Chand is the witness from sweet shop where accused Raju Sharma was working. He has stated that on 5.12.06 at about 12/1 noon telephone call was received by Raju from his wife and after taking permission he went to his house. On 6.12.06 accused Raju again went away to his house after receiving call from his wife. It has been admitted by the IO of this case that during those days, Gudiya wife of accused Raju was at the last stage of her pregnancy and her delivery dated was 12.12.06. It seems that due to that the wife of Raju used to call him to his residence. PW21 has further stated that accused Raju remained in the godown on 7,8 & 9th Dec. 2006 due to rush of work. In cross examination conducted by Ld. APP for the State he has stated that on 5.12.06 wife of Raju made call at about 7/7.15 p.m. In examination in chief he has stated that call was made by the wife of accused Raju at 12 noon or 1 p.m and in cross examination conducted by the Ld. APP he has stated that it was made by her at about 7/7.15 State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 24 of 59p.m. So, accused Raju went back to his house on 5th Dec. after receiving call from his wife and there is no question or evidence that he refused at that time and thereafter he went to his house. PW10 who is the owner of accused Gudiya and Raju Sharma has not stated that on the alleged day of incident, deceased Girish was seen at the house of Gudiya. So, last seen is absent in this case. In case Law 1990 (1) CC Cass 250 (HC) it is stated in head note that:-
'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.
'Sec.302 - Murder - Circumstantial Evidence - Its appreciation - No evidence on record to show that any one had seen the deceased in the company of the appellants at any time before the recovery of dead body - House of the appellant situates at some distances from the place of recovery of dead body - No ground to hold the accused guilty for the commission of the crime
48. Another chain of circumstance is that as to when the murder of Girish has been committed. PW16 Laxmi Narayan Tiwari has lodged missing report vide DD no.34B dated 8.12.06. I have also perused the said DD no.34B which is Ex.PW16/A. PW16 Laxmi Narayan has stated that on 8.12.06 when they could not find any clue regarding whereabouts of Girish, they lodged missing report of Girish in PS Badarpur at around 3.30 p.m. The contents of the said DD are State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 25 of 59reproduced hereunder:-
"Time 4.40 p.m - complainant came to PS and recorded his statement that his cousin Girish Kumar Tiwari s/o Shyam Tiwari r/o above went out from the house on 6.12.06 at about 7 a.m to work in shop at Lal Kuan who has neither reached at the shop nor came back to his house. he is searching him but could not find him. The description of his brother is - Height quarter to five feet, wheatish colour, round face, black hairs, think body and wearing pant and shirt. He is wearing shoes in his feet. He came to lodge the report. His statement is correct. From statement it is found to be a case of missing persons. Missing form filled up and sent to PCR and one copy has been handed over to SI Hansraj for further action''.
49. As per this DD no.34B copy of which is Ex.PW16/A lodged by the real uncle of deceased Girish Tiwari, it is crystal clear that deceased Girish had left his house in the morning of 6.12.06 at about 7 p.m. But as per the alleged disclosure statements of both the accused, the murder was committed on the night of 5.12.06. If the murder has been committed on 5.12.06 then there is no question of PW16 to state in DD no.34B that deceased Girish had gone for his job in the morning of 6.12.06. The charge has been framed for committing the murder on the intervening night of 06/07.12.06. If these dates are also taken into consideration, it has been stated by PW16 Laxmi Narayan and PW33 Krishna Tiwari wife of PW16 that deceased Girish was to board the train on 06.12.06 to go to his native village. No State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 26 of 59investigation has been carried out by the police as to whether any ticket was booked in the name of Girish for the alleged date and as to whether he travelled or not on the said date. It has also not been stated by PW16 as to by which train deceased was to go and at what time the departure of the train was scheduled. Vide DD no.34B it is crystal clear that deceased Girish left the house on 6.12.06 in the morning but neither he reached at his work place i.e. shop nor came back to his house. So, the story of committing murder in the intervening night of 6/7.12.06 also seems to be false. Further, the key of the house of Girish was with PW16 Laxmi Narayan as per the deposition of PW14 Satish Kumar, brother of deceased Girish. Even PW33 Krishna Tiwari who is the wife of PW16 has admitted in cross examination that Satish stayed in the tenanted premises of Girish and keys were available with her husband. If deceased Girish would have been murdered in the intervening night of 5/6.12.06, as to how the keys of the house of Girish came into the possession of PW16. This further make emphatically clear that deceased Girish was alive on the morning of 6.12.06. It might be that Girish had handed over the keys of his house in the morning of 6.12.06 while going for duty but there is no evidence in this respect neither deposed by PW16 nor PW33. So, if it is presumed that he had handed over the keys of his house on 6th morning to PW16 or PW33, then it cannot be said that Girish had been murdered on 5th Dec. (night) while as per disclosure statement of State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 27 of 59accused Raju, he allegedly committed the murder on 5th Dec. night. I have also considered the post mortem report. As per post mortem report time since death is mentioned as six days. The post mortem was conducted on 11.12.06. So, as per post mortem report it seems that the death was caused on 5th Dec. But the charge has been framed for commission of murder on the intervening night of 6/7.12.06 while deceased was to go to his native village in the evening of 6th Dec.06. So, it is not understandable as to how the murder was committed on 6th night. As per disclosure statement of accused Raju Sharma and Gudiya, the dead body was disposed of in the nala on the next day night of committing the murder. If it is presumed that the murder was committed on 6th night, then the dead body might have been disposed of on 7th night. But taking into consideration the deposition of PW21 Subhash Chand who is the employer of accused Raju Sharma, he has specifically stated in his statement that on the night of 7th, 8th and 9th Dec., accused Raju remained with him in the godown due to rush of work. So, when Raju was present with him at his work place on 7th night, it is not understandable as to how the dead body was disposed of in the nala by him on the night of 7th Dec.2006. In view of the above discussions, prosecution could not establish as to on which date the present case murder has been committed and this create doubt in the case of the prosecution.
State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 28 of 5950. Further, PW24 Narender Bahadur Dubey is the witness who informed the police about lying of dead body from his mobile no. 9810463949 on 10.12.06. First of all DD no.7A Ex.PW12/A was recorded by PW12 HC Jayanti Prasad. In the said DD it has been informed by informant PW24 that one dead body is lying in bora/gunny bag in the nala(drain), Molarband Extension, mandirwali Gali. It was handed over to ASI Tej Ram. Again DD no.8A Ex.PW12/B was recorded at 10.36 a.m in which Narender Bahadur has given information that one headless body is lying near nala/drain. Both the DDs have been recorded in the present case. It has not been stated that these DDs were of different cases. So, firstly the information was passed on regarding lying of dead body in bora and then that headless dead body is lying near nala. In the present case the dead body was found packed in bora/nala and head of the body is visible in the photograph Ex.PW22/A to C available on file. So, both the DDs are contradictory to each other. This also create doubt in the story of the prosecution.
51. Accused Raju Sharma has been arrested in this case on 12.12.06. PW2 Ct. Hargovind has stated that Insp. Varinder Singh received secret information regarding the presence of accused in Molarband Extension and they went there and accused Raju Sharma was arrested vide memo Ex.PW2/B and his personal search was State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 29 of 59conducted vide memo Ex.PW2/C. PW12 has not stated about arrest of accused Guidya while she was also arrested on the same date. In cross examination he has stated that he does not know where IO got the secret information. There was no public person present in the street when Raju was arrested. The time of arrest of accused Raju has been shown as 8.10 a.m in his arrest memo Ex.PW2/B. It is not believable that at that time there was no public person available in the gali. However, if there was no public person in the gali, there were houses on both sides of the gali. But no public person has been joined nor any efforts has been made by the IO to associate public witnesses at the time of arrest of accused. PW14 Satish Kumar who is the brother of deceased has given different version from PW2 in this respect and he has stated that on 10.12.06 he alongwith police went to the house of accused Raju Sharma and Raju Sharma was present in his house and he disclosed that he had killed Girish by strangulation with the help of Chunni. He has clearly stated that the chunni was seized by police but it has not been stated that it was handed over by the accused. PW14 Satish has admitted in cross examination that on 12.12.06 at around 9.30 a.m he came to know that the police had arrested the killer of his brother and he alongwith Laxmi Narayan reached gali no.72 where accused Raju Shrama and Gudiya were found in the custody of police. On 10.12.06 accused persons were taken into police custody in suspicious circumstances. From the version of public witness PW14 State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 30 of 59Satish who is the brother of deceased Girish it is crystal clear that the accused persons were in custody of police w.e.f 10.12.06 and they were shown as arrested on 12.12.06. PW16 has also stated that both the accused were present at their house on 11.12.06. Further PW17 ASI Tej Ram has stated that accused Raju was found missing from the house and even from the sweet shop in Ber Sarai. PW37 Insp.Virender has also stated that he received secret information about accused Raju Sharma in Molarband Extn and he was arrested vide memo Ex.PW2/B. He has stated in cross examination that they went to Ber Sarai at the work place of Accused Raju Sharma but he was not present there while as per the testimony of PW21 Subhash who is the employer of Accused Raju Sharma has stated that police came to his godown on 10.12.06 at 4 p.m and Raju Sharma was present in the godown at that time and he was taken away by the police. When he was taken away on 10.12.06 it is not understandable as to how he was arrested on the basis of secret information from Molarband,Badarpur on 12.12.06. This falsify the versions of prosecution witnesses regarding arrest of accused Raju on 12.12.06. So, the arrest of accused Raju Sharma is doubtful.
52. PW23 WHC Renu Rani is the witness regarding arrest of accused Gudiya and she has stated that on 12.10.06 at about 11.20 a.m accused Gudiya was arrested vide memo Ex.PW23/A and her personal State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 31 of 59search was conducted vide memo Ex.PW23/B. Her disclosure statement was recorded which is Ex.PW23/C. Firstly PW23 has deposed the date of arrest of accused Gudiya wrong because it was 12.12.06. However, it was got corrected by the Ld. APP after putting a leading question. Secondly, no other public witness has signed the arrest memo of accused Guidya. In cross examination she has stated that she cannot comment if these two accused persons had been arrested by the police on 10.12.06 again said it would not be correct to say that they had been apprehended on 10.12.06. I have also perused the disclosure statement of accused Gudiya. No recovery has been effected on the disclosure statement of accused. So, her disclosure statement Ex.PW23/C is not admissible in evidence.
53. PW2 has stated that accused Raju Sharma was interrogated and his disclosure statement was recorded which is Ex.PW2/D. He pointed out the place of murder vide memo Ex.PW2/E and also got recovered chunni from his almirah from which he had killed Girish Tiwari which was seized vide memo Ex.PW2/F. The accused further took them to MB road shooting range Tuglakabad and pointed out towards nala where he had thrown the clothes of the deceased and one full sleeve shirt, one hosiery baniyan, one pant and from the pocket of the pant one cell phone and charger were recovered which were seized vide memo Ex.PW2/G. He identified these articles State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 32 of 59as Ex.P1 to P6, chuni Ex.P8 and gunny plastic bag Ex.P10. In cross examination he has stated that accused was interrogated in the street. and Radhey Shyam was joined at the time of recovery of chunni. But Radhey Shyam did not support the case in this respect. He has further stated that public witnesses were joined at the time of effecting recovery from Tuglakabad and those were brother of deceased and relatives. As the recovery was effected from the forest no public person came there. The clothes were dried when recovered. The clothes were not visible from the road. He had told to the police that chuni was recovered from the open rack. PW14 Satish who is the brother of deceased has stated that Chuni was there in the almirah and was recovered and seized from there by the police. PW14 has further stated that accused pointed out the place where he had thrown the clothes and mobile instrument of the deceased. He has stated that the articles were seized from the nala are the same but he has not stated that these the articles which his brother used to wear and mobile which his brother used to carry. In cross examination PW14 has stated that chuni in question was old one and it was not torn. The bridge was on the road whereas the nala was at a distant place from the bridge from where the clothes of deceased were recovered. He does not know if the nala in question crosses any road or not. Vol. he followed the police vehicle and reached the nala directly moreover he is not the resident of Delhi therefore he cannot give the exact position of nearby places. He State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 33 of 59admitted that there was a pulia on the nala from where clothes were recovered. It was on the small road. The clothes were lying by the side of nala and they were visible to public at large from the road. On 9.12.06 he opened the room of Girish and slept in the said room. On the bed lying in the room some children clothes were found kept. PW15 Radhey Shyam is the father of PW10 Lalji and is the landlord of accused Gudiya and Raju Sharma at the time of incident. He has stated that he was called by the Police in the PS Badarpur and he was shown a chuni and other articles and it was told to him that the said articles were recovered from his house and he should sign the documents. Both PW10 and 15 have been declared hostile. Both these witnesses have stated their address as H.No. 3062 Gali no. 70, Molarband Extn., i.e. the alleged place of murder. It seems that both these witnesses were residing at the place where the alleged murder of Girish was committed. But they have not stated that they have seen the deceased at their house sometime or that Gudia was having illicit relations with deceased Girish. Both these witnesses have denied about recovery of chunni from the shelf of rented room with which accused Raju had strangulated Girish Kumar Tiwari. Even both have not identified the chunni. PW16 Laxmi Narayan Tiwari has stated that on 11.12.06 the police searched the residential premises of two accused persons which was the house of landlord Radhey Shyam and one photo album and one diary was recovered by the police and one State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 34 of 59red colour chuni was also recovered by the police. Both the accused were present in the premises which was searched by the police. He has further stated that on 12.12.06 he went to PS and he identified articles like mobile telephone instrument, pant, shirt which belongs to Girish. These articles in fact were recovered by the police during investigation in his presence from pahari situated in Tuglakabad somewhere near shooting range. As per the case of prosecution it was recovered from nala while PW16 has stated that it was recovered from Pahari. PW16 has stated in cross examination that the cloths were lying just on the entry point of that pulia which was visible from the lane road also but some witnesses have stated that the clothes were not visible. Pulia spot was a dry and there was no water. It was a jungle area. The residence near around that pulia point was at a distance of around 50/60 meters further. The clothes i.e. pant shirt and hosiery articles were lying together without further pack in bag or article while as per the case of the prosecution, mobile phone and charger was also recovered from there but PW16 has stated that only clothes were recovered. He has further stated in cross examination that vehicles had been passed on that lane road but there was no person walking or present there. PW18 Ct. Inderjeet is also the witness about recovery of chunni and pointing out the place where the dead body was thrown. PW18 Ct. Inderjeet in cross examination has admitted that the almirah was in the wall and there was no door on the almirah. PW37 has further stated that when State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 35 of 59Satish Kumar Tripathi and Laxmi Narayan came to the house of accused his proceedings has already been completed regarding seizing the chunni from there. It mean chunni was not recovered in the presence of Satish Kumar Tripathi and Laxmi Narayan. As per testimony of PW14 the chuni, album and exercise book were recovered on 10.12.06 by the Police and as per testimony of PW16 these were recovered on 11.12.06. So, I have also perused the seizure memo. As per seizure memo Ex.PW10/A, exercise note book and album of photos were recovered on 10.12.06. The accused persons were arrested in this case on 12.12.06. It is not understandable as to how the recovery of chunni i.e. the alleged weapon by which the deceased was strangulated has been recovered before arrest of accused and it is also not understandable as how the photographs as well as exercise note book were recovered before arrest of the accused persons from their house. So, the seizure of chunni as well as photographs and exercise note book seems to be doubtful.
54. Pw37 Insp.Virender has also stated that accused pointed the nala where the dead body was thrown and thereafter he got recovered chunni. Accused Raju Sharma pointed out the place where he had thrown the clothes of deceased and got recovered the clothes. PW37 in cross examination has admitted that he went to the house of accused Raju Sharma and Gudiya on 10.12.06. In cross examination State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 36 of 59he has stated that the clothes were lying under the pulia and same were not visible from the road side while other Pws have admitted that the clothes were visible from the road side. However, it has been admitted that these clothes were lying in the open area. PW37 has further stated that both the public witnesses Satish and Laxmi Narayan accompanied the police to pulia from PS in TSR while both these witnesses have stated that they went in scooter and followed the police party going in their vehicle. He has further stated that village Tuglakabad is situated at the distance of 300 to 400 meter away from the pulia. There is residential colony of the Air force on the left side of the road. When the cell phone was recovered, it was switched of. PW34 Indu Tiwari has stated that her jeth disclosed to her that pant and shirt of her husband was recovered from the house of accused Gudiya when she took the police party at her house in the presence of her jeth Satish and Gudiya disclosed that she has murdered her husband. As per the case of the prosecution the clothes of deceased were recovered from near pulia of shooting range. Even PW34 who is the wife of deceased Girish has not identified the clothes before the court that these clothes were of her husband. Even PW14 Satish who is the brother of deceased has also not stated that the recovered clothes were of deceased Girish. So, there are contradictory statements regarding recovery of clothes of deceased in this case.
State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 37 of 5955. In this case some photographs and exercise book were also recovered by the police. PW2 stated in cross examination that he cannot tell whether any photograph was recovered from the house of Gudiya on 10.12.06. PW10 Lalji Rai in cross examination conducted by Ld.APP stated that police had not seized 14 photographs or exercise book. Gudia was present when her room was searched. He had not gone through the contents of Ex.PW10/A before signing it. Even after showing the photographs he has stated that his signatures were obtained but no photograph or exercise book was shown to him. The photographs are mark A2 to A15. PW14 has also stated that one notebook was recovered with album. From the testimony of the witnesses it is revealed that they have stated that photographs and exercise book were seized by police but they have not stated that these were handed over by accused. On perusal of the seizure memo Ex.PW10/A it is revealed that it does not bear the signatures of PW14 Satish Kumar who is the brother of deceased. PW16 in cross examination has stated that the photo album and note book diary were recovered from an almirah which was there in the wall of the room. It was open almirah without doors. PW17 ASI Tej Ram is the witness from police regarding recovery of photo album and notebook from the house of Gudiya vide memo Ex.PW10/A. PW37 Insp. Virender Singh has also stated that he searched the house of Gudiya and 14 photographs of her family were recovered and in each photograph the State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 38 of 59face of her husband was cut down and one notebook with obscene poetry was also recovered. In cross examination he has stated that the diary/exercise note book was seized from the mandir which was in the house of accused persons while other PWs have stated that it was seized from the almirah which was open. He has further stated that above said diary was recovered alongwith the photographs from the drawer of the mandir while the photographs were also allegedly recovered from the almirah. He did not make any site plan on 10.12.06 of the place from where he got recovered the diary as well as photographs. By replying this question he admitted that diary and photographs were recovered by him on 10.12.06. It not understandable as to how he recovered these articles on 10.12.06 before arrest of accused persons. There is no investigation as to how the exercise note book containing couplets (shero shayari) came to the house of accused Gudiya. These articles are stated to have been recovered from open almirah. It is well settled law that recoveries effected from open place are not good recoveries and this create doubt in the prosecution case. Reliance can be placed on case titled Salim Akhtar @ Mota Vs. State of UP, 2003 Supreme Court Cases (Cri) 1149 in which it is stated in head note A that:-
'Terrorist and Disruptive Activities (Prevention) Act, 1987 - S.5- Recovery of a polythene bag containing a pistol, cartridges, a bomb and RDX at the instance of accused - appellant - Recovery from an open place accessible to all and everyone - Conviction u/s 5 - Propriety - Pistol alleged to have been recovered not sealed and its State Vs.Raju Sharma & Anr.FIR no.952/06 Page No. 39 of 59
"number" or "make" etc. to fix its identity not mentioned in the recovery memo or FIR - No effort made by police to get any independent public witnesses at the time of alleged recovery - The only public witness (a photographer) examined was not only intimate but was also obliged to the police party - Held, Sec. 27 of Evidence Act what was admissible was the place from where the said polythene bag was allegedly recovery - The fact that some terrorist organisation had given the pistol and other articles to the appellant or its use, held, not admissible - since the recovery was made from an open place accessible to all and everyone, held, it was not possible to hold that the appellant was in possession of articles alleged to have been recovered from him - Hence conviction and sentence of appellant set aside - Evidence Act, 1872, Sec.27 - Criminal Trial - Possession of incriminating article
- Recovery of incriminating articles from an open place accessible to all - Inference of possession, held doubtful'.
56. The prosecution has tried to connect the accused with the present case through call details. PW35 Arvind Shukla has stated that on 27.10.06 accused Gudiya purchased TATA mobile phone in the name of their child Rinku and he also gave a SIM card no. 9210517909 and on asking proof they did not give any proof . Thereafter deceased Girish had given him the proof and the phone was re-activated since it was de-activated due to non submission of ID Proof. In cross examination he was confronted with his statement that he disclosed to the police that Smt. Gudiya and her husband came to his shop for purchasing the mobile. He also made improvement that he sold TATA mobile to Smt. Gudiya. He also made improvement that he disclosed to the police that he filled up the form for issuing the SIM card to accused persons and it was signed by deceased Girish. PW34 State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 40 of 59Smt. Indu Tiwari has stated the mobile number of her husband Girish as 9213228037. His other relatives have also deposed about the phone of Girish. PW36 Leela Dhar Aggarwal has stated that mobile connection number 9213228037 was taken in his name by some one. The form is Ex.PW20/C. As per testimony of PW36, the mobile phone was purchased in his name by someone but he did not disclosed as to who purchased the same on his name. From document Ex.PW20/C it is crystal clear that the phone was belonging to Leela Dhar Agarwal and not deceased Girish. PW31 Insp.KL Yadav has collected the call details and PW32 HC Shaukat Ali has gone to village Chandpur, District Aligarh regarding verification of telephone calls. In cross examination he has stated that he did not investigate in the city Aligarh. PW25 Ct. Harpal Singh has collected the call details from Nodal officer which are Ex.PW20/A and same were seized by IO vide memo Ex.PW25/A. PW20 MN Vijayan, Nodal Officer has provided the call details and he has also stated that Leela Dhar Agarwal was the subscriber of the telephone no. 9213228037. In cross examination he has admitted that the hard disc referred in PW20/B could be tempered with by hacking. Virus may also affect the same. The computer print out was taken on 7.3.2007. PW9 Smt. Munni Devi is a hostile witness and she denied that Gudiya had talked with her on telephone on 6.10.06 that she want money as she is going to delivery a child and asked for money which she refused. PW6 Gyan Kaur has stated that State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 41 of 59she personally never received any telephone from Gudiya. In cross examination she has stated that telephone is kept in open and anybody can receive it and sometime her neighbourer happens to be present there and they received the telephone talk. She denied that on 6.11.06 telephone of Gudiya was received and her mother Munni Devi talked with her. PW3 Ashok Kumar is the also the witness from Aligarh and he has stated that he cannot tell on which date whose telephone came because number of telephones were received by him. In cross examination conducted by the Ld. APP for the state he has stated that police had obtained his signatures on blank papers. Whatever was written it was written subsequently. In cross examination he admitted that he did not call Munni Devi to talk on telephone with Guriya. In view of the above version of each PW, it has come in evidence that telephone no. 9213228037 was not in the name of deceased Girish but it was in the name of some Leela Dhar. So when it could not be established that the said phone was belonging to deceased Girish there is no question of making call from the alleged phone of Girish. The witnesses PW3 Ashok, PW6 Gyan Kaur, PW9 Munni Devi who are the witnesses from Aligarh all have flatly refused that Gudiya had ever talked to them on Phone. In view of the above discussion, it could not be established by the prosecution that deceased Girish was owning a phone on the alleged day of incident. Further it could also not be established that accused Gudiya had a talk with PW3,6 & 9 on State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 42 of 5906.12.06.
57. I have also considered the medical evidence in this case. PW11 Dr. DN Bhardwaj, Addl. Professor Forensic Medicine, AIIMS Hospital alongwith PW27 Dr. Suney Mahesh had conducted the post mortem on the dead body of deceased Girish and gave subsequent opinion. They prepared the post mortem report Ex.PW11/A. I have also perused the same. As per post mortem report, following injuries are mentioned:-
1. Contusion of size 2x2 cm on the left side of neck below the mandible
2. There was extravasation of blood in the neck muscle on the right side of neck in area of 5x2 cm
3. There was also extravasation of blood on left side of neck in area of 4x2 cm.
4. There was also contusion on the lower lip left side with extravasation of blood.
The cause of death was asphyxia as a result of combined effect of smothering and ligature strangulation. Both PW11 and PW27 gave subsequent opinion which is Ex.PW11/B. It has been stated by them that the injuries on neck i.e. ligature strangulation was possible by that chunni. In cross examination PW11 has stated that the injury mentioned on the scalp region is possible by blunt object like lathi, rod etc. There was no circular and continuous ligature mark around the State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 43 of 59neck because body was decomposed and secondly soft ligatrue was used. PW27 has stated in cross examination that there was no lacerated wound on the body but only contusion over there so, it is not possible that blood had come out from the injuries. In the ligature strangulation there was no possibility of dribbling of saliva. In this case they have not seen saliva frothing from the mouth of deceased. The ligature marks were not visible around the neck but on post mortem contusion was present on the left side of the neck. They did not notice such sort of ligature around the neck. He has further staetd that it could be possible from the blunt force like compression by a ligature and it could not be possible due to rough ligature material.Both the injuries were anti mortem in nature and it is difficult to tell which has come first and which has come later and both can be possible simultaneously. They did not notice any stain on the chunni Ex.P8. Neither they got the chemical test of the said chuni nor they directed to get the same done. It is possible that such time of ligature strangulation can be done by one person as well as more than one person. It is not possible by one man to do smothering by one hand and with another hand to do ligature strangulation. He admitted that their opinion is presumptive and on the basis of medical science. Such type of injuries found by them can be possible by the same type of other chunni. In view of the above medical evidence and cross examination of both the witnesses, it has come in evidence that State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 44 of 59deceased Girish had some injuries which were caused by blunt force impact. This version of PW11 & 27 contradicts the case of the prosecution because as per the case of the prosecution as well as the disclosure statement of accused Raju Sharma, the alleged death of Girish was caused by strangulation with chuni. But both the doctors have stated that such type of injuries can be possible by the same type of other chuni. So, they are not sure and certain that the injuries on the person of deceased were caused with the chunni which they examined. Allegedly deceased was murdered after strangulation only by accused Raju Sharma, but PW27 has stated in cross examination that it is not possible by one man to do smothering by one hand and ligature strangulation by other hand. Even if accused Raju Sharma had put the chunni around the neck of deceased, the deceased must have raised some noise. But it cannot be believed that he put one hand on his mouth and with another he strangulated him. Further no ligature around the neck was found. So, the medical evidence also do not connect the accused with the present case offence. In case Law 1990 (1) CC Cass 250 (HC) it is stated in head note that:-
'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.
'Sec.302 - Murder - Circumstantial Evidence - Its appreciation - No evidence on record to show that any one had seen the deceased in the company of the appellants at any time before the recovery of dead body - House of the appellant State Vs.Raju Sharma & Anr.FIR no.952/06 Page No. 45 of 59
situates at some distances from the place of recovery of dead body - No ground to hold the accused guilty for the commission of the crime'.
58. In this case the case property has also been sent to FSL. PW38 Sh Jitender Kumar, Sr. Scientific Officer has examined the viscera and has given his report Ex.PW38/A. I have also perused the said report. As per report no poison or pesticides could be detected in exhibits.
59. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In this case it was disclosed to the police official that State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 46 of 59accused Gudiya had illicit relations with deceased Girish and thereafter accused Gudiya and her husband Raju Sharma were arrested in this case. PW34 Smt. Indu Tiwari has stated that neighbourer told her that Gudiya and her husband used to meet outside the house and one day she saw her husband and Gudiya when she was holding the hand of her husband in a weekly market and thereafter quarrel took place between her and Gudiya and Gudiya uttered 'mai tujhe mita dungi'. Accused Gudiya and her husband committed the murder of her husband due to illicit relations with her husband. On perusal of her cross examination it is revealed that she has made improvement regarding seeing her husband and accused Gudiya in the weekly market, quarrel took place between them as well as that she uttered 'mai tujhe mita dungi'. Further she has stated that regarding illicit relations some lady namely Suman and other ladies of the locality told her. Suman has not been examined in this case. The names of other ladies of locality has not been stated by PW34. She has admitted that she did not disclose the names of the ladies who disclosed to her regarding the illicit relations of Gudiya with her deceased husband again said she disclosed the name of Suman. So, her testimony in respect of illicit relation of her husband with accused Gudiya is doubtful. PW33 Krishna Tiwari has also stated that Gudiya was having illicit relations with deceased Girish Tiwari. In cross examination PW33 has stated that she did not tell to the police State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 47 of 59regarding quarrel between the wife of deceased Smt. Indu Tiwari and accused Gudiy in her statement because she came to know regarding this fact after the death of Girish Tiwari. It seems that prior to the date of death of Girish Tiwari, PW33 was not aware about the illicit relations and she came to know only after his murder. So, this version of PW33 is also not believable. PW30 Soram Singh who is the owner of the tenanted premises of Raju and Gudiya has stated that he does not know anything in respect of this case. He was declared hostile and cross examined by the Ld. APP for the State wherein he has stated that he did not stated to the police that he has seen twice Girish and Gudiya in compromising position so, he asked both the families to vacate the premises. PW16 Laxmi Narayan after being declared hostile has admitted the question put by the Ld. APP for the State in affirmative that deceased Girish had illicit relation with accused Gudia. In cross examination he has stated that deceased Girish used to earn around Rs.20 to 25 thousand a month from his profession work as stone plate scriber. He does not know how much amount he used to send to his family at native place and how much he used to spent on Raju Sharma and Gudia. He admitted that he has not stated in his statement that he had seen deceased Girish and accused Gudia in market area several times vol. he has stated about illicit relations. Since PW16 has not seen deceased Girish and accused Gudia anywhere with his own eyes, his deposition regarding illicit relations between them are doutbful. PW10 State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 48 of 59Lalji and PW15 Radhey Shyam are the witnesses where accused Gudiya and Raju were residing at the time of incident. But both turned hostile and did not support the case of the prosecution. PW15 in cross examination has denied the suggestion of Ld. APP that he came to know that in the absence of Raju some persons used to come to Gudia w/o Raju. Both the witnesses have not stated anything about illicit relations while the accused persons used to live at their house on rent and if any such thing was happening, they might be aware of the same. PW37 Insp.Virender Singh has specifically stated in his statement that at that time accused Gudiya was at the last stage of her pregnancy and her due date of delivery was 11.12.06. From the above circumstances of the case and evidence available on file, it create doubt in the story of prosecution about illicit relations of accused Gudiya with deceased Girish. It is stated in Yogi Choudhary etc. Vs. State of Bihar, 2005 CRI. L.J. 2285 that :-
'Penal Code (45 of 1860) Ss.300, 34 - Murder - Absence of eyewitnesses - Motive of accused to commit murder found not convincing - Even otherwise, motive alone could not be made basis of his conviction - No evidence that he was present at place of occurrence when murder was committed - As far as second accused was concerned, informant stated in Fardbeyan that he recognized voice of that accused - Complete go-by given to this statement by informant in his examination in court - Stating that he named that accused on suspicion - There was absolutely no evidence against both accused - entitled to acquittal'.
60. I have also considered the other circumstances of the case State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 49 of 59emanating from the testimonies of official witnesses. PW1 SI Vinod Pal is the witness from crime team and after inspection of the site he prepared his report Ex.PW1/A. However, during his presence no article was seized. PW2 Ct. Hargovind is the witness of investigation and he reached at the spot with PW17 ASI Tej Ram. Thereafter PW37 Insp.Virender also reached at the spot. They found dead body in gunny bag and in the gunny bag there was on plastic bag on which Ankur Brand 555 Mota Besan was found written. It is the case of the prosecution that accused had got this plastic bag from the sweet shop where he was working. So, I have considered the testimony of PW21 Subash Chand who is the witness from sweet shop. He has stated that on 10.12.06 Raju went to his house at about 4 p.m without taking any permission. Raju had taken one plastic bag of besan of brand Angoor which they used to take earlier for making of Ladoo. From his version it seems that accused Raju had taken the plastic bag on 10.12.06 while as per the case of the prosecution the dead body was thrown in the nala/drain prior to the said date and it was recovered on 10.12.06. He has further stated that in the year 2006 they used Rajdhani Besan. When in the year 2006 they were using Rajdhani besan it is not understandable as to how accused had taken the plastic bag of Angur Brand 555 Besan from the said sweet shop. On showing the plastic gunny bag to PW21 he has stated that the bag might have been taken by Raju. So, he is not sure and certain that this bag was taken from the State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 50 of 59sweet shop by accused Raju. Further in cross examination PW21 has stated that he had stopped using the angoor brand besan since 2005. He used to have the key of the room where the empty bag were kept. When the key of the room was with him, it is not understandable as to how accused Raju has taken the plastic bag from the room on his own. He further admitted that angoor brand besan used to be consumed by other persons. He also admitted that there is no specific mark on this bag to show that the besan of this bag was used in their godown. He has further admitted that Raju had not taken the bag in his possession and he has told the police in his statement that Raju might have taken the empty bag on the basis of suspicion or conjecture. He admitted that he identified the bag on the basis that it is identical one which was used in his shop, though, he is not sure that it is one of them. In view of the cross examination of PW21 regarding plastic besan bag in which the dead body was packed,it seems that the same was not taken from the sweet shop of PW21. So, this circumstance also could not connect the accused Raju Sharma with the present case crime. PW37 made endorsement of DD and PW2 got the case registered and PW8 Ct.Padam Singh delivered the copies of FIR DCP and Joint CP. Both PW2 and PW37 have further stated that crime team took the photographs and dead body was removed to hospital for post mortem. I have also perused the application Ex.PW37/B written by Insp. Virender Singh for preservation of dead body. In the said State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 51 of 59application it has been mentioned that the relatives of deceased are yet to come and dead body be preserved for 24 hours. It is the case of the prosecution that PW14 Sunil has met the police at the place where the dead body was found and he identified the same. But this application Ex.PW27/B is contradictory to the case of the prosecution which create doubt in the mind. PW37 conducted the inquest proceedings and filled up form no.25.35 which is Ex.PW37/C and prepared the brief facts Ex.PW37/D. PW37 got the scaled site plan prepared through PW28 SI Mahesh. The site plan is Ex.PW29/A. PW2 in cross examination has stated that the drain was about 3 feet from where the dead body was recovered while PW14 Satish who is the brother of deceased has stated that it was 60 to 70 feet. There was dirty water in the drain. The gunny bag was not visible however the head and one arm was coming out of the gunny bag. Seal after used was handed over to ASI Tej Ram. There was no mud on the clothes. In his presence elder brother of deceased did not tell anything about Gudia. PW37 has also stated in cross examination that there was no big talab/pond but there was big ditch in which the rain water can be collected. It is correct that there was no residential colony between the nala and the canal. Public persons can go upto the canal without any restrictions. He denied the suggestion that he could not conduct the inquest proceedings at the place of recovery on 10.12.06 as the dead body was not identified by the relatives. It is clear the dead body was State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 52 of 59identified at the place from where it was recovered. On 10.12.06 he had gone to the house of deceased Girish Tiwari and the said house was formally inspected by him after taking the key of it from the landlord. As per the testimony of PW33 the keys of the house was with her husband Laxmi Narain and the same were handed over to PW14 Satish who is the brother of deceased before 10.12.06 and even he stayed in the said room. So, the version of PW37 that he took the key from landlord seems to be false. It is possible that he had taken the keys from Satish. He has stated that he did not search the room of deceased Girish Tiwari. He did not prepare any document in respect of formally inspecting the said room. Laxmi Narayan was with him at that time. Inspection of room of deceased Girish create doubt in the mind because the brother of deceased was already residing in the said room that when he met him he must have told him about the room. But even though PW37 had gone to the said room. He denied the suggestion that the diary was found in the house of deceased. Allegedly the diary was recovered from the house of accused Gudiya. It is not understandable as to how the said diary came in her house while it was belonging to deceased Girish. PW4 HC Brij Mohan is the formal witness who produced register no.19 regarding deposit of case property in malkhana. From his cross examination it has come out that on 10.12.06 no entry of deposit of any parcel exits while on the said dated the bora in which the dead body was packed was recovered and State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 53 of 59seized. PW5 Ct. Ravinder took the pullanda to forensic deptt. of AIIMS and PW7 ASI Chanda Ram Yadav recorded the DD on the basis of information received from Dubey Pradhan stating that headless body is lying. In this case one DD no.7A was recorded regarding lying of dead body in drain packed in gunny bag. This DD was recorded at 10.10 a.m and thereafter DD no.8A was recorded at 10.36 a.m stating the headless dead body is lying. Both the DDs seems to have been got recorded by one person. This also create doubt. PW12 HC Jayanti Prasad has recorded DD no.7A, 8A as well as FIR of this case. PW18 Ct. Inderjeet joined the investigation at the time of arrest of accused Raju and recovery of clothes from nala. Pw22 Ct. Girdhar Singh took the photographs from different angles and he is a formal witness. PW25 Ct. Harpal Singh took the case property to FSL and deposited there. PW28 Ct. Rakesh handed over DD no.7A to ASI Tejram and he is the formal witness in this case.
62. It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.710-11, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
'10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused (3) the circumstances, taken cumulatively, should form a chain so State Vs.Raju Sharma & Anr.FIR no.952/06 Page No. 54 of 59
complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence'.
It is further held that : -
'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8'.
'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.
In case Law (2007) 6 Supreme Court Cases 32, Sujoy Sen Vs. State of West Bengal it is stated in headnote that:-
'Criminal Trial - Circumstantial evidence - Link in the chain of circumstances - If established - On the testimony of the first informant and what was stated in the FIR, held, link in the chain of circumstances not established - conviction reversed, Penal Code, 1860 - Section 302'.
In case law (2006) 10 S.C.C 183, Sunny Kapoor Vs. State, it is stated in head note that :-
'Criminal trial - Circumstantial evidence - Guilt not established - Held, for proving guilt of an accused u/s 302, the prosecution must lead evidence to connect all links in a chain so as to point guilt of the accused alone and nobody else - In the instant case, evidence adduced clearly fell short of the requirement and hence conviction of appellant u/s 302/34 unsustainable'.
State Vs.Raju Sharma & Anr.FIR no.952/06 Page No. 55 of 59
It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 26-27) that :-
'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.
It is stated in Idrish Bhai Daudbhai Vs. State of Gujarat, 2005, CRI. L.J. 1422 that :
'Penal Code (45 of 1860), Ss. 34, 300 - Common intention - Development at spur of movement - Altercation between accused and deceased over land transaction - Appellant accused alleged to have given stick blow on head of deceased - Other accused inflicted injuries with sickle and knife - Absence of material on record to show pre-concert or pre-arranged plan - If appellant accused exhorted after injuries were completed - He cannot be held guilty of sharing common intention with other accused - And it was first person to inflict injuries it was unlikely for him to imagine that other accused would go back to their house and bring weapon and inflict injuries - Thus common intention was not developed even at spur of movement - In such case exhortation by itself would not constitute common intention
- Further absence of stick injury in inquest punchnama - Eye State Vs.Raju Sharma & Anr.FIR no.952/06 Page No. 56 of 59
witnesses were also interested witnesses - Accused held entitled to benefit of doubt'.
It is stated in Hasan Murtza Vs. State of Haryana, AIR 2002 Supreme Court 762 that:-
S.300 - Murder - Proof - Allegations that accused - husband on account of material discord committed murder of his wife by dousing her with petrol and setting her ablaze - eye witnesses, mother of deceased has made material improvements in her evidence to prove her presence in house of deceased - Fact that said eye witnesses suffered no injury in process of protecting her daughter from burning to death, further enhances the suspicion as to her presence at time of incident - No person other than said eye witness claims to have seen accused at the scene of occurrence - No incriminating evidence e.g any material like burns or even soot from the burning of body to which accused must have suffered standing close, was noticed in the person or the clothes of accused - Mere fact that accused is proved to be not a good husband or father would not ipso facto lead to conclusion that he would commit the murder in question - conviction of accused solely based on testimony of eye witness, not proper.
In case Law Baldev Singh Vs. State of Haryana, 2009(1) Crimes 138 (SC) an important point has been stated that :-
'Conviction can be based on circumstantial evidence provided it passes the tests by the touch stone of law relating to circumstantial evidence evidence laid down as far back as in 1952'.
63. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 57 of 59reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the opinion that prosecution could not complete each and every chain of circumstances in this case without any reasonable doubt.
64. In view of my above discussions, I am of the opinion that the prosecution could not establish the complete chain of circumstances in this case while it is well settled principle of law that in a case of circumstantial evidence each and every circumstance has to be proved by the prosecution by leading legal, reliable and unimpeachable evidence. But I did not find any legal, reliable and unimpeachable evidence in this case. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving such chain of State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 58 of 59circumstantial evidence as would fasten the guilt on the accused Raju Sharma and Gudiya leaving no room for doubt. So, the prosecution has failed to prove its case against accused Raju Sharma u/s 302/201 IPC and Gudiya u/s 201 IPC. I therefore give the benefit of doubt to both the accused Raju Sharma and Gudiya and accused Raju Sharma is acquitted for the commission of offence punishable u/s 302/201 IPC and accused Gudiya is acquitted for the commission of offence punishable u/s 201 IPC. Both the accused are on bail. So, their bail bonds and surety bonds are cancelled and sureties are discharged. File be consigned to record room.
Announced in the open Court on 27.09.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Raju Sharma & Anr.
FIR no.952/06 Page No. 59 of 59