Delhi District Court
Sc No: 440987/16 State vs . Sonu & Ors on 16 December, 2022
SC No: 440987/16 State Vs. Sonu & Ors
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE- 02
SOUTH-WEST, DWARKA COURTS, DELHI
In the matter of:-
S. C. No 440987/16
CNR No. DLSW01-000075-2011
FIR No. 10/11
Police Station Dwarka North
Under Section U/s 302/328/34/120B/411 IPC
State
Versus
1. Sonu
S/o Sh. Rajender
2. Vinod
S/o Sh. Rajender Singh
Accused 1 & 2
Both R/o A-84, Shivani Enclave, Part-II,
Kakrolla, New Delhi. Raj Nagar, Part-I,
Palam Colony, New Delhi.
3. Sunny @ Mahesh @ Dudhiya
S/o Sh. Ramvir
R/o 118, Shivani Enclave, Part-II,
Kakrolla, New Delhi.
Judgment 1 of 58
SC No: 440987/16 State Vs. Sonu & Ors
4. Ayub
S/o Sh. Abdul Hamid @ Nandu
R/o C-35, Shivan Enclave, Part-II,
Kakrolla, New Delhi. ......Accused Persons
Date of institution 21.04.2011
Judgment reserved on 01.12.2022
Judgment Pronounced on 16.12.2022
Decision Acquitted
JUDGMENT
1. Accused persons are facing trial on allegations on entering into criminal conspiracy to murder Upender @ Muski and murdering him. They are also facing trial for administering intoxicating substance to complainant Pintu and Bhanu Pratap in furtherance of their common intention. Accused Vinod is also facing charge for having possession of a mobile phone belonging to Bhanu Pratap.
Judgment 2 of 58
SC No: 440987/16 State Vs. Sonu & Ors
FIR & Charge-sheet
2. Brief facts of the case are that on 13.01.2011, on receipt of DD No.8A at 7:30 AM SI Jagdish Chander (PW42) reached at House No. C-35, Shivani Enclave, Kakrola (later confirmed as plot no. 46-46A Shivani Enclave Part-II) where inside the room a boy Upendra @ Muski was lying dead whose neck was cut and bleeding. Near him a blood stained scarf was lying and there was blood on the clothes of deceased. An empty liquor bottle was found outside the room on which there was label of 8 PM. Outside room a shoe of black color was found and one black shoe was found near boundary wall. At the spot Pintu (PW1) was there whose statement was recorded. Statement of Pintu reads as under:
I am a resident of the above address. About a month and a quarter ago Chhote Khan resident of village Kesharpur District Bareilly U.P. came to Delhi with my brothers Bhagwan Das and Upendra @ Muski and a villager Bhanu Pratap s/o Ballister, Kallu S/o Omkar in search of work. They stayed in Delhi and started working. My Judgment 3 of 58 SC No: 440987/16 State Vs. Sonu & Ors brother Bhagwan Das called me and informed me that I, Bhanu Pratap s/o Ballister, Kallu s/o Omkar, Upendra @ Muski are residing in the house of Ayub s/o Nandu resident of H. No. C-35 Shivani Enclave, Part-II, Kakrola in Delhi and works for him for selling fruits. I also came to him about 8 days ago in search of work and started living with him. All of us were working to sell fruit of Ayub and for this reason he gave a room to live in. My brother Upendra @ Muski's contractor Ayub had a transaction of Rs. 2500 but Ayub was refusing to pay him. My younger brother Upendra @ Musky had some attachment with Ayub contractor's daughter Rashida so Ayub was angry with my brother because the news of Rashida and Upendra @ Musky's love was heard by Ayub contractor.
On 12.01.2011 Ayub came to our room at about 3 pm at that time Bhanupratap, Bhagwandas, Kallu s/o Omkar, Upendra @ Muski were present. Ayub contractor told us that "I got a bread factory on contract today I will give you a party" and after a while Ayub brought three kilos of chicken meat and a bottle of liquor with the label of 8 PM. Ayub gave it to his wife Rukhsana to make meat. About 7.30 pm Ayub's wife prepared food. Before eating Ayub contractor made Upendra @ Muski and Kallu to drink a whole bottle of alcohol but Ayub did not drink alcohol. After that we all ate together. Kallu and Upendra @ Muski were quite drunk after drinking alcohol and we laid them on the bed. We started preparing to go to bed then Judgment 4 of 58 SC No: 440987/16 State Vs. Sonu & Ors Ayub said "it is getting cold I will make tea for you". After a while Ayub made tea and brought it. Ayub said that tea is low in sugar and he added some white powdery substance in our tea which looked like powdered sugar, but he did not add it in his tea,. He told us that "I drink less sweet tea" and Ayub told us that you drink tea while I sit and watch T. V. After drinking tea, we all got little drunk and I told Ayub that after watching TV, if you go, wake me up and I will close the door from inside. Before this Ayub never used to come to our room. And we fell asleep.
When I woke up at about 7 am, Bhanupratap told me that "at about 3 am, I woke up to the sound of the door of the room. I saw that the light of our room was on and Ayub was leaving the room. I called Ayub contractor and he ran out of the room. I also ran after him but Ayub leaving his shawl in our room, one shoe outside our room and one near boundary, jumped over the wall and ran away and at this time also he saw that the street light was also on. He told that I knocked on the door of his room on which Ayub's wife told that Ayub was with you since yesterday evening and after that I went to sleep in my room". Then around 7.00 am I woke up my brother and other people living in the room and saw that my brother Upendra Muski's throat was slit and blood was oozing. On checking, my brother Upendra Muski was found dead. On my raising alarm people gathered and someone called police. You came on the spot and recorded my above statement . I Judgment 5 of 58 SC No: 440987/16 State Vs. Sonu & Ors suspect that Ayub contractor s/o Nandu killed my brother having enmity with my brother Upendra @ Muski....
3. On the basis of above statement, FIR under Section 302/328 IPC was registered. Crime Team and Dog Squad was called. During the inspection, eastern, western and northern walls of the incident plot were found to be about 3-6" high and Electric poles were also present near the incident and an electric bulb was also found installed at the gate of Ayub's residential room. Site plan was prepared at the instance of Pintu (PW1).
4. Deceased was sent to DDU Hospital. Bed, clothes, blanket, gunny bag, green white lined pot, a cream colored blood pot was seized. Police seized a shawl from the room where the crime took place, which the witness told to be that of the accused Ayub. A black shoe was seized from outside Judgment 6 of 58 SC No: 440987/16 State Vs. Sonu & Ors the incident room and other shoe from near the western wall of the plot which was told to be of accused Ayub. Police seized white powder found on an earthen floor. An empty 8 PM liquor bottle, an empty mug of green color, two steel glasses in which white colored powder was visible was also seized from the spot.
5. Kallu (PW17) was medically examined. His blood sample was taken. On 14.01.2011 postmortem of deceased Upendra @ Muski was done. After the postmortem Doctor preserved viscera, clothes and blood sample.
6. On 16.01.2011, accused Sonu, Vinod and Sunny were arrested. All three of them confessed to their crime that they along with Ayub murdered Upendra @ Muski. At the instance of accused Vinod mobile phone Tata Indicom belonging to Bhanu Pratap was recovered from the room of Judgment 7 of 58 SC No: 440987/16 State Vs. Sonu & Ors his residential house, which was seized as evidence. At instance of Sunny @ Mahesh @ Dudhiya, a blood stained pant was recovered from his house, which was worn by him at the time of Muski's murder, which was stained with Upendra @ Muski's blood. They refused to join TIP proceedings.
7. On 17.01.2011, accused Ayub was arrested. Knife used in the murder of Upendra @ Muski was recovered at his instance. During the investigation, it was found that Gulab (PW11) brother of Ayub gave initial information regarding incident from his mobile. Call Records of accused persons were collected. Exhibits were sent to FSL. Scaled site plan of the place of occurrence was prepared. Accused persons were charge-sheeted for offence punishable under Section 302/328/411/34/120 B IPC.
Judgment 8 of 58 SC No: 440987/16 State Vs. Sonu & Ors
8. Charge for the offence punishable under section 302/34 IPC, 120-B IPC and 328/34 IPC was framed against all accused persons. Additionally accused Vinod was charged for offence punishable under section 411 IPC. Accused persons pleaded not guilty and claimed trial.
9. Prosecution examined 49 witnesses.
Name Nature Deposition 1 Pintu Complainant Proved his statement Ex. PW1/A,
Supported prosecution case and testified regarding party arranged by of accused Ayub. Deposed PW-13 told him about escaping of accused persons from the place of occurrence. Proved seizure memos of blood stained clothes, men's shawl, shoes, white powder, bottle, mug and glass as Ex. PW1/B-F collected from the crime scene. He also proved case property liquor bottle, steel glasses, a plastic mug from the place of occurrence as Ex. P-1. He also proved brown color shawl as Ex. P-2, a pair of black color canvas shoes as Ex. P-3 and green color check piece of cloth which was thursted in the mouth of deceased as Ex. P-4.
Judgment 9 of 58
SC No: 440987/16 State Vs. Sonu & Ors
2 Vishal Airtel Proved CDR of mobile no. 8527411281
Gaurav issued in name of accused Vinod Kumar
from period 01.11.2010 to 16.01.2011 as Ex. PW2/A & B and certificate U/s 65(B) Indian Evidence Act as Ex.
PW2/C. 3 HC Satwant Police Proved DD No. 8A dated 13.01.2011 in respect of murder as Ex. PW3/A. 4 Anil Kumar Public Deposed that he gave SIM of mobile number 9210337372 to one Gulab.
5 U.N. Gupta BSES Deposed that he submitted a reply Ex. PW5/B as per which no complaint regarding disruptions in street lights or domestic lights were received from the area in question. He further deposed that as per details Ex. PW5/C there was no breakdown of electricity in the area of Shivani Enclave on the night of incident.
6 Surender Idea Cellular Proved CDR of mobile no. 9540678110 Kumar issued in name of accused Vinod Kumar from period 01.01.2011 to 16.01.2011 as Ex. PW6/C and certificate U/s 65(B) Indian Evidence Act as Ex. PW6/D. Customer Application Form as Ex. PW6/A and I-Card of customer as Ex. PW6/B.
7. Ct. Surinder Photographer Photographed Crime Scene as Ex. PW7/A-1 to A-6.
8. HC Shri Police Proved DD No. 77B in respect of Ram departure entry of Ct. Satbir and Narender as Ex. PW8/A. Judgment 10 of 58 SC No: 440987/16 State Vs. Sonu & Ors
9. ASI Renu Duty Officer Recorded FIR Ex. PW9/A and did endorsement on rukka Ex. PW9/B
10. HC Police Recorded PCR call in respect of murder Satvinder as Ex. PW10/A. Kaur
11. Gulab Noor Public Deposed that he received a call on his mobile no. 9210337372 from accused Ayub from his mobile no. 9871561235 about having party in his house with his laborers and a quarrel between them.
12. HC Lalit In-charge PCR Proved original call book record as Mohan Ex. PW12/A
13. Bhanu Public Testified regarding party in the house of Pratap accused Ayub and saw accused persons escaping from the place of occurrence after committing murder of Upender.
Proved seizure of case property fom the place of occurrence as Ex. P-1 to P-4.
He proved seizure of mobile phone from accused Vinod vide memo Ex PW13/A and proved a mobile phone Ex.
P-5 which was recovered from accused Vinod. He identified accused persons escaping from the place of occurrence.
14. Dharminder Brother of Dead body receipt and identification deceased vide memo Ex PW14/A & B.
15. Hetram Cousin of Dead body receipt vide memo deceased Ex PW14/A.
16. Ram Public Dead body receipt and identification Bhagat vide memo Ex PW14/A. Judgment 11 of 58 SC No: 440987/16 State Vs. Sonu & Ors
17. Kallu @ Public Deposed accused Ayub arranged a party kalu for them. Accused offered them liquor and chicken. He deposed that after dinner accused Ayub served them tea which might have mixed with intoxication after which they fell sleep. He deposed that he saw accused along with other three persons leaving room. He also deposed Ayub left his bed-sheet and shoes near their room.
18. Moti Ram Knife Seller Deposed that he sold two knives to accused Ayub for Rs. 30/-. He proved a knife Ex.P1 which he sold to accused Ayub.
19. Om Pal Landlord Deposed that he rented the room in which murder took place to accused Ayub.
20. Krishan Public On date of incident received call from Gahlot accused Ayub that some persons who were taking liquor murdered one of them.
21. Parvesh Public Deposed that he sold mobile connection number 9910195302 to the customer after obtaining his Id proof.
22. Mohd Public Deposed that on 12.01.2011 he sold 3 Mubarak Kg chicken to accused Ayub
23. Furkan Public Deposed accused Ayub was arrested and his personal search was taken by police in his presence vide memo Ex PW23/ A &B
24. Vijay Chemist Sold 10 tablets of Alprex .25 mg to accused Mohd Ayub Judgment 12 of 58 SC No: 440987/16 State Vs. Sonu & Ors 25 Pardeep Photographer Took photographs Ex PW23/A-1 to A-5 Kumar crime scene on date of incident.
26. Dr Archana Doctor Proved MLCs of Sonu and Kalu vide Ex PW26/A & B
27. Sh. Vipin Ld. MM Conducted TIP of accused Sunny, Vinod Kharb & Sonu as Ex PW27/A to C
28. Dr Yogesh Doctor Prepared post-mortem report Tyagi Ex PW28/A, gave subsequent opinion Ex PW28/B in respect of knife(weapon of offence) and green colored cloth piece. Proved sketch of knife as Ex PW28/C.
29. Ct Naveen Police Delivered copy of FIR to Ld MM and Higher Ranked police officials
30. Hardeep Draughtsman Prepared scaled site plan Ex PW30/A of Singh place of occurrence
31. Ct Jagat Police Collected blood sample of Kalu and Singh accused Vinod and handed over to IO who seized it vide memo Ex PW31/A & B. Deposited case property with FSL.
32. Ct Sandeep Dog Handler Deposed that after smelling a shoe and shawl, dog led to the boundary wall of the house of accused Ayub
33. Ct Rajinder Police Collected pullanda from Doctor after post-mortem of deceased
34. Ct Tahir Police Took rukka from the spot from SI Hasan Jagdish to get the FIR registered
35. HC Police Typed FIR on computer Satyanaryan Judgment 13 of 58 SC No: 440987/16 State Vs. Sonu & Ors
36. Ct. Satbir Police Deposed that at 2:00 am at Shivani Enclave he saw accused Ayub, Vinod and Sonu along with one other boy standing in front of house of Ompal. On next day he came to know that a person was killed in the plot of Ompal
37. Ct. Dinesh Police Collected samples of accused Sonu after his medical examination and handed over to IO vide memo Ex. PW31/B
38. Ct. Nand Police Proved duty roster of Ct. Narender vide Kumar Duty Roster Ex. PW38/A
39. SI Kailash Police Proved arrest, personal search and Chand disclosure, pointing out memo of accused Sonu, Vinod and Mahesh @ Sunny as Ex. PW39/A to L. Proved seizure of mobile phone from accused Vinod vide memo Ex. PW13/A. Recovered blood stained pant of accused Mahesh @ Sunny at his instance vide memo Ex. PW39/M. Also proved arrest, and personal search of accused Ayub vide memo Ex. PW23/A & B and also his disclosure statement Ex. PW39/N. Recovered blood stained pant of accused Ayub at his instance vide memo Ex. PW39/O. Pointing out memo of accused Ayub Ex. PW39/B and also recovery of knife vide memo Ex. PW39/Q.
40. Ct. Police Deposited case property with FSL Bhupinder Judgment 14 of 58 SC No: 440987/16 State Vs. Sonu & Ors
41. Ct. Police Deposed that while on patrolling duty, Narender at about 3 am, he saw three persons coming in late hours, one of them told him that he is fruit vendor and is going to Azadpur to fetch fruits. In the morning, he came to know that a person has been murdered in Shivani Enclave. He identified accused Ayub and Vinod as the persons whom he saw while patrolling.
42. SI Jagdish Police Reached the spot on receipt of DD No. Chander 8A along with Ct. Tahir Hasan. He recorded statement of complainant and prepared rukka Ex. PW42/A.
43. SI Virender In-Charge Inspected crime scene and prepared Kumar Crime Team report Ex. PW43/A
44. Inspector Investigating Proved seizure of case property, blood Ghanshyam Officer samples, arrest of accused persons.
Recording of their disclosure
statements, pointing out memo.
45. Ms. Sunita FSL Proved FSL Report in respect of blood
Suman stained cloth piece Ex. PW45/A.
46. Ms. FSL Proved blood sample reports as
Poonam Ex. PW46/A & B
Sharma
47. Amar Pal FSL Proved report Ex. PW47/A in respect of
Singh intoxicating substance in the exhibits.
48. SI Rahul Crime Team Obtained opinion in respect of knife and
bedding from Dr. Yogesh Tyagi.
49. ASI Satbir MHC(M) Deposited case property with Malkhana
vide entries Ex. PW49/A.
Judgment 15 of 58
SC No: 440987/16 State Vs. Sonu & Ors
Statement of Accused Persons Under Section 313 Cr.P.C
10. Entire incriminating evidence was put to accused persons in their statements recorded under Section 313 Cr.P.C. Accused Ayub stated that on the day of incident he was not present at home and was staying near Nizamuddin where he went to take medicine for his mental illness. Accused Suuny, Vinod and Sonu claimed their false implication being known to accused Ayub and resident of same colony.
11. I have heard arguments of Sh. Pramod Kumar Ld. Addl. PP for the State, Sh. VS Chauhan and Sh. Robin Kamra, Ld. Defense Counsels for the accused persons.
Judgment 16 of 58 SC No: 440987/16 State Vs. Sonu & Ors
12. Sh. Pramod Kumar Ld. Addl. PP for the State submitted that the prosecution has proved the circumstantial evidence against the accused beyond reasonable doubt and the circumstances proved by the prosecution points out towards the guilt of the accused. It is submitted that prosecution proved that accused Ayub threw a party for deceased and other persons residing in the room. Ayub ensured that they all are intoxicated and then with help of other three accused persons eliminated deceased Upendra @ Muski. He submitted that the prosecution proved seizure of weapon of offence, recovery of stolen property from the room and examined all relevant witnesses who in unison point out towards guilt of accused persons.
13. Ld. Addl. PP further submitted that the accused persons did not explain any incriminating circumstance. He submitted that the accused persons have taken false plea in Judgment 17 of 58 SC No: 440987/16 State Vs. Sonu & Ors their examination under section 313 of the Cr.P.C and non- explanation of material circumstances and false answers strengthen the case of the prosecution. He submitted that the chain of circumstantial evidence proved by the prosecution is so complete that it leaves no space for any hypothesis consistent with the innocence of the accused persons and prosecution has been able to bring the guilt of the accused.
14. Ld Defense Counsels have submitted that the case of the prosecution was founded on three circumstances namely motive, last seen evidence and recovery of weapon of offence at the instance of the accused Ayub. They submitted that the prosecution has not proved any of the circumstances against the accused. They submitted that the prosecution could not prove the motive of the commission of crime. It is submitted that prosecution failed to prove that deceased was having any relation or inclination towards daughter of Ayub Judgment 18 of 58 SC No: 440987/16 State Vs. Sonu & Ors nor any such evidence has been brought on record. It is submitted that statements of prosecution witnesses PW1 Pintu, PW13 Bhanu Pratap and PW17 Kallu @ Kalu who as per prosecution story were present in the place of occurrence are not reliable nor evidence led by prosecution in respect of recovery of weapon of offence is trustworthy. He submitted that IO did not join any public witness to search and seizure proceedings.
Evidence and Analysis
15. Nature of death of Upendra @ Muski: Defence has not disputed that the death of Upendra @ Muski was a homicide. Postmortem report Ex.PW28/A proves this fact. According to autopsy report cause of death was shock due to cut throat injury produced by sharp edged weapon which was sufficient to cause death in ordinary course of nature. Injury Judgment 19 of 58 SC No: 440987/16 State Vs. Sonu & Ors caused with a sharp edged object with the intention to ensure that the deceased must not remain alive. It is therefore, established that death of deceased Upendra @ Muski was a murder.
Circumstantial Evidence
16. There is no direct evidence to the crime. Case of the prosecution is based on circumstantial evidence. It is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:
1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and Judgment 20 of 58 SC No: 440987/16 State Vs. Sonu & Ors
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
17. Prosecution relies upon following circumstances to prove guilt of accused persons:
A) Motive to kill B) Testimony of witnesses that they saw accused Ayub leaving place of Occurrence C) Arranging Party by accused Ayub for his workers D) Recovery of shoes and shawl of accused Ayub from place of occurrence.
E) Purchase of drug Alprex 0.25 mg by accused Ayub.
F) Recovery of weapon of offence and blood stained pant of Ayub which he was wearing at time of incident.
G) Recovery of blood stained pant of accused Sunny @ Mahesh which he was wearing at time of incident.
H) Recovery of stolen mobile phone of PW13 from the place of occurrence from possession of accused Vinod.
Judgment 21 of 58
SC No: 440987/16 State Vs. Sonu & Ors
A. Motive:
18. Case of prosecution is that deceased Upendra @ Muski was having some attachment with daughter of accused Ayub due to which Ayub was angry with him. It is also appearing in the initial complaint Ex PW1/A that Ayub was not paying Rs 2500/- due to Upendra @ Muski and for both these reasons he with other accused persons murdered Upendra @ Muski.
19. Prosecution examined PW1 Pintu & PW13 Bhanu Pratap to prove the motive. During his cross-examination PW1 Pintu in this regard deposed as under:
Accused Ayub owed a sum of Rs. 2000/- to deceased Upender. My brother Upender had told me about this about six days before the incidence. Upender had been entrusting his earnings to accused Ayub. Upender did not show me any receipt in this regard. Accused Ayub also had told me that he owes some money to Upender. Ayub also suspected that deceased Upender has intimate relations with his daughter. I had not Judgment 22 of 58 SC No: 440987/16 State Vs. Sonu & Ors seen my brother Upender talking to the daughter of Ayub. Upender also did not tell me anything about his intimacy with Ayub's daughter.
20. PW13 Bhanu Pratap testified as under:
Some quarrel was going on between accused Ayub and deceased Upender regarding money. Ayub had also told me to send Upender back to his village and I had assured him that it would be done after Upender sells all his fruits. Ayub also told me that some affair is going on between his daughter and Upender which is not to his liking. I told Ayub to settle the account of Upender and I will send him back to the village.
21. PW-44 Inspector Ghanshyam Investigating Officer in respect of motive of murder deposed in his cross-
examination as under:
Motive of accused Ayub to commit murder of Upender @ Muski, as unearthed in investigation, was the affair of Rashida, daughter of accused Ayub with deceased Upender @ Muski and Rashida and Upender @ Muski were planning to abscond. Accused Ayub had also to give Rs.2500/- to Upender @ Muski as his wages for selling fruits of accused Ayub which he used to demand.
Judgment 23 of 58 SC No: 440987/16 State Vs. Sonu & Ors
Neighbors of accused Ayub had no knowledge of the affair of his daughter with deceased. I had not recorded statement of Rashida. Rashida was of age 13-14 years at that time. I did not examine Rashida recorded u/s 164 Cr.P.C. in Magisterial Court. I did not examine Rashida in investigation. I did not take any steps for getting statement of Rashida recorded under Section 164 Cr.P.C in Magisterial Court.
22. It is evident from the statement of Investigating officer that except from the statements of PW1 & PW13, he did not collect any other evidence to substantiate allegations in respect of affair between deceased and daughter of accused Ayub.
23. Deceased was hardly 15 years old and as per Investigating Officer daughter of accused Ayub was 13-14 years old. It is matter of record that Investigating Officer did not make any effort to collect any evidence even in respect of age of both deceased and daughter of accused Ayub.
Judgment 24 of 58 SC No: 440987/16 State Vs. Sonu & Ors
24. PW1 categorically stated that he never saw deceased and daughter of accused Ayub talking to each other.
Thus, except for the bald statements, hardly there is any evidence that deceased Upender and daughter of accused were having any affair or they were in any kind of relationship.
25. Another motive attributed for murder is that Upender used to demand Rs 2500/- from accused Ayub as his wages for selling his fruits Ayub.
26. To prove this motive, prosecution has relied upon testimony of PW1 & PW13. PW1 Pintu deposed that accused Upender was avoiding to pay Rs2500/- to the deceased. PW13 Bhanu Pratap also deposed on similar lines and in his cross-examination, Bhanu Pratap deposed as under:
Judgment 25 of 58 SC No: 440987/16 State Vs. Sonu & Ors
....... We used to deposit our savings with the accused Ayub everyday and accused Ayub used to maintain record of our savings separately. I have taken my savings amount of Rs. 1600/- from accused Ayub on 08.01.2011 and I came to know that he had handed the savings of other persons also except that of deceased. I had seen the record of accused Ayub showing an outstanding of Rs. 2500/- towards deceased. I had told to the IO about this fact. I do not know whether IO had seized the record of our savings.
We used to store our fruits in our room. The reason for organizing party by accused Ayub was that he had got contract in some bread factory. Accused Ayub has intimated us about the party at 10:00 am on 11.01.2011. Deceased had altercation with the accused Ayub about three days prior to incident on the issue of Rs. 2500/- which was told to me by Kallu. We used to sell fruits of accused Ayub worth Rs.700/- Rs. 1500/-.
27. PW13 Bhanu Pratap deposed that Ayub and deceased had an altercation about three days prior to incident that this fact was told to him by Kallu (PW17) but there is not a whisper to this effect in the testimony of PW17. Deposition of PW13 in this regard is merely an hearsay and thus, cannot be relied upon.
Judgment 26 of 58 SC No: 440987/16 State Vs. Sonu & Ors
28. PW13 further deposed that he had seen the record of accused Ayub showing an outstanding of Rs. 2500/- towards deceased and he told IO about this fact but Investigating Officer did not seize any such document to show liability of Ayub to pay Rs.2500/- to deceased. If at all, Bhanu Pratap disclosed in respect of document to the IO then there was no reason for the Investigating officer not to seize it. Non seizure of any such account creates a doubt over prosecution story in respect of motive for causing death.
29. It is argued by defense that in a case based on circumstantial evidence, motive is an important incriminating circumstance and failure to prove it is fatal to the case of the prosecution. Prosecution has refuted his argument.
Judgment 27 of 58 SC No: 440987/16 State Vs. Sonu & Ors
30. Motive is a mental state, which is always locked in the inner compartment of the brain of the accused and inability of the prosecution to establish the motive need not necessarily cause entire failure of prosecution.
31. In 'State of Himachal Pradesh vs. Jeet Singh' {1999 (4) SCC 370}: it was held that:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it....."
32. In 'Paramjeet Singh vs. State of Uttrakhand', 2010 (10) SCC 439, Hon'ble Supreme Court held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. Following was stated in a paragraph 54:
Judgment 28 of 58 SC No: 440987/16 State Vs. Sonu & Ors
"So far as the issue of motive is concerned, the case is squarely covered by the judgement of this Court in Suresh Chandra Bahri (supra). Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide: State of Gujarat vs. Anirudhsing [supra])"
33. Prosecution not been able to establish motive but as stated in above authoritative judgment it cannot be a ground to reject the prosecution case. So, Let us examine other circumstances appearing against accused persons. B. Witnesses saw accused Ayub leaving place of Occurrence
34. Prosecution case is that in the evening of 12.01.2011, accused Ayub arranged a party for his workers Bhanu Pratap (PW13), Kallu(PW17), Pintu (PW1), Bhagwan Dass (not examined) and Upender (deceased). Accused Ayub Judgment 29 of 58 SC No: 440987/16 State Vs. Sonu & Ors got dinner prepared for them and also made them drink liquor. Thereafter, accused Ayub prepared tea and on pretext of adding sugar mixed Alprex .25 mg (intoxicating drug) in the tea and served that tea to them. Thereafter, when all of them slept, in the middle of the night accused Ayub along with his associates accused Sonu, Vinod and Sunny murdered Upender by slitting his throat.
35. Case of the prosecution is based on testimony of PW1 Pintu, PW13 Bhanu Pratap & PW17 Kallu that accused Ayub was seen leaving the room in the night where deceased Upender was murdered. Initial statement Ex PW1/A of Pintu (PW1) in this regard reads as under:
...Bhanupratap told me that at about 3 am, I woke up to the sound of the door of the room. I saw that the light of our room was on and Ayub was leaving the room. I called Ayub contractor and he ran out of the room. I also ran after him but Ayub leaving his shawl in our room, one shoe outside our room and one near boundary, jumped over Judgment 30 of 58 SC No: 440987/16 State Vs. Sonu & Ors the wall and ran away and at this time also he saw that the street light was also on. He told that I knocked on the door of his room on which Ayub's wife told that Ayub was with you since yesterday evening and after that I went to sleep in my room. Then around 7.00 am I woke up my brother and other people living in the room and saw that my brother Upendra Muski's throat was slit and blood was oozing. On checking, my brother Upendra Muski was found dead.
36. Now, let us examine what PW1 Pintu deposed in his examination-in-chief:
Bhanu Pratap told me that accused Ayub had come to our room with a knife in his hand, in the night for watching TV and two persons were standing outside the door of our room. He further told me that after some time accused Ayub ran away from the room. He followed him but could not catch hold of him.
37. Above statement of PW1 Pintu makes it clear that he didn't see Ayub leaving the room rather PW13 Bhanu Pratap told him that accused Ayub came inside the room with knife in his hand and two persons were standing outside.
Judgment 31 of 58 SC No: 440987/16 State Vs. Sonu & Ors
38. PW1 has relied upon what PW13 told him. Now, let us examine what Bhanu Pratap saw in the night:
I woke up at about 2.45 am or 3 am in the night. The light of the room was switched on. At that time I saw accused Ayub leaving the room along with three other persons, whom I did not know. I also saw a knife in the hands of accused Ayub. I asked them why they are leaving the room like this but they did not answer and ran away. 1 went to the room of accused Ayub and woke up his wife. I asked her where Ayub was and she replied that he was with us in our room since the evening and did not return to his room. I narrated to her what I had seen. She advised me to sleep and told me that the matter would be looked into in the morning. Since I was feeling sleepy, I slept.
39. In his cross-examination witness deposed as under:
I noticed that the three persons accompanying accused Ayub were wearing pants and shirts but I cannot tell the colour. Accused Ayub was having a shawl over him which fell down inside the room. The distance between our room and Ayub's room is about fifty ft. There is vacant land between the two rooms. No repair or construction work was going on. After coming back from Ayub's room, I woke up Pintu and told him what I had seen. He also advised me to sleep.
Judgment 32 of 58 SC No: 440987/16 State Vs. Sonu & Ors
40. PW17 Kallu had also seen accused Ayub leaving the room. Let's examine what he deposed:
I had seen Ayub leaving our room alongwith three other persons in the night but I did not know at that point of time that Muski had been murdered. Ayub had left his bed sheet (Chhadar which was use to cover the body) and shoes near our room. One shoe was lying towards our room and another shoe was also lying outside the boundary. I did not observe the colour of the shoe. I also did not observe whether the shoe belonged to right foot or the left foot or either left or right foot. I do not know the colour of the chhadar...
I do not know Sunny. In the night Ayub had run away alongwith three other persons but I do not know whether accused Sunny was also with Ayub or not.
41. PW 1 Pintu in Ex PW1/A doesn't say that Bhanu Pratap informed that he saw Ayub having a knife in his hands and he was leaving the room along with three other persons, PW1 in his deposition improved his version by deposing that Bhanu Pratap saw accused Ayub with a knife and he also saw other accused persons too.
Judgment 33 of 58 SC No: 440987/16 State Vs. Sonu & Ors
42. From deposition of PW13 Bhanu Pratap following facts emerge:
i) PW13 saw accused Ayub with a knife leaving the room with three other persons.
ii) PW13 saw accused Sunny @ Dudhiya, Vinod and Sonu standing outside the room with accused Ayub.
iii) He spoke to Ayub and asked Ayub why they were leaving the room like this.
iv) He also noticed that while leaving, shawl of Ayub fell in the room.
v) PW13 then went outside and followed accused persons for 20 meters.
vi) He went to room of Ayub and met Ayub's wife and narrated to her what he saw.
vii) After coming back he woke up Pintu and told him what he saw.
43. Above noted facts leads to a conclusion that PW13 was not only fully conscious but he was also conscious of the fact that Ayub was upto some mischief as he saw a knife in Judgment 34 of 58 SC No: 440987/16 State Vs. Sonu & Ors his hand. PW13 also saw accused Sunny @ Dudhiya, Vinod & Sonu standing outside the room with accused Ayub.
44. After noticing Ayub having a knife and escaping from there, PW13 informed wife of Ayub as well as Pintu. In such a scenario, reasonability demands that PW13 might have checked about safety and security of all especially when he saw accused Ayub with knife with three other persons. It is beyond imagination that is surrounding circumstances neither PW13 or PW1 or PW17 did not see Upender lying in the room with throat slit and blood oozing out specially when it is in his deposition that the light of the room was on.
45. Nonetheless, version of PW13 Bhanu Pratap is further dented as he deposed in his cross-examination that except for accused Ayub, other accused persons were not known to him, however, in his statement recorded on Judgment 35 of 58 SC No: 440987/16 State Vs. Sonu & Ors 13.01.2011 under Section 161 Cr.P.C (Ex PW13/DA) names of all accused persons with their father's name are appearing. It is beyond means of any probability that Bhanu Pratap who does not know accused Sunny, Sonu and Vinod would disclose their names to police along with their father's name.
46. Prosecution case is that first Ayub made his workers drunk and then administered intoxicating drug to them so that in unconscious state of all persons he may murder Upender.
47. So, let us examine as to whether deceased and other persons present in the room were intoxicated or were in unconscious or semiconscious state.
48. PW1 Pintu deposed that accused Ayub took out a "puria" and poured it in the tea cups on pretext of adding Judgment 36 of 58 SC No: 440987/16 State Vs. Sonu & Ors sugar and all of them including deceased Upender took the tea after which they felt intoxicated and became unconscious.
49. PW13 Bhanu Pratap in this regard deposed that he, Pintu, Kallu and Bhagwan Dass took tea in which accused Ayub added powder and after drinking it they felt sleepy and slept.
50. PW17 Kallu deposed that he didn't see anything being administered in the tea which was prepared by Ayub. Different versions in respect of administering intoxicating tea is coming all these three witnesses. Nonetheless, PW44 Inspector Ghanshyam, Investigating officer deposed that he only got Kallu (PW17) medically examined and not the other three persons because they were not under any kind of intoxication.
Judgment 37 of 58 SC No: 440987/16 State Vs. Sonu & Ors
51. Ex PW47/A is the FSL result in respect of blood report of Kallu as per which Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids barbiturates, tranquilizers and pesticides could not be detected in his blood. Thus, as per investigations, none of PW1, 13 & 17 who were present in the room of place of occurrence were not found intoxicated.
52. Let us now examine sleeping position of Upender, Pintu, Bhanu Pratap, Kallu and Bhagwan Dass in the room. PW13 Bhanu Pratap in his cross-examination deposed that on the day of incident they were all sleeping towards right side at about 3 feet from gate in one line and size of the room was about 8×8 feet. PW44 Inspector Ghanshyam, Investigating Officer deposed as under:
"I had inquired from the complainant and other witnesses about their sleeping in the night on the day of incident. They told that they were in the Judgment 38 of 58 SC No: 440987/16 State Vs. Sonu & Ors room in line on the day of incident. It is correct that I have not shown their position in my site plan".
53. IO did not find any charpai / cot in the room. He did not disclose how may mattresses were lying in the room. Narration of prosecution witnesses indicates that all the occupants of the room were sleeping on the floor in one row side by side. Testimony of witnesses as well as scaled site plan Ex PW30/A shows that size of the room was not more than 8x10 feet.
54. Investigation of the case does not make it clear that where deceased Upender was sleeping whether in corner or whether in between his room-mates.
55. It is in evidence that PW1 was woken in the night and informed by PW13 that he saw Ayub, PW13 & PW17 Judgment 39 of 58 SC No: 440987/16 State Vs. Sonu & Ors both of them saw accused Ayub and his three associates leaving the room.
56. PW1, 13 & 17 woke up at night just after the incident. It is hardly believable that five persons who were sleeping in the floor next to each other in a row in room measuring 8 x 10 feet, one of them was murdered and none of others persons sleeping in the room noticed that their companion had a slit throat with the blood oozing. Without noticing this they slept again. They woke up in the morning and then realized Upender sleeping near them had been killed by Ayub and his associates in the night.
57. It is not the case here that Upender was poisoned or met the death in his sleep. Upender has been murdered by slitting his throat. Photographs Ex PW7/A-1 & A-6 shows that deceased bled profusely and blood oozing out from his neck.
Judgment 40 of 58 SC No: 440987/16 State Vs. Sonu & Ors
58. As per case of prosecution, accused Ayub slit his throat while other accused persons held him. In a room of 8x10 feet five persons were sleeping. Deceased Upender was one of them. It is beyond comprehension that four persons entered in such a small room, they killed Upender by knife and persons sleeping close-by did not hear or notice noise or disturbance till they saw Ayub leaving the spot. Even after noticing accused Ayub leaving the place, they did not notice this gruesome act. Conduct of prosecution witnesses as narrated above is not natural under circumstances and renders their testimony not trustworthy in respect to events that took place in the night of incident.
C. Arrangement of party by accused Ayub:
59. As per prosecution, accused Ayub threw a party for his workers and he purchased 3 kg chicken from the shop of Mohd Mubarak (PW22).
Judgment 41 of 58 SC No: 440987/16 State Vs. Sonu & Ors
60. However, PW22 Mod Mubarak in his cross- examination deposed as under:
I do not know when accused Ayub came to my shop first time. After that he came to my shop twice. After three days the police officials took me to police station. They made me to stay in police station for three hours. It is wrong to suggest that I know Ayub. The police officials forced me to give statement that Ayub had purchased meat from my shop twice and he asked me that if chicken and goat can be cut by the knife then why not the human body. The statement made by me is not voluntarily.
61. Above deposition of PW22 makes it evident that he was made to sit in the police station for three hours and police officials forced him to give a statement that Ayub purchased meat from his shop twice and also that Ayub asked him that if chicken and goat can be cut by the knife then why not the human body. PW22 deposed that he gave this statement involuntarily. Thus, testimony of PW22 does not help the cause of prosecution that accused Ayub bought meat.
Judgment 42 of 58 SC No: 440987/16 State Vs. Sonu & Ors
62. Even for the sake of arguments it is presumed that a party was arranged even then it doesn't provide any conclusive link to chain of circumstances. D. Recovery of shoes and shawl of accused Ayub from place of occurrence
63. Prosecution witnesses deposed that shoes of accused Ayub were found outside the room and his shawl inside the room. This recovery is hardly material as Ayub's room was situated in the same compound merely at a distance of 50 feet from room of occurrence.
64. Moreover, it is case of prosecution that Ayub was present in the room with deceased, PW1, 13 & 17 till late evening. Thus, it's not a circumstance which can be read against accused Ayub. Nonetheless there is no conclusive Judgment 43 of 58 SC No: 440987/16 State Vs. Sonu & Ors proof that shoes which were found were of Ayub or the shawl belonged to him. Thus, recovery of shoes and shawl of accused Ayub from place of occurrence does not help the case of prosecution.
E. Purchase of Alprex (intoxicating drug) by accused Ayub
65. PW24 Vijay is chemist who as per his deposition sold Alpex 0.25 mg to accused Ayub. He did not produce any receipt of sale of that drug. PW24 deposed that around 100- 200 customers visit his shop everyday and he recognizes his regular customers. He admits that accused Ayub was not his regular customer then how PW24 was able to identify him is not coming forth in his testimony. Nonetheless no receipt or any other prove is brought on record to prove that Ayub infact purchased drug from PW24.
Judgment 44 of 58 SC No: 440987/16 State Vs. Sonu & Ors
66. As per Investigating Officer none of the PW1, 13 or 17 were found drugged. Blood of PW17 Kallu did not find trace of any such chemical. Thus, this circumstance relied upon by the prosecution also does not help it's cause to prove guilt of accused Ayub to administer intoxicating substance to his workers.
F. Recovery of weapon of offence and blood stained pant from accused Ayub
67. Ex P-1 is the knife which is produced on record as weapon of offence. Prosecution case is that PW18 Moti Ram sold this knife to accused Ayub and accused Sunny @ Mahesh. However, in his deposition PW18 failed to identify accused Sunny @ Mahesh.
68. PW39 SI Kailash Chand and PW44 Ghanshyam, IO are examined as recovery witness of weapon of offence.
Judgment 45 of 58 SC No: 440987/16 State Vs. Sonu & Ors
Both of them deposed that accused Ayub led the police to his house and he recovered a knife from the roof of the said house stating that the same knife was used in committing the murder of Upender. PW44 admitted that he did not join any independent witness to the recovery of weapon of offence.
69. As per prosecution case, knife Ex P-1 was recovered from terrace of house of accused Ayub at his instance which was hardly at a distance of 50 feet from place of occurrence.
70. As per prosecution witnesses, Ayub was seen escaping from the place of occurrence by jumping wall. PW13 even followed him for about 20 meters but he escaped. Facts of the case shows that Ayub was arrested four days after the incident from Nizamuddin Dargarh that is a place which is quite a distance of place of occurrence and his house.
Judgment 46 of 58 SC No: 440987/16 State Vs. Sonu & Ors
71. It is in evidence that IO and other police staff was continuously visiting crime scene which was hardly 50 feet from the room of accused. No witness has been examined that accused Ayub was scene near his house or in locality since the day of incident till his arrest. Then, how the weapon of offence reached at the terrace of house of Ayub is not explained in the investigation.
72. It's highly improbable that a person who ran from the spot after committing murder would come again to hide the weapon of offence near the crime scene. Even otherwise also, recovery is from open terrace, from the house of accused Ayub just near to the place of incident. Recovery is made from the place which is accessible to one and all and as such, no reliance could be placed on such recovery specially when FSL result Ex PW46/B does not find blood of deceased on the knife.
Judgment 47 of 58 SC No: 440987/16 State Vs. Sonu & Ors
73. According to prosecution, accused Ayub was wearing blood stained pant Ex P-8 at the time of apprehension which was seized from him vide memo Ex. PW39/O. Incident in question took place on 12.01.2011. Accused Ayub was apprehended on 17.01.2011 from Nizamuddin Dargarh. It is highly improbable that Ayub would be wearing blood stained clothes even four days after the incident. This coupled with the fact that the F.S.L. report Ex PW46/B is inconclusive as to blood found on the pant was of deceased, creates a great shadow of doubt on the genuineness of the said recovery as such this circumstance cannot be used against the accused.
74. In Mahesh Chand vs. State, Crl. Appeal No. 160/2001 decided on 18.08.2009, Hon'ble Delhi High Court observed as under:
Judgment 48 of 58 SC No: 440987/16 State Vs. Sonu & Ors
"16. As held in the decision reported as JT 2008 (1) SC 191 Mani vs State of Tamil Nadu (para 21) discovery of common objects is a weak kind of evidence and conviction in a serious matter like murder cannot be based solely upon the discovery of common objects. The common objects referred to by the Supreme Court were blood-stained clothes and blood-stained weapon of offence i.e. a koduval recovered at the instance of the accused.
17. In the decision reported as Narisnbhai Haribhai Prajapati v Chhatrasinh & Ors AIR 1977 SC 1753 the Supreme Court had held that in the absence of any other evidence the circumstances of seizure of blood stained shirt and dhoti from the person of an accused and dharias from the houses of the accused are wholly insufficient to sustain the charge of murder against the accused.
18. In the decision reported as Surjit Singh v State of Punjab AIR 1994 SC 110 a watch belonging to the deceased and one dagger which was found to be stained with human blood were recovered at the instance of the accused. It was held by the Supreme Court that said recovery by itself, does not connect the accused person with the murder of the deceased. It was further held that said circumstance may create some suspicion but the same cannot take the place of proof.
19. In the decision reported as Deva Singh v State of Rajasthan 1999 CriLJ 265 Supreme Court had Judgment 49 of 58 SC No: 440987/16 State Vs. Sonu & Ors held that merely because a knife is alleged to have been recovered at the instance of the accused would not lead to a conclusion that the accused was the perpetrator of the crime of the murder.
G. Recovery of blood stained pant from accused Sunny @ Mahesh
75. As per prosecution following his arrest accused Sunny @ Mahesh led police team to his house and recovered his blood stained pant Ex P-7 vide seizure memo Ex PW39/M. PW39 deposed that recovery was affected from a open veranda of his house which didn't have a gate even. None of his family members or independent witnesses were made to join investigation. Even otherwise also, recovery is from open verandah. Recovery is made from the place, which is accessible to one and all and as such, no reliance could be placed on such recovery specially when FSL result Judgment 50 of 58 SC No: 440987/16 State Vs. Sonu & Ors Ex. PW46/B does not find blood of deceased on the his jeans. Mode and manner described by investigating agency, creates a great shadow of doubt on the genuineness of the said recovery as such this circumstance cannot be used against the accused.
H. Recovery of mobile phone of PW13 Bhanu Pratap at instance of accused Vinod
76. In his examination-in-chief PW13 Bhanu Pratap deposed that he found that his mobile phone Ex P-5, a sum of Rs.13000/- and his Election-I Card were missing from the room and later on police told him that his mobile phone was recovered by accused Vinod from his house vide seizure memo Ex PW13/A. Judgment 51 of 58 SC No: 440987/16 State Vs. Sonu & Ors
77. During his cross-examination by Ld Additional PP for State PW13 deposed as under:
It is correct that I was associated in the investigation of this case on 16.1.2011 and I accompanied the police on that day to the house of accused Vinod. Accused Vinod was also with us. I remained in the police vehicle outside the house and did not go inside the house. It is incorrect to suggest that accused Vinod got recovered the mobile phone in my presence from an alimarh lying in his house.
78. PW44 Inspector Ghanshyam, IO during his examination-in-chief in respect of recovery of mobile phone has deposed as under:
Accused Vinod had disclosed that he can get recovered one mobile phone of Bhanu Pratap from his house. Thereafter accused Vinod had led the police party to his house and got recovered one mobile phone Tata Indicom Huawei, which was take n into possession vide seizure memo Ex. PW 39/A. Bhanu Pratap also accompanied us to the house of accused Vinod and before seizing the mobile phone it was identified by Bhanu Pratap.
Judgment 52 of 58
SC No: 440987/16 State Vs. Sonu & Ors
79. PW44 Inspector Ghanshyam, in his cross-
examination deposed as under:
I had followed the way from Bharat Vihar near station to the house of accused through near the Kakrola Village and it took around 5-7 minutes to reach to their house. No photograph was done of the phone kept in the house of Vinod and the recovery at the instance of accused. At that time, there was only one room. I can not tell the measurement of the plot. I can not say about the description of gate but there was a gate. I can not tell as to how many members of accused Vinod who were residing at house on that day. There is a main gate in the house and room was inside towards left of the main gate. I do not remember the size of that room. I remained in the house of accused Vinod but I do not remember the time or remaining there.
80. Prosecution case is that the mobile phone Ex P-5 of PW13 Bhanu Pratap which was stolen from the place of occurrence was recovered at the instance of accused Vinod in presence of PW13 Bhanu Pratap.
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81. Prosecution has not produced any proof that Ex P-5 was owned by PW13 Bhanu Pratap or he was using the same.
None the less, PW13 did not support the prosecution case and denied that he was present at the time of recovery of mobile phone. PW13 denied that mobile phone was recovered from an alimarh from the house of accused Vinod.
82. PW44 IO also doesn't describe the exact place of recovery of mobile phone. He failed to give description of house of accused Vinod and deposed that he can not give description of gate. IO failed to answer as to how many members of accused Vinod were found residing at house on that day.
83. More so, independent witness PW13 has resiled from his statement qua the recovery of phone in his presence. There is no site plan of the place of recovery of phone. There Judgment 54 of 58 SC No: 440987/16 State Vs. Sonu & Ors is no statement of any person regarding visit of police team for effecting recovery from house of Vinod. Mode and manner in which recovery was effected is highly doubtful and hence, does not form a circumstance to be read against accused Vinod.
84. Prosecution though relied upon testimony of PW36 Ct Satbir and PW41 Ct Narinder who as per their deposition saw accused persons in the night of incident. Their testimony would only show presence of accused persons near place of occurrence in the middle of night and nothing beyond it. Both these witnesses found nothing incriminating from the accused persons nor affected any recovery from them. Some Additional Observations:
85. FIR was registered on complaint of PW1 Pintu wherein he stated that deceased Upender was his brother but investigations revealed that Upender was not brother of Pintu.
Judgment 55 of 58 SC No: 440987/16 State Vs. Sonu & Ors
86. FIR was registered on the statement of Pintu who admittedly did not see accused Ayub leaving the room and he is merely an hearsay evidence. As per prosecution case, PW13 Bhanu Pratap saw accused Ayub and other accused persons leaving place of occurrence but FIR is not registered on the statement of Bhanu Pratap.
87. PW12 HC Lalit Mohan in respect of availability of PW13 Bhanu Pratap at the spot has deposed as under:
On 12.01.2011, I was posted as In-charge PCR Van Zebra 27. My duty hours were from 8 pm to 8 am and my location was in Dwarka North. At about 7.23 am, I received a call from PCR that a murder has taken place in C-35, Shivani Enclave, Near Govt. School. I immediately reached the spot and found that a crowd had gathered at the spot. I found Bhanu Pratap, Pintu, Karu @ Kalu and Bhagwan Dass present in the room and they pointed towards a person who was wrapped in a quilt saying that he has been killed.
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88. PW12 says that he found Bhanu Pratap, Pintu, Kalu and Bhagwan Dass at the spot. PW44 Investigating Officer specifically deposed that Pintu and his four companions remained their for 2-3 days after the incident. It is evident that PW13 Bhanu Pratap who actually saw accused Ayub along with his other three associates leaving the place of occurrence was available, then by all means FIR ought to have been registered on his statement who saw accused persons.
Conclusion
89. In the light of above discussions, it is concluded that circumstantial evidence brought in the present case does not pass the test of reason-ability and has traces to form an explanation of other hypothesis than that of guilt of the accused persons. Evidence produced is inconsistent to reach at conclusion that accused persons are guilty of committing murder of deceased Upender @ Muski.
Judgment 57 of 58 SC No: 440987/16 State Vs. Sonu & Ors
90. Accordingly, accused Sonu, Vinod, Sunny @ Mahesh @ Dudhiya and Ayub are acquitted. Their personal bond is canceled and sureties are discharged. Documents, if any, be returned to the surety. In terms of Section 437(A) Cr.P.C. Accused persons are directed to furnish personal & surety bond in the sum of Rs. 10,000/- for period of six months.
File be consigned to record room.
Announced in the open court on 16th day of December, 2022. Digitally signed
GAUTAM by GAUTAM MANAN MANAN Date: 2022.12.16 15:35:36 +0530 Gautam Manan Addl. Sessions Judge-02 South-West, Dwarka Courts, Delhi Judgment 58 of 58