Delhi District Court
Vs. State Air 1973 Sc 2622, Birdhi Chand ... vs . State Of on 23 February, 2015
IN THE COURT OF SH. PARVEEN SINGH,
ADDITIONAL SESSIONS JUDGE03(NE), ROOM NO.53,
KARKARDOOMA COURTS, DELHI.
SC No. 10/12
Unique case ID no. 02402R0156462012.
FIR No. 64/12
PS Nand Nagri.
U/s 302/392/201/411 IPC
State
Versus
1. Badlu Paswan,
S/o Lt. Ram Swaroop,
R/o Village Budhvan, PS Khagariay,
Distt. Khagariya, Bihar.
2. Rinku Sharma,
S/o Sh. Phool Chand,
R/o VillageBhatoli, PS Data Ganj,
Distt. Badayu, UP. ....Accused.
Date of Committal : 03.07.2012.
Date of arguments : 18.02.2015.
FIR No. 64/12
PS Nand Nagri 1 of 52
Date of pronouncement : 23.02.2015.
JUDGMENT
The case of the prosecution is that, in the intervening night of 14/15.02.2012, on the basis of information provided by a watchman, PW11 SI Mahesh Chand recorded DD No. 9A Ex.PW3/A. On receipt of DD Ex.PW3/A, PW3 SI Ratanu Oraon alongwith Ct. Charan Pal went at spot i.e. District Park, A Block, Nand Nagri and found a dead body lying in the park. Blood was oozing out from the nose of the dead body. PW3 found one slip (Ex.PW3/J) of Ramala Sehkari Chini Mill, Bhagpat. This slip was in the name of Matlub s/o Zabarddin Village 50 Khera Khurtan. He also found one match box and one blood stained lungi having blue, orange and white stripes near the dead body. PW3 seized the slip Ex.PW3/J vide seizure memo Ex.PW3/H and also seized lungi vide seizure memo Ex.PW3/K. PW3 lifted blood samples and earth control samples from the spot and seized them vide memo Ex.PW3/L. PW3 summoned the crime team and PW13 SI U Balashankaran, incharge Mobile Crime Team alongwith photographer Ct. Shyam Lal reached the spot. Ct. Shyam Lal had taken photographs of the scene of crime and PW13 prepared detailed scene of FIR No. 64/12 PS Nand Nagri 2 of 52 crime report Ex.PW13/A. PW3 then sent the dead body to mortuary of GTB Hospital. PW3 got published a hue and cry notice Ex.PW3/B and deputed Ct. Sachin to display hue and cry notice and flashed wireless message for identification of the dead body. On 18.02.2012, police had shown photograph of deceased to PW8 Ishwar Singh who identified the photograph to be of his brother. One policeman from Delhi also went to the house of PW7 Ms. Pooja and showed the photograph of the deceased to her and she identified the man in that photograph to be her father namely Ashok. On 19.02.2012, on the request of PW3 SI Ratanu Oran, PW21 Dr. Neha Gupta had conducted post mortem on the dead body and filed post mortem report Ex.PW21/1. On 24.02.2012, PW9 HC Jagdev singh registered FIR Ex.PW9/B and made his endorsement Ex.PW9/A. On the directions of PW9, PW 16 Ct. Ashok Kumar delivered the copies of FIR to the area Magistrate, Joint CP, DCP North East and ACP Seemapuri. PW17 Ct. Muneem Khan, on the directions of the duty officer, handed over the copy of FIR and original rukka to PW23 Insp. Harish Chander. PW23 Insp. Harish Chander at the instance of PW3 prepared site plan Ex.PW23/1. During the investigation, the mobile phone handset, belonging to the deceased, was put on surveillance and it was found that the handset was used in FIR No. 64/12 PS Nand Nagri 3 of 52 mobile no. 9540668276 which was in the name of one Bunty. On 03.03.2012, PW5 Mohan Lal and PW6 Bunty came to the police station and informed PW23 that the mobile instrument belonging to the deceased was offered for sale to PW5 by Badlu Paswan but as the deal could not materialize, PW5 returned the mobile phone set to Badlu Paswan. On 03.03.2012, on the information of a secret informer, accused Badlu Paswan and Rinku Sharma were apprehended under Mandoli Flyover. Accused Badlu Paswan was arrested vide memo Ex.PW19/1 and his personal search was conducted vide memo Ex.PW19/2. Accused Rinku Sharma was arrested vide memo Ex.PW19/4 and his personal search was conducted vide memo Ex.PW19/5. Accused Badlu Paswan made disclosure Ex.PW19/3 and Rinku made disclosure Ex.PW19/6. At the instance of accused Badlu Paswan, one blood stained lungi was recovered from the bushes of Tikona Park, A Block, Nand Nagri. PW23 seized that lungi vide memo Ex.PW19/7 and prepared site plan of place of recovery vide Ex.PW19/8. At the instance of accused Rinku Sharma, one mobile phone of make Nokia bearing IMEI No. 351545/04/362914/5 was recovered which was seized vide memo Ex.PW19/9. After completion of investigation, chargesheet u/s 302/397/201/411 IPC was filed against FIR No. 64/12 PS Nand Nagri 4 of 52 both the accused.
2. On 28.05.2013, charge u/s 392, 302 and 201 r/w section 34 IPC was framed against both the accused, to which they both pleaded not guilty and claimed trial. A separate charge u/s 411 IPC was framed against accused Rinku Sharma to which he pleaded not guilty and claimed trial.
3. Prosecution to prove its case examined as many as 23 witnesses.
4. PW1 is HC Rishi Kumar. He was working as Malkhana Muhrir at PS GTB Enclave. He proved the FIR No. 123/2009 of PS M.S. Park. as Ex.PW1/A.
5. PW2 is Insp. Ravindra Ahlawat. He deposed that on 19.05.2012, he was posted at PS Connaught Place. On that day, Insp. Harish met him in the police station and joined him in the investigation of the present case. Insp. Harish examined him about the investigation done by him in case FIR No. 123/09 of PS MS Park. He further deposed that he had arrested accused Rinku Sharma in case FIR No. 123/09.
FIR No. 64/12
PS Nand Nagri 5 of 52
6. PW3 is SI Ratnu Oraon. He deposed that on 15.02.2012, he was posted as SI at P.S. Nand Nagri and on that day, at around 5.05 a.m, on receipt of DD no.9A, he alongwith Rajbir gate keeper and Ct. Charan Pal reached District Park A Block, Nand Nagri, Delhi. He saw dead body of a male lying in the park. Blood was oozing from the nose of the dead body. One slip of Ramala Sehkari Chini Mill, Baghpat was found near the dead body. It was in the name of Matlub s/o Zabarddin, village 50 Khera Khurtan. One match box was also lying near the dead body having Mark Rajdarbar. One blood stained lunngi having blue, orange and white colour stripes was also lying near the spot. He summoned the crime team and they took photographs of the spot. Thereafter, he got the dead body lifted from the spot and got it preserved in the mortuary of GTB Hospital. He got published hue and cry notice and flashed wireless message for identification of dead body. The photocopy of hue and cry notice was Ex.PW3/B. He deputed Ct. Sachin to display the hue and cry notice. On 18.02.2012, Ct. Sachin informed him that the identify of deceased was revealed as Ashok s/o Shri Chandki Ram, r/o Village Khera Khurtam, Distt. Prabudh Nagar, U.P. After identification of dead body by Sachin, son of deceased, he got the postmortem conducted on the FIR No. 64/12 PS Nand Nagri 6 of 52 dead body of deceased and recorded statement of Ishwar Singh which is Ex.PW3/C and that of Sachin as Ex.PW3/D regarding identification of dead body. He made request for postmortem vide his request Ex.PW3/E and filled the death report form Ex.PW3/F. The post mortem on the dead body was conducted on 19.02.2012 and after postmortem, dead body was handed over to relative of deceased vide receipt Ex.PW3/G. On 15.02.2012, in presence of chowkidar Rajbir Singh, he seized the slip of Chini Mill vide seizure memo Ex.PW3/H. The slip of Chini Mill is Ex.PW3/J. Vide Ex.PW3/K, he also seized the blood stained lungi and match box after converting them in cloth parcel. He lifted the blood samples and earth control samples from the spot and after converting them in cloth parcel and sealing with seal of MP, seized the same vide seizure memo Ex.PW3/L. On 19.02.2012, after postmortem, viscera box and one parcel containing samples of nail clippings were preserved and handed over to him by Ct. Gabar Singh and he seized the same vide seizure memo Ex.PW3/M. He deposited the entire case property in malkhana and thereafter the investigation was transferred to Insp. Harish Chander. On 12.05.2012, he again joined the investigation of this case with Insp. Harish Chander. On that day, he alongwith SI Mukesh Jain and IO had visited FIR No. 64/12 PS Nand Nagri 7 of 52 the place of occurrence and at his pointing out, draftsman SI Mukesh Jain took rough notes and measurements of the spot and prepared scaled site plan. He identified the lungi recovered at the instance of accused Badlu Paswan as Ex.P1 and the match box lifted from the spot as Ex.P2. He also identified the plastic container including the earth material as Ex.P3.
7. PW4 is Rajbir Singh. He deposed that he was working as guard at Horticulture Department of DDA and was deputed at District Park, Nand Nagri. In the intervening night of 1415/02/2012 at about 05.00 a.m., he saw one person lying in the park face down. Thinking that the person was lying there in a drunken condition, he turned up his body and observed that some blood was oozing from his nose and the person was dead. He did not know how that man's body reached there as none had come inside the park. After noticing the dead body, he went to P.S. Nand Nagri and informed the police. This information was recorded by the police and police reached the spot and photographs of dead body were taken. His statement was recorded vide memo Ex.PW4/A. The lungi which was lying near the dead body and a match box were seized by the police from the spot vide seizure memo FIR No. 64/12 PS Nand Nagri 8 of 52 Ex.PW3/K. Blood samples were also lifted from the spot and seized vide seizure memo Ex.PW3/L. A slip of Ramala Sugar Mill District Baghpath was taken out from the pocket of the deceased which was in the name of Matloob and was also seized by the vide memo Ex.PW3/H. The slip is Ex.PW3/J. The police took the dead body in possession and sent the same to mortuary. He identified the photographs of the place and dead body. The photographs were marked A1 to A10. He identified the match box and it was exhibited as Ex.P2 and the lunngi which was lying near the dead body and it was exhibited as Ex.P1.
8. PW5 is Mohan Lal . He deposed that he was tailor by profession and was having mobile phone no.9546668276. He had taken this SIM on the ID of one of his friends namely Bunty. He knew accused Badlu Paswan as Badlu Pawan also used to work in the factory where PW5 used to work and he used to take material from the factory by rickshaw. On 19.02.2012, Badlu Paswan had brought to him a mobile phone instruments and asked him whether he wanted to purchase that mobile phone. He answered in affirmative and on checking that instrument, he found that there was no SIM inside the instrument and its battery was discharged. He got the battery charged FIR No. 64/12 PS Nand Nagri 9 of 52 and he inserted his SIM in the instrument and dialed a number and thus, found the mobile instrument in working condition. Badlu Paswan demanded Rs.700/ whereas he was desirous of purchasing the said mobile instrument for Rs.400/ and thus, the things could not be materialized. After 23 days after the incident, police contacted him and asked him about the mobile instrument and he narrated the entire facts to the police. He gave his made in China mobile phone to the police. The police inquired about the mobile instrument in which he had inserted his SIM card and he stated that that instrument could be with Badlu Paswan. He further deposed that he could identify the mobile phone which was brought to him by Badlu Paswan. The MHCM produced a parcel sealed with seal of AR and on opening it, a NOKIA mobile phone of blackish and grey colour was shown to the witness. He identified it to be the same which was shown to him by Badlu Pawan. On opening the phone, the IMEI no. was found to be 351545/04/362914/5. The mobile phone instrument was exhibited as Ex.P4.
9. PW6 is Bunty. He deposed that he was working in a factory where he was assigned the job of ironing clothes. In the year FIR No. 64/12 PS Nand Nagri 10 of 52 2010, he had provided his ID proof to Mohan Lal for taking a SIM card as he was not having any ID proof of his own and Mohan Lal had taken Sim on his ID. He further deposed that he knew Badlu who used to transport goods from the factory. He did not recollect the exact date but somewhere in February around 2 ½ years ago prior to his examination in chief, Badlu had gone to their factory and at that point of time, Mohan had inserted his SIM in the phone instrument of Badlu. He did not recollect the date, month and year but at one point of time, police had gone to his factory and questioned him and Mohan about the ID and SIM. Both of them were taken to Special Staff Office, Seelampur and they narrated the facts to the police. He stated that he had lost his DL copy of which he had given to Mohan for ID proof but he identified the photocopy of his DL which was on record and it was Marked as PW6/A. He identified his photograph on the CAF Form. The document was then Marked as PW6/B.
10. PW7 is Ms. Pooja. She is daughter of the deceased. She deposed that on 14.02.2012, at around 2 or 2.30 p.m., she was at her house. Her father came alongwith two persons namely Pintu Chairman and his servant. She offered them tea and her father told her that he FIR No. 64/12 PS Nand Nagri 11 of 52 was going to Ghanghreau . He left on a motorcycle with both of those persons at around 2.30 p.m. At that time, her father was carrying a mobile phone having mobile NOKIA 1200 and having a registered mobile no.8755469596. That night her father did not return. She tried calling mobile number of her father but the same was found to be switched off. The next day also, the phone was found to be switched off. On 18.02.2012, a policeman from Delhi went to her house and showed them a photograph asking whether that photograph belonged to her father and she recognized the man in that photograph to be her father and accordingly informed the policeman. They then went to GTB Hospital. She stated that she could identify the mobile phone of her father if shown to her. She was shown the NOKIA 1200 mobile phone Ex.P4. She stated that it appeared to be the same mobile phone which her father used to carry.
11. PW8 is Ishwar Singh. He deposed that on 14.02.2012 at around 3 p.m., he was sitting on the raised platform outside his house and at around 3 p.m., he saw his brother Ashok leaving on a motorcycle with Pintu Chairman and his servant. He inquired from his brother as to where he was going but the reply was given by Pintu FIR No. 64/12 PS Nand Nagri 12 of 52 Chairman who stated that they were going to Ghangherue where there was a feast at the house of one Kanwar Pal Rawari. Thereafter, his brother did not return. On 18.02.2012, at around 1011 a.m., a policeman from Delhi went to his house. He was accompanied by one Matloob who was the resident of his village. Police had reached Matloob because from the match box found on the person of his brother, a sugarcane purchase slip belonging to Matloob was recovered. They showed the photograph of his brother to Matloob and thus, Matloob brought the police to his house. He was shown a photograph by the police and he identified the same to be of his brother. Then he took the police to the house of his brother and then came to Delhi. They then came to a hospital where the body of his brother was lying. He saw the dead body of his brother and received the dead body on 19.02.2012.
12. PW9 is HC Jagdev Singh. On 24.02.2012, he was posted as duty officer. On that day at about 04.10 p.m, on the basis of rukka produced by SI Ratnu Oran, he registered FIR Ex.PW9/B. He made endorsement, Ex.PW9/A, on the tehrir. After registration of FIR, he sent the tehrir and copy of FIR to Insp. Harish through Ct. Munim FIR No. 64/12 PS Nand Nagri 13 of 52 Khan.
13. PW10 is HC Hari Mohan. On 15.02.2012, being posted as MHC(M), PS Nand Nagri, vide entry no. 4331 (Ex.PW10/A) he received three sealed pulindas in malkhana on being deposited by SI Ratnu Oran. He further deposed that as per entry no. 4349 (Ex.PW10B), SI Ratnu Oran had also deposited viscera peti, two sealed envelopes and one cloth pulinda sealed with the seal of NG alongwith sample seal. Vide entry Ex.PW10/C, personal search of accused Badlu Paswan was deposited in malkhana. Vide entry no. 4412 Ex.PW10/D, Insp. Harish Chander deposited two pulindas sealed with the seal of HC in malkhana. He further deposed that as per entry at point A, seven sealed parcels were sent to FSL Rohini through Ct. Bachu Singh. As per entry at point B, through Ct. Mintu Kumar seven sealed parcels were received back with FSL report. He further deposed that as per entry at point C, Insp. Harish Chander had taken the sealed pulinda of mobile for TIP on 17.04.2012 and again deposited that pulinda in malkhana.
14. PW11 is SI Mahesh Chand. In the intervening night of 14/15.02.2012, being posted as duty officer, at about 05.05 a.m., he FIR No. 64/12 PS Nand Nagri 14 of 52 recorded DD No. 9A (Ex.PW3/A) on the basis of information provided by a watchman of DDA namely Sh. Rajbir Singh.
15. PW12 is Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. He deposed that he has been working as a Nodal Officer with Bharti Airtel Ltd since May, 2010. On 30.03.2012, an application was given by Harish Chand in their office whereby he had sought certain information regarding mobile no.8755469596 in regard to investigation of this case. Their company provided the requisite information to Insp. Harish Chand vide covering letter Ex.PW12/A which had his signatures at point A. Since the information was generated by electronic means, the certificate u/s 65B of Indian Evidence Act was also issued which was exhibited as Ex.PW12/B As per their record, the mobile phone was issued in the name of Ashok s/o Sh. Chandgi. The attested copy of CAF form was Ex.PW12/C. The call details record of this mobile phone w.e.f 01.02.2012 to 29.03.2012 was also provided to Insp. Harsih Chand. The true copy of which was exhibited as Ex.PW12/G. It was running into 5 pages and having his signatures on first and last pages and seal impression of their company on each page.
FIR No. 64/12
PS Nand Nagri 15 of 52
16. PW13 is SI U Bala Shankaran. He deposed that on 15.02.2012, he was working as Incharge Mobile Crime Team, North East District, Delhi and on receipt of a call from police control room, he alongwith Ct. Shyam Lal and other staff went at District Park, near Nursery, Nand Nagri where he met SI Ratanu Oran. He further deposed that one unidentified dead body was lying there. Ct. Shyam Lal had taken photographs of the scene of crime from different angles. He prepared a detailed report (Ex.PW13/A) regarding scene of crime.
17. PW14 is Sh. Amar Nath, Nodal Officer from IDEA Cellular Ltd. He deposed that on 30.03.2012, his company had received a letter Ex.PW14/A from Insp. Harish Chander seeking information regarding mobile no. 9540668276 in connection with investigation of FIR No. 64/12. He further deposed that on the basis of that letter, his company had provided requisite information vide Ex.PW14/B, Ex.PW14/C and Ex.PW14/D. He further deposed that as per the customer application form, mobile no. 9540668276 was issued in the name of Bunty Singh, who while obtaining the sim card submitted his driving license as proof of his residence and identity.
18. PW15 is Sh. Amitabh Rawat. On 17.04.2012, being FIR No. 64/12 PS Nand Nagri 16 of 52 posted as Metropolitan Magistrate, Karkardooma Court, on the basis of application moved by Insp. Harish Chander, he conducted TIP proceedings of case property in case FIR No. 64/12, PS Nand Nagri. He further deposed that as per TIP proceedings, witness Sachin Kumar had correctly identified mobile phone Nokia belonging to his (Sachin's) father. He proved the TIP proceedings vide Ex.PW15/A and the application moved by Insp. Harish Chander vide Ex.PW15/B.
19. PW16 is Ct. Ashok Kumar. He deposed that on 24.02.2012 at around 7/8 p.m, duty officer handed him the copies of FIR No. 64/12 with the directions to deliver them to the area Magistrate and other Sr. Police Officers. He delivered the copies to area Magistrate, Joint CP, DCP North East and ACP Seemapuri.
20. PW17 is Ct. Muneem Khan. He deposed that on 24.02.2012 at around 05.00 p.m., on the instructions of the duty officer, he delivered the copy of FIR and original rukka to IO Insp. Harish Chand.
21. PW18 is Ct. Bachchu Singh. On 12.03.2012, he received seven parcels containing exhibits and one viscera peti. After receiving these articles, he deposited those parcels in FSL Rohini and obtained FIR No. 64/12 PS Nand Nagri 17 of 52 receipt from FSL and handed over that receipt to malkhana muhrir.
22. PW19 is HC Tilak Raj. He deposed that on 03.03.2012, he was posted at P.S. Nand Nagri and joined the investigation of this case with IO Insp. Harish Chander and HC Mursaleen. Insp. Harish Chander had received a secret information that the accused of this case Rinku Sharma and Badlu Paswan would be present under the Mandoli Flyover, Nand Nagri and consuming ganja. On reaching there, at the instance of secret informer, they apprehended two persons who disclosed their names as Rinku Sharma and Badlu Paswan. After interrogation, the IO arrested Badlu Paswan vide arrest memo Ex.PW19/1 and took his personal search vide memo Ex.PW19/2. Badlu Paswan made disclosure vide statement Ex.PW19/3 and stated that the lungi which he was wearing at the time of incident had been kept by him in some bushes in Tikona Park, ABlock, Nand Nagri. Accused Rinku Sharma was also arrested by the IO vide arrest memo Ex.PW19/4 and his personal search was taken vide Ex.PW19/5. He made a disclosure vide statement Ex.PW19/6 and stated that he could get the mobile phone recovered from his house. Thereafter, at the instance of the accused Badlu Paswan, they reached at the Tikona Park, FIR No. 64/12 PS Nand Nagri 18 of 52 ABlock Nand Nagri and at the instance of the accused Badlu Paswan one lungi of sky blue colour with checks was recovered from the bushes at Tikona Park, A Block Nand Nagri. IO kept the same in a parcel, sealed it with seal of HC and seized it vide seizure memo Ex.PW19/7. After use, the seal was handed over to him. IO had also prepared the site plan of the place of recovery of said lungi vide Ex.PW19/8. Thereafter, they reached to the house of the Rinku Sharma which was in Bhagirath Vihar, Gokalpuri, Delhi and at the instance of the accused Rinku Sharma, a mobile phone make Nokia was recovered from a bag found in a shelf in the room. There was no SIM in the mobile phone. IO kept the mobile phone in a cloth pullinda, sealed it with seal of HC and seized it vide seizure memo Ex.PW19/9. After use, the seal was handed over to him by the IO. IO also prepared the site plan of the recovery of the mobile phone which is Ex.PW19/10. After returning to the PS, IO deposited the seized articles in the malkhana. This witness was shown the mobile phone make NOKIA and he stated that it was the mobile phone recovered at the instance of accused Rinku Sharma. He was also shown the lungi and he deposed that it was the lungi which was recovered at the instance of accused Badlu Pawan. FIR No. 64/12
PS Nand Nagri 19 of 52 The lungi is Ex.P5.
23. PW20 is Manisha Upadhyaya, Sr. Scientific Officer (Biology), FSL Rohini. She deposed that on 12.03.2012, she was posted as Sr. Scientific Officer at FSL Rohini and on that day, seven sealed parcels were received in their office in case FIR No. 64/12, PS Nand Nagri, Delhi and these were marked to her for examination and on tallying with sample seal, she found seals intact. On opening parcel No.1, she found blood stained earth and it was marked by her as Ex.1. On opening parcel No.2, she found earth control and marked it as Ex.2. On opening parcel No.3, she found one lungi and one match box and marked them as Ex.3a and 3b respectively. On opening parcel No.4, she found one sweater, one dirty shirt, one dirty banyan, one dirty pant, one dirty underwear and one dirty sandal, and marked them as Ex.4a, 4b, 4c, 4d, 4e and 4f respectively. On opening the parcel No.5, she found blood on gauze and marked it as Ex.5. On opening the parcel No.6, she found nail clippings and marked them as Ex.6. On opening the parcel No.7, she found one lungi and marked it as Ex.7. After examining these exhibits, she detected blood on Ex.1, 3a, 4b, 4d, 4f, 5 and 7. Her detailed biological report having her signatures at FIR No. 64/12 PS Nand Nagri 20 of 52 point A is Ex.PW20/1 .She also examined these exhibits serologically and found human blood on Ex.1, 3a, 4b, 4d, 4f, 5 and 7. She detected blood group 'O' in Ex.3a and 5. Her detailed serological report is Ex.PW20/2, having her signatures at point A. After examining these exhibits, she resealed the same with her FSL MU DELHI seal.
24. PW21 is Dr. Neha Gupta, Asstt. Professor, Deptt. of Forensic Medicines, Hindu Rao Hospital, Delhi. She deposed that on 19.02.2012 she was posted as a Sr. Demonstrator in the department of Forensic Medicines, UCMS & GTB Hospital, Delhi. On that day she conducted postmortem on the dead body of one Ashok, son of Chandgi Ram, aged about 40 years, male, on the request of SI Ratna Oran of PS Nand Nagri. The dead body was identified by Ishwar Singh and Sachin. She found the following external injuries on the dead body.
1. Reddish abrasion 8.5x2cm present slightly obliquely over front of neck over the thyroid cartilage, 6cm below chin in the midline, extending for a distance of 4cm from the midline on right side and 4cm below right ramus of mandible and extending for a distance of 4.5cm from midline on left side and 5cm below left ramus of mandible.
FIR No. 64/12
PS Nand Nagri 21 of 52 She found following internal injuries on the dead body. The brain was found congested.
25. Neckbruising of soft tissues and muscles of neck present. Epiglottics congested. Right superior horn of thyroid cartilage fractured with extra vassation of blood in the surrounding tissues.
26. Petechial haemorrhages present over both the lungs and base of heart. All the viscera congested.
27. The time since death was about five days and cause of death was asphyxia as a result of antemortem compression of neck by a hard blunt object.
28. One sealed wooden box containing viscera, one sealed envelope containing blood on gauze, one sealed pullanda containing clothes and one sealed envelope containing nail clippings were sealed with seal of NG along with sample seal were handed over to the IO. Her detailed postmortem report is Ex.PW21/1 running into four pages and having her signatures at point A.
29. PW22 is Ct. Charan Pal. He deposed that in the intervening night of 14/15/02/2012, he was posted at P.S. Nand Nagri and he was on emergency duty from 8 p.m. to 8 a.m. On 15.02.2012, at about 5.05 a.m, he received DD no.9A informing that a dead body FIR No. 64/12 PS Nand Nagri 22 of 52 of a male person had been found at District Park, Nand Nagri. He alongwith SI Ratna Oran reached at DDA Park Nand Nagri and they found the dead body of a male person aged about 4050 years. Blood was oozing out from the nose of the dead body. One lungi was also found near the dead body and the lungi was blood stained. One match box make Raj Darbar and one receipt of sugarcane in the name of Matlub farmer of Ramala Cooperative Sugar Mill Ltd. Bhagpat were also found at the spot. SI called the crime team officials at the spot and they conducted their proceedings and also took photographs. SI seized these articles from the spot and the lungi was kept in a cloth pulinda and sealed with seal of MP and the match box was also kept in a polythene and converted into cloth pulinda and sealed with the seal of MP and these were seized vide seizure memo Ex.PW3/K. IO also lifted the blood earth from the spot, kept it in a plastic container and sealed it with seal of MP. IO also lifted the earth control from spot, kept it in plastic container and sealed it with seal of MP and these were seized vide seizure memo Ex.PW3/L. IO also seized the sugarcane receipt vide seizure memo Ex.PW3/H and said receipt is Ex.PW3/J. On the direction of SI, he took the dead body to mortuary of GTB hospital and the dead body was preserved for 72 hours.
FIR No. 64/12
PS Nand Nagri 23 of 52
30.
PW23 is Insp. Harish Chander, the IO of the case
. He
deposed that on 24.02.2012, he was posted at PS Nand Nagri as SHO. On that day, after registration of FIR, investigation was handed over to him and at the instance of SI Ratnu Oran, he prepared site plan Ex.PW23/1. During investigation, he collected all the documents of proceedings of DD No. 9A and he examined the witnesses. He also made request to the service provider Bharti Airtel to provide the call details of the mobile phone of the deceased. On 25.02.2012, he recorded statements of Sachin and Pooja, children of the deceased and on 27.02.2012, he received the call details of the said mobile phone and came to know the IMEI number of the said mobile instrument. On 01.03.2012, he went to village Khera Khurtan, Distt. Prabudh Nagar, UP. On 02.03.2012, he came to know that one mobile phone number of Idea subscriber was used on mobile instrument belonging to the deceased. On 03.03.2012, Bunty and Mohan came at Police Station and they informed him that the above said mobile instrument which was belonging to the deceased was offered for sale to Mohan by Badlu Paswan and Mohan used his mobile sim on that mobile instrument but the deal could not be completed and he returned the said mobile instrument to Badlu. He recorded statement of Bunty and Mohan. On FIR No. 64/12 PS Nand Nagri 24 of 52 03.03.2012 at about 11.30 p.m., on the information of secret informer, two persons namely Badlu Paswan and Rinku Sharma were apprehended under Mandoli Flyover. After interrogation, he arrested accused Badlu Paswan vide arrest memo Ex.PW19/1 and also took his personal search vide Ex.PW19/2. He also recorded disclosure statement of accused Badlu vide Ex.PW19/3. He also arrested accused Rinku Sharma vide Ex.PW19/4 and also took his personal search vide Ex.PW19/5. He also recorded disclosure statement of accused Rinku vide Ex.PW19/6 . At the instance of accused Badlu, they reached Tikona Park, A Block Nand Nagri and at his instance, his blood stained lungi was recovered from the bushes. It was converted into cloth pulinda, sealed with the seal of HC and seized vide seizure memo Ex.PW19/7. He also prepared site plan of the said place vide Ex.PW19/8. Thereafter, Rinku Sharma led them to his house and from a box in his house, he got recovered one mobile phone make Nokia. On checking IMEI number, he found that it was the same as that of the mobile phone of the deceased. He converted that mobile phone in pulinda, sealed it with the seal of HC and seized it vide memo Ex.PW19/9. He also prepared site plan of the this recovery vide Ex.PW19/10. He had sent the exhibits to FSL and recorded the FIR No. 64/12 PS Nand Nagri 25 of 52 statements of witnesses. On 01.04.2012, he collected the CAF, call details record, certificate u/s 65B of Evidence Act regarding the mobile number of Mohan which was used on mobile instrument of the deceased. On 17.04.2012, TIP of the mobile phone was conducted on his application. During his investigation, scaled site plan was got prepared and same was collected by him. He recorded statements of witnesses. He collected certified copies of chargesheet of case FIR No. 129/09 PS MS Park. After completion of investigation, he filed chargesheet against both the accused. He also collected FSL results and filed supplementary chargesheet against accused persons. He identified the mobile phone recovered at the instance of accused Rinku Sharma. The mobile phone is Ex.P4. He also identified the lungi recovered at the instance of accused Badlu. The lungi is Ex.P5.
31. Thereafter, on 03.12.2014, statements u/s 313 Cr.P.C of both the accused were recorded and both the accused preferred not to lead evidence in their defence.
32. I have heard Ld. Addl. P.P. for the State and Ld. counsels for the accused.
33. It has been contended by Ld. Addl.P.P. on behalf of State FIR No. 64/12 PS Nand Nagri 26 of 52 that the prosecution has proved its case beyond all reasonable doubts as the entire circumstantial chain is complete and links the accused to the commission of crime. He has contended that at the instance of accused Badlu Paswan, lungi Ex.P5 was recovered and this lungi was worn by accused Badlu Paswan at the time of commission of crime. He has further contended that the recovery of mobile phone of the deceased at the instance of accused Rinku Sharma is also a circumstance which establishes the involvement of accused in this crime as once the recovery has been established it was for the accused to justify the possession of the mobile phone of the deceased who had been murdered.
34. Countering the same, Ld. counsels for accused contended that the accused have been falsely implicated in this case by the IO. They have contended that the lungi Ex.P5 which was allegedly recovered at the instance of accused Badlu Paswan was recovered from a public place. They have further contended that the prosecution has not been able to link this lungi to the commission of crime by proving it as a ligature material by which the deceased was strangulated or killed and therefore, the recovery of this lungi at the instance of accused FIR No. 64/12 PS Nand Nagri 27 of 52 Badlu Paswan is of no consequence. They have further contended that the mobile phone which was allegedly recovered at the instance of accused Rinku Sharma has been planted upon him. It is further contended that the mobile phone has been shown to be recovered at the instance of accused Rinku Sharma from his house but in fact, the police did not make any diligent inquiry to find out whether the place belonged to accused Rinku Sharma.
35. The entire case of the prosecution rests on circumstantial evidence. The legal requirement of proving the guilt of accused on the basis of circumstantial evidence has been discussed by the Hon'ble Supreme Court in various judgments such as Shambhu Nath Mehra Vs. State of Ajmer AIR 1956 SC 404; Shivaji Shohib Rao Bobade Vs. State AIR 1973 SC 2622, Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 SC 1622, Pandala Veera Reddy Vs. State of A.P and Other AIR 1990 SC 79, C. Chenga Reddy and Others Vs. State of A.P 1996 (3) 10 SCC 193; Bodh Raj @ Bodha Vs. State of J & K AIR 2002 SC 3164; Trimukh Murty Kirka Vs. State of Maharashtra 2007 (Crl.); Vithal Eknath Adilinge Vs. State of Maharashtra 2009(3) RCR (Crl.) 161.
FIR No. 64/12
PS Nand Nagri 28 of 52
36. The law on this point summed up by Apex Court is as under:
1. The circumstances from which the conclusion of guilt is to be drawn, should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of guilt of accused, i.e. to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature & tendency:
4. They should exclude every possible hypothesis except the one to be proved, and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
37. In the present case, there are only two circumstances by which the prosecution has sought to prove the guilt of the accused. The first is the recovery of lungi Ex.P5 at the instance of accused Badlu Paswan which according to the prosecution was worn by Badlu Paswan at the time of commission of crime.
38. The prosecution has examined two witnesses to prove the recovery of this lungi Ex.P5 at the instance of accused Badlu Paswan. One is HC Tilak Raj (PW19) and other is IO of this case Insp. Harish Channd (PW23). PW19 HC Tilak Raj deposed that after his arrest, FIR No. 64/12 PS Nand Nagri 29 of 52 accused Badlu Paswan made a disclosure vide statement Ex.PW19/3 and then led them to Tikona Park, A Block, Nand Nagri. At the instance of accused Badlu Paswan, one lungi with sky blue colour with checks was recovered from Tikona Park, A Block, Nand Nagri and it is the same lungi which is Ex.P5. During cross examination of this witness, he denied that the entire proceedings were done while sitting in Police Station or that he had not joined the investigation or that no recovery was made from the accused.
39. The other witness is IO Insp. Harish Chand who appeared as PW23. He also deposed on the same lines as that of PW19. During his crossexamination, he deposed that Tikona Park wherefrom the lungi was recovered at the instance of Badlu was at a distance of 01 km. The lungi allegedly recovered at the instance of accused Badlu was recovered after 17 days of incident. He admitted that all side of Tikona Park have residential habitation and that park was regularly frequented by public. When lungi was recovered it was late at night and thus no public person was joined in investigation. Apart from lungi, there was garbage in that area, empty glass and bottles which were in the form of garbage.
FIR No. 64/12
PS Nand Nagri 30 of 52
40. Regarding the recovery of this lungi, I find that the recovery of this lungi Ex.P5 at the instance of accused Badlu Paswan from the public place which is easily frequented by public at large, cannot be attached much value to. It is more so because there is no evidence before the court to link this lungi Ex.P5 to the commission of crime. From the disclosure statement of accused only the part that the accused can get recovered the lungi, is admissible in evidence and the only fact that is admissible in evidence pursuant to that disclosure statement is the recovery of the lungi Ex.P5. The part of the disclosure statement where the accused had stated that this was the lungi which he had worn at the time of commission of crime is inadmissible and it was for the prosecution to prove by independent witness evidence and link this lungi to the commission of crime. The prosecution has miserably failed to bring any such evidence. This lungi was sent to FSL for examination and was examined by PW20 Dr. Manish Upadhyay. In her report Ex.PW20/1, she had given the description of the articles containing in the parcel. This lungi as per prosecution was sealed in a parcel which was sealed with seal of HC. This was found by PW20 in parcel no.7 which was found to be containing Ex.P7 having very few FIR No. 64/12 PS Nand Nagri 31 of 52 blood stains. PW20 then prepared her serological report which is Ex.PW20/2 and according to that report, on lungi Ex.P7 i.e. Ex.P5 in this case, the Scientific Officer had found human blood but as there was no reaction, the blood group could not be separated. Therefore, in absence of any blood group of the blood found on the lungi there could have been no evidence to connect the accused to the commission of crime. Hence, I have no hesitation in reaching the conclusion that the prosecution has not been able to prove that the lungi which was allegedly recovered at the instance of accused was worn by him at the time of commission of crime.
41. The next piece of evidence sought to be proved by the prosecution to link the accused to the commission of crime is the mobile phone Ex.P4.
42. The case of the prosecution is, that this mobile handset was in the possession of the deceased and was being used by him on the day he disappeared. According to the story of the prosecution, the IMEI number of this mobile phone was put under surveillance and on 19.02.2012, a call was made from mobile number 9540668276 by using this handset. This number was traced to one Bunty who appeared FIR No. 64/12 PS Nand Nagri 32 of 52 as PW6 and on the inquiries, Bunty informed police that though the sim card was issued in his name but it was being used by one Mohan Lal who appeared as PW5. This Mohan Lal informed that on the given date i.e. 14.02.2012, accused Badlu Paswan had come to him and offered to sell a NOKIA handset. In order to check whether it was working or not, he inserted his sim card and mad a call. However, as the price could not be agreed upon, he did not buy the phone and gave it back to Badlu Paswan. This phone Ex.P4 according to the prosecution was later on recovered at the instance of accused Rinku Sharma vide recovery memo Ex.PW19/9. This recovery was made pursuant to the disclosure of accused Rinku Sharma which is Ex.PW19/6.
43. The prosecution in order to prove this recovery at the instance of Rinku Sharma has examined two witnesses i.e. IO Insp. Harish Chand and HC Tilak Raj, who were examined as PW23 and PW19 respectively.
44. As per the testimony of PW19 HC Tilak Raj, after his arrest accused Rinku Sharma made his disclosure which was recorded vide statement Ex. PW19/6 and disclosed that he had kept the mobile phone make Nokia at his house. They then reached the house of Rinku FIR No. 64/12 PS Nand Nagri 33 of 52 Sharma at Bhagirath Vihar, Gokal Puri and at his instance, mobile phone make Nokia was recovered from a bag found in a shelf in the room and it was seized by the IO vide memo Ex.PW19/9. He identified the recovered mobile phone as Ex.P4.
45. During his cross examination, he denied that the entire proceedings were done while sitting in the police station or that he had not joined the investigation with the IO or that the accused were not arrested in his presence or that no recovery was made from the accused. He further denied that accused Rinku Sharma had not led them to his house at Bhagirath Vihar or that accused never resided in that house. He further deposed that at Bhagirath Vihar, they met a woman but he did not know her name or relationship with the accused. He could not say whether the said woman was wife of accused Badlu Paswan. He denied that the said room was belonged to accused Badlu Paswan.
46. The second witness is the IO PW23 Insp. Harish Chand. He deposed that after the arrest and recording of disclosure statement of accused Rinku Sharma, accused led them to his house and from a box in his house, accused Rinku got recovered one mobile phone make FIR No. 64/12 PS Nand Nagri 34 of 52 Nokia. On checking the IMEI number, he found that it had the same IMEI number as that of the mobile phone of the deceased. He converted the said mobile phone into a parcel and sealed it with the seal of of HC and seized it vide memo Ex.PW19/9. He further deposed that on 01.04.2012, he collected the call details record and certificate u/s 65 B of the Evidence Act regarding the mobile number of Mohan which was used on the mobile instrument of the deceased.
47. During his cross examination, he deposed that accused was arrested on 03.03.2012 and he had received information regarding use of a sim in the mobile phone of the deceased on 01.03.2012. He denied that the accused was illegally confined to PS Nand Nagri from 20.02.2012 till 03.03.2012. He further deposed that at the stage of his cross examination, he did not remember which family member of accused Rinku was informed about the arrest of accused Rinku Sharma. He did not remember who was the person he met at the place/ room wherefrom the recovery was allegedly effected at the instance of Rinku and therefore, he could not tell whether those persons were family members of Rinku or not. The house from which recovery was effected was constructed upto 22 ½ floors. The recovery was effected from a FIR No. 64/12 PS Nand Nagri 35 of 52 room on the ground floor. He did not verify either from the owner of the house or from the neighbours whether Rinku was occupant of that room or not. He denied that Rinku never used to reside in that room or that no recovery was effected from Rinku or that the mobile phone had been planted upon accused Rinku Sharma.
48. The case of the prosecution is, that this recovery was effected at the instance accused Rinku Sharma. On the other hand, the defence has assailed the recovery and alleged that this mobile phone has been planted upon accused Rinku Sharma and the place which has been shown to be the room of accused Rinku Sharma did not belong to him. It was suggested to both the witnesses of the prosecution that the house did not belong to accused Rinku Sharma or that Rinku Sharma was never an occupant or in possession of that room but the IO did not make any efforts to bring anything on record to connect that room/ house to accused Rinku Sharma. He neither verified from the owner of that house nor from the neighbours to establish whether the room/ house in fact was in possession of accused Rinku Sharma or not.
49. Not only this, from the perusal of the record, something surprising has emerged and that is revealed by the perusal of the arrest FIR No. 64/12 PS Nand Nagri 36 of 52 memos of both the accused. Accused Badlu Paswan was arrested vide memo Ex.PW19/1. This arrest memo showed his permanent address to be of Village Budhwan, PS Khagirya, Distt. Khagirya, Bihar and his present address was also shown to be the same. However, surprisingly the person who was informed regarding the arrest of Badlu Paswan has been stated to be his wife Sudha Devi r/o E14/1, Phase I, Bhagirath Vihar, Gokalpuri, Delhi. Accused Rinku Sharma was arrested vide memo Ex.PW19/4. His permanent address has been shown to be Village Bhatoli, PS Dataganj, Distt. Badayaun, UP and his present address has been shown to the same. However, astonishingly the information regarding his arrest had also been shown to be given to Smt. Sudha Devi, wife of Badlu Paswan, r/o E14/1, Phase I, Bhagirath Vihar, Gokal Puri, Delhi and she has been shown to be his sisterin law. There is no evidence on record to connect or establish any relationship between accused Badlu Paswan and Rinku Sharma. They belong to different regions of the country and different castes as is visible from their names. Therefore, Smt. Sudha Devi, wife of Badlu Paswan could not have been the sisterinlaw of Rinku Sharma. Thus, there has been a clear violation of the constitutional rights of accused Rinku Sharma where information of his arrest was not given to his near FIR No. 64/12 PS Nand Nagri 37 of 52 relatives.
50. From the discussion above, it is very much evident that the residence of accused Badlu Paswan in Delhi was at E14/1, Phase I, Bhagirath Vihar, Gokal Puri, Delhi because it is where his wife was stated to be residing. Amazingly, this is the same address wherefrom the police had shown the recovery of mobile phone at the instance of accused Rinku Sharma. That being the case, it is emerging in evidence that in fact accused Rinku Sharma could not have been in possession of the room which was used by accused Badlu Paswan for his residence. Thus, I have serious doubts about the recovery of this mobile phone at the instance of accused Rinku Sharma.
51. Apart from this, I have also to observe that the IO, during his examination in chief had stated that as per record on 27.02.2012, he received call details of mobile phone of the deceased and he came to know about the IMEI number of the instrument being owned by deceased. The accused had been arrested by the IO on 03.03.2012. The call details record of the deceased have been proved on record by PW12 and exhibited as Ex.PW12/G. These CDRs have been shown to be generated on dated 31.03.2012 at 12.14.17 p.m. There is nothing on FIR No. 64/12 PS Nand Nagri 38 of 52 record to show that prior to 31.03.2012, the IO had anything in his possession to find out IMEI number of the mobile handset of the deceased because he could have only known of this IMEI number after receiving the call details record. Not only this, the IO had connected the accused to this crime on the basis of a call made by PW6 Mohal Lal from his mobile phone no. 9540668276 using the handset of the deceased. However, the CDR of this mobile phone which is Ex.PW14/D was accompanied by the certificate u/s 65B of the Evidence Act dated 30.03.2012 Ex.PW14/E. Not only this, there is a document in the form of a request letter to the service provider which is dated 27.03.2012. That request letter is Ex.PW14/A. So officially, before 30.03.2012 and first week of April 2012, the IO was not aware about either the IMEI number of the phone of the deceased which he came to know after he received the CDRs Ex.PW12/G and the mobile phone number which was used in the handset of the deceased which he only came to know after he had received Ex.PW14/D. Thus, before 30.03.2012, he could not have come to know that accused Badlu Paswan had offered to sell the mobile handset of deceased to PW5 Mohan Lal. That being the case, he could have no evidence to lead him to Badlu Paswan and eventually arrest him on 03.03.2012. Therefore, FIR No. 64/12 PS Nand Nagri 39 of 52 there are only two possibilities: either the mobile phone was in possession of the police and thus, the police was aware about its IMEI number and later on planted it upon the accused or; the police had done some unofficial investigation to obtain these details which had not been brought before the court. In both these situations, it is a grave illegality committed by the IO. Thus, not only the recovery of this mobile phone Ex.P4 is highly doubtful but the way the accused have been connected to this mobile phone is very suspicious and unbelievable.
52. I accordingly find that the police has miserably failed to prove the two pieces of circumstantial evidence i.e. the lungi Ex.P7 and mobile phone Ex.P4 against the accused and link those articles to the commission of the crime and hence, it is a case of no evidence.
53. However, I find it my bounden duty to discuss some other aspects of this case.
54. The first is regarding the cause of death of the deceased and the theory of prosecution as to how the deceased was murdered. According to the autopsy surgeon, who had conducted the post mortem of the deceased, the cause of death of deceased was asphyxia as a result of antemortem compression of neck by a hard blunt object. When the FIR No. 64/12 PS Nand Nagri 40 of 52 autopsy surgeon appeared as PW9, the court asked a specific question to the autopsy surgeon regarding her opinion of death being caused by antemortem compression of neck by a hard blunt object and further inquired that if she could say whether the death could have or could not have been caused by a ligature material such as a piece of cloth? The autopsy surgeon categorically opined that in order to produce death due to asphyxia, a ligature mark which would have been more oblique and of longer length should have been present which was not there in this case and thus, the possibility of a hard blunt object was more.
55. The case of the prosecution or the IO stands in complete contradiction to the opinion of the autopsy surgeon. According to the IO and exacted confession of the accused, the deceased was killed by strangulating him with the help of a lungi i.e. the ligature material. During the cross examination of the IO, the court had put a specific query to the IO that as per his case, the accused had strangulated the deceased using a lungi whereas the doctor had opined the cause of death to be asphyxia as a result of antemortem compression of neck by a hard blunt object, then why did he not seek subsequent opinion from autopsy surgeon as to whether the death could be caused by FIR No. 64/12 PS Nand Nagri 41 of 52 strangulating by a lungi or other ligature material? The IO did not put forward any explanation to this query. This shows a serious lapse on the part of the IO as the opinion of the autopsy surgeon is antithetic to the theory of the IO but the IO made no efforts to reconcile his theory with the opinion of the doctor. It is also clear that despite having an opinion from autopsy surgeon that death may not have been caused in the manner stated by him; IO did not make any effort to check whether his investigation was in right direction. Why he did not do so may become clear in discussion to follow.
56. The next and the most important aspect which cannot be overlooked by me, had emerged from the testimony of PW8 Ishwar Singh, who is the brother of the deceased.
57. He deposed that on 14.02.2012, he was sitting on a raised platform outside his house. At around 03.00 p.m., he saw his brother Ashok leaving on a motorcycle with Pintu Chairman and his servant. He inquired from his brother as to where he was going. However, the reply was given by Pintu Chairman who stated that they were going to Ghangheru where there was a feast at the house of Kanwar Pal Rawari. Thereafter, his brother did not return. He had identified the dead body FIR No. 64/12 PS Nand Nagri 42 of 52 of his brother.
58. During his cross examination, he deposed that he had told the police that he had doubts that Pintu Chairman, his (Pintu Chairman's) servant, Kanwar Pal Rawari and one Dr. Tanveer , who originally belonged to Delhi, might be responsible for the disappearance and death of his brother. He further deposed that the police had found that on 14.02.2012 at around 12 mid night, his brother had made a call to wife of Pramod, resident of Lumbh. He had gone to village Lumbh and in his presence, inquiries were made by the police from wife of Pramod and she had stated to the police that the deceased had called her that night and stated that he was hiding in a sugarcane field as some people were after his life.
59. On the aspect of the probable involvement of Pintu Chairman who was lastly seen with the deceased when the deceased was alive, IO Insp. Harish Chander was examined as PW23.
60. During his cross examination, PW23 deposed that as per the call details record, the last location of the deceased, on the night of the incident at about 11.30 p.m., was near about his village. The distance between Delhi Border and the native village of the deceased FIR No. 64/12 PS Nand Nagri 43 of 52 was about 7080 kms. During his inquiries, he came to know that on the day of incident, the deceased alongwith his friend Pintu Chairman and two more went to neighbouring village for a party with those friends. On that day, he had examined two of those friends but he had not examined Pintu Chairman. He had gone to the village of Pintu but Pintu was not there. He had not recorded the statements of two friends of the deceased who were examined by him but they were thoroughly examined and this fact was mentioned in his case diary. Thereafter, the court put a question to him as to what convinced him that after the party, the deceased and his friends had gone to their respective houses. The witness sought permission of the court to refresh his memory from his case diary. After going through the case diary also, he could not give any reasons for this. He further deposed that although they had not stated any reasons, the family members of the deceased had stated to him they suspected that Pintu Chairman who had taken the deceased with him, might have killed the deceased. He further deposed that he had come to know that the last call was made by the deceased to a woman of his neighbouring village and he had examined that woman. He did not remember what that woman had told him about the last conversation which she had with the deceased. He had tried to find why FIR No. 64/12 PS Nand Nagri 44 of 52 the deceased, without informing his family, would suddenly come to Delhi but nothing could be revealed. He further deposed that after the arrest of the accused in this case, family members of the deceased had moved a complaint to his superior officers stating they suspected Pintu Chairman. Probably some other persons were also named in that complaint but he did not remember their names. The complaint was marked to him. No record pertaining to that complaint or what he did pursuant to that complaint had been mentioned in the case diary. He further deposed that the investigation on the complaint which the family members of the deceased had given to his superiors and was marked to him, was a part of the investigation of this case. He was asked to explain why the investigation pursuant to that complaint was neither made a part of court record nor was mentioned in case diary and the witness stated that he had nothing to say. He further deposed that he had made inquiries from one Dr. Tanveer, who was a resident of Uttam Nagar. He did not remember whether Dr. Tanveer was examined prior to the complaint made by family members of the deceased or after the complaint. He had also examined one Kanwar Pal Rawari and servant of Pintu Chairman. He could not give any explanation why either Dr. Tanveer or Pintu Chairman or Kanwar Pal or the servant of FIR No. 64/12 PS Nand Nagri 45 of 52 Pintu Chairman were not cited as witnesses in this case. He denied that in order to save real culprits, he had falsely implicated accused in this case. He further denied that he had not conducted investigation in unfair and unbiased manner.
61. Now from this evidence on record, it is very much clear that the IO had not made any serious efforts to investigate the role of the persons who had lastly been seen with the deceased when he was alive. These persons were the alleged Pintu Chairman and his servant. According to the call details of the deceased, the deceased had lastly made a call to a woman of Village Lumb. According to PW8 Ishwar Singh, who is the brother of the deceased, he alongwith the police had gone to the house of that lady at Village Lumb and that lady had informed the police that in the last call, the deceased had stated to her the he was hiding in sugarcane fields as some people were after his life. Meaning thereby, this statement would have clearly indicated to the police that the life of the deceased was under threat when he was hiding in sugarcane field at around 11.30 p.m. and the field was near his village but the IO made no efforts to investigate this angle to find out whom the accused feared. He did not even record statement of that FIR No. 64/12 PS Nand Nagri 46 of 52 woman and in his cross examination stated that he did not even remember what that woman had stated. The IO did not make any of the persons who were lastly seen with the deceased when he was alive as witnesses in this case so that there could be some clarity in investigation.
62. I have gone through the case diary and have found some bewildering contents in the case diary. The IO had stated that he had never interrogated Pintu Chairman whereas his case diary dated 26.05.2012 reveals that he had sent SI Rajiv Kumar to interrogate Pintu Chairman and the interrogation of Pintu Chairman as recorded by SI Rajiv Kumar is on police file and is signed by the alleged Pintu Chairman. This interrogation at least reveals one fact that deceased did not have any money on him with this goes the alleged motive with which the accused killed the deceased.
63. I have also found in the case diary three signed statements of Ms. Pooja (PW7) the daughter of the deceased, one Ishwar Singh (PW8) brother of the deceased and one Alim, the servant of deceased Ashok. All these witnesses in these signed statements before the police which was recorded by SI Ratnu Oraon had stated that Pintu Chairman FIR No. 64/12 PS Nand Nagri 47 of 52 and his servant had forcibly taken the deceased with them and that they had doubt that in the death of the deceased, Pintu Chairman could have a hand. However, these statements were deliberately withheld from the court. Not only this, fresh statements u/s 161 Cr.P.C of these witnesses were recorded wherein it was nowhere stated that they suspected Pintu Chairman or that the deceased was forcibly taken by Pintu Chairman and his servant. This creates serious doubt about the manner in which the investigation was conducted by the IO.
64. Further, the IO during his cross examination had stated that he had examined Dr. Tanvir who was a resident of Uttam Nagar. However, this doctor was not made a witness in this case and this fact of examination of Dr. Tanvir does not find mentioned in the case diary.
65. In view of the above discussion, I find that the prosecution has failed to bring any evidence on record which could link the accused to the commission of present crime. The lungi allegedly recovered at the instance of accused Badlu Paswan could not be connected to the crime. The recovery of the mobile phone of the deceased at the instance of accused Rinku Sharma becomes doubtful because (a) the recovery was not effected from the house of accused FIR No. 64/12 PS Nand Nagri 48 of 52 Rinku Sharma but was effected from the house of accused Badlu Paswan, (b) the recovery was effected much prior to the receipt of CDRs of the deceased Ex.PW12/G and it is only then the IO could have come to know about the IMEI number of the phone of the deceased and, (c) Ex.PW12/G was generated on 31.03.2012 and the accused had been arrested and recovery of the mobile phone of the deceased had been effected on 04.03.2012 that is much prior to the receipt of the CDRs which could have revealed IMEI number of the phone of the deceased.
66. I also find that the IO despite having clear suspicious circumstances against Pintu Chairman, by virtue of statements of family members of the deceased and complaint made by them to the superior officers of the IO, did not investigate this angle at all.
67. In view of these overall facts and circumstances, I find that the prosecution has not only failed to prove its case against both the accused but, there is a high probability that the accused were falsely implicated in this case as the investigation in all angles of the matter was deliberately not done. Therefore, both the accused are honorably acquitted of the charges framed against them. Their bail bonds stand FIR No. 64/12 PS Nand Nagri 49 of 52 cancelled. Sureties stand discharged.
68. Before parting, I find it necessary that a finding regarding the conduct of investigation needs to be given in this case in view of the judgment of Hon'ble Supreme Court in State of Gujarat Vs. Kishanbhai, etc. 2014(1) SCALE 177 wherein it is held that:
''21. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability....''
69. I am unable to fathom why the IO despite a clear doubt on his theory of how the deceased was murdered as according to him the deceased was strangulated by a lungi whereas according to the autopsy surgeon the death of deceased was caused by compression of neck by a hard blunt object; where the deceased could have been murdered (as at around 11.30 p.m, he was near his village); the motive FIR No. 64/12 PS Nand Nagri 50 of 52 to murder the deceased (as according to the CDR, the deceased did not have any money on him); the persons who may have killed the deceased (as the deceased fearing his life was hiding from some persons in the sugarcane field and these persons could not have been the accused) ; the IO did not investigate all the angles in this case. I am constrained to observed that for reasons unknown the IO deliberately took line of investigation which resulted in false implication of accused and real culprits remaining at large.
70. In view of my observation into the conduct of the IO in the present case, I direct learned Commissioner of Police, Delhi to initiate an inquiry against the IO for his failure to discharge his duty and file an action taken report in this court within one month. For that purpose, I find it necessary that the case diary of the police be paginated and placed in a sealed cover, after taking photocopy of the file if the prosecution finds it necessary, and attached with this file.
71. As the accused have been honorably acquitted by the court and this case had never been solved by the police, justice remains elusive to the deceased and his family members, who are victims of the crime. Therefore, I further direct the learned Commissioner of Police, FIR No. 64/12 PS Nand Nagri 51 of 52 Delhi to have this matter reinvestigated under the direct supervision of an officer not below the rank of DCP so that the long arms of the law can reach the real culprits. A compliance report be filed within one month from today. File be consigned to the record room.
Announced in open court (Parveen Singh) today on 23.02.2015. Additional Sessions Judge03 (This judgment contains 52 pages (NE): Karkardooma Courts, and each page bears my signatures.) Delhi.
FIR No. 64/12
PS Nand Nagri 52 of 52