Delhi District Court
Titled As State vs Azad Khan2013 (4) Jcc 2501 on 25 January, 2014
1
IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI : DELHI
SC NO. 41/10
STATE
versus
1. Lakhi Chand Mehto
S/o Shri Baichen Mehto
R/O Village Pachnor, PS Beil Khand
Sita Marhi, Bihar
Present address
18/122, Gali no. 6, East Moti Bagh
Sarai Rohilla, Delhi.
2. Rajender Kumar
S/o Shri Ram Sumer Kumar
R/o VillageVidushal, District Kunda
Distt Partap Garh, UP.
FIR No. : 22/10
Offence U/S : 302/394/397/34 IPC
Police Station : Sarai Rohilla
DATE OF INSTITUTION: 11.08.2010
DATE OF JUDGMENT:25.01 .2014
JUDGMENT
1. The brief facts of the present case are that S.C.No. 41/10 Page 1 of 59 pages 2 accused persons Lakhi Chand Mehto and accused Rajender are charged of committing murder of Madan s/o Ram Prashad on the intervening night of 30.01.2010 and 31.01.2010 at unknown time at A827, Shastri Nagar, Delhi. Both accused persons were also charged for committing robbery of cash, watch and silver coins and on 12.04.2010 accused Rajinder Kumar got recovered one ladies golden colour watch and one silver coin from rented house No. 533, Gali No. 6, Second Floor, Kishan Ganj, New Delhi. On 12.04.2010 accused Lakhi Chand Mehto got recovered one watch of golden colour and silver coins from rented house no. 18/122, Gali No. 6, East Moti Bagh, Sarai Rohilla, Delhi. FIR was registered u/s 302/397/411/34 IPC. The investigation was taken over by PW29 Inspector Jai Bhagwan . During the investigation, the statements of witnesses were recorded. Disclosure statement of accused persons were recorded and in pursuance thereof chance prints were lifted from the scene of S.C.No. 41/10 Page 2 of 59 pages 3 occurrence. After completion of investigation, accused were charge sheeted.
2. On 14/12/2010, both accused were charged for having committed the murder of Madan s/o Ram Prasad u/s 302 IPC. They were also charged for the offence u/s 392/411/34 IPC to which they pleaded not guilty and claimed trial.
3. Prosecution examined 29 witnesses in all to bring home the guilt of the accused.
The substance of the prosecution evidence is as follows :
4. PW1 HC Anand Singh had deposed that on 3112010 he was working as Duty Officer at PS Sarai Rohilla since 9 a.m. to 5 p.m. On that day at about 10.25 a.m. he received information, regarding the theft at A827, Shashtri Nagar, Near Hanuman Mandir, he recorded this information vide D D No. 12 A in his daily dairy register, copy of the same is Ex. PW1/A. At about 10.45 a.m. SHO Inspector Jai Bhagwan made his S.C.No. 41/10 Page 3 of 59 pages 4 departure entry in respect of DD No. 12 A stating that dead body of one chowkidar was laying at factory A827 Shashtri Nagar, this departure entry was made vide DD No. 14 A, in daily dairy register, copy of the same is Ex. PW1/B. At about 1.45 p.m he received rukka through Ct. Vikas sent by SHO Inspector Jai Bhagwan. On the basis of which he had recorded formal FIR in the computer, copy of FIR Ex. PW1/C . He recorded DD no. 16 A in this regard in daily dairy register, copy of the same is Ex. PW1/D. After the registration of the case, the copy of the FIR and rukka was sent to Inspector Jai Bhagwan through ct. Vikas and the copy of the said FIR, were sent to the Sr. Police Officers as well as to the concerned court through Ct. Satbir
5. PW2 Shri Gurmeet Singh had deposed that in January, 2010 he was residing at A827/B, Shastri Nagar, Delhi. He had been running his factory at the above said address i.e. A827/B in January, 2010. On S.C.No. 41/10 Page 4 of 59 pages 5 3112010 at about 9 a.m he was standing at the gate of his factory. He saw one Umesh, who was calling chowkidar Madan of another factory. He asked him as to why he had come today there being holiday, Umesh told that he had come there to keep some goods there. Then he and Umesh went towards the backside of the factory and they found the shutter of the factory was opened upto to the height of 1½ feet. He suspected and telephoned to the owner of the factory of chowkidar Madan and the owner of the factory told him that he was sending one Praveen Sharma. After sometime Praveen Sharma arrived there. Praveen also called chowkidar but no response was there. Then he, Praveen Sharma and Umesh went up from the backside and they saw in the office one empty plastic bottle of wine and broken pieces of scissor were lying there and after sometime police also arrived and found the chowkidar Madan was dead.
6. PW3 Smt Kalawati had deposed that S.C.No. 41/10 Page 5 of 59 pages 6 Deceased Madan was his younger brother. He was working as Chowkidar at the factory of Om Prakash at Shastri Nagar. On 2912010 at about 5 to 6 p.m., she talked to his brother Madan on phone as he called her and told that he has brought Rs.10,000/ from Umesh from Rajouri Garden. He was knowing Umesh. She instructed her brother to keep the money safely. Her brother was to go to native village after two days. She also heard a voice of another man and when she asked her brother he told her that said man was also working in the factory but the name of said man was not told by him. On 31st January, 2010, her husband received a call from Praveen Sharma that there was a theft in the factory and Madan has been murdered. She along with her husband went to the factory and found that her brother was murdered.
7. PW4 Shri Ram Avtar had deposed that deceased Madan was his brother in law. He had identified the dead body of deceased vide his statement Ex.PW4/A. S.C.No. 41/10 Page 6 of 59 pages 7
8. PW5 Parveen Sharma had deposed that he had been working in a factory which manufactures Socks knitting machines under the name Knit Socks Machinery Works at A827, Shastri Nagar, for the last 20 years. The factory is owned by Om Parkash. Deceased Madan used to work at the house of factory owner Om Parkash Harjai and thereafter started working at the factory as peon twothree months prior to the incident. Madan used to stay in the factory itself during the night. Earlier Poona Ram was working as peon but when Madan came, Poona Ram started working at the workshop of the factory. The timings of the factory were 9am to 5.30pm. After 5.30pm, Madan used to be there in the factory and sometimes the worker whose work was not finished by 5.30pm. On 31/1/2010, he was at the home in the morning. He got a telephonic call at about 9/9.30am from Sh. Om Parkash Harjai who was calling from Haridwar and asked him to visit the factory to check as he has been informed by S.C.No. 41/10 Page 7 of 59 pages 8 neighbouring Sardarji Bittu that shutter of the back side of the factory was opened and unlocked. After about 15 minutes he reached the factory where he met Umesh, worker of Bawana unit, and Bittu, standing at the front gate of the factory. The gate was locked from inside. They went to the back side and found that shutter was partly opened. They entered the factory and the office and found that Madan was not there. They also found that someone had tried to break open the locker. He telephoned Om Parkash Harjai and he asked him to call the police by dialing
100. he then called PCR and informed them about the theft. He asked Umesh to go upstairs and check Madan and when Umesh went upstairs, he found Mandan lying dead on the staircase of second floor. He also went there and found Madan lying dead. Then police reached and thereafter dog squad and crime team also reached. In the office, one liqour bottle was kept on the table and one wire cutter, broken scissor S.C.No. 41/10 Page 8 of 59 pages 9 and pieces of cigarette and in another room there was Reti (filer) lying on the table. At the workshop, one plate of namkeen, two glasses were lying and another two glasses were lying in the park outside the factory. Prior to this on 29/1/2010, deceased Madan accompanied him from the factory and he dropped him at Moti Nagar. He told him that he has to take money from someone in Rajouri Garden as Madan was going to be engaged in February. Next day, he was showing Rs.10,000/ (ten notes of Rs.1000/ each) stating that he brought the same for engagement. On 31/1/2010, the purse of deceased was lying near his dead body and it was empty. Police recorded his statement Ex. PW 5/A. The purse was taken into possession by the police vide Ex. PW 5/B. The glasses were seized by the police vide Ex. PW 5/C, wire cutter and scissor were seized vide Ex. PW 5/D, another glass taken into possession vide memo Ex. PW 5/E, the plate of namkeen was seized vide Ex. PW 5/F, plastic pipe S.C.No. 41/10 Page 9 of 59 pages 10 was also seized by the police vide memo Ex. PW 5/G, plastic bottle was seized by the police vide Ex. PW 5/H, the iron piece was taken into possession by the police vide Ex. PW 5/J, the burnt cigrette, biri, match sticks were seized by the police vide Ex. PW 5/K. In the month of April 2010, , police brought Lakhi Chand, Rajender and Vimal Paswan to the factory/spot and accused disclosed as to how they had committed the offence. Then he joined the police and they went to house of Lakhi Chand from where Lakhi chand got recovered one wrist watch having name of the factor written on the dial , one silver coin with the writing Om Shiv Shakti Sewa Mandal and both these items were seized vide Ex. PW 5/L bearing his signatures. Then they went to the house of Rajender but he did not climb the stairs (due to leg problem) to go to the first floor. The police brought one cable wire black colour and one ladies wrist watch having name of the factory written on the dial, from the house of Rajender and S.C.No. 41/10 Page 10 of 59 pages 11 they were seized vide Ex. PW 5/M and N bearing his signatures.
9. PW6 Ct Ravinder had deposed that On 31/1/2010, he was working as photographer crime team North District. On that day on the receipt of information he reached at the spot at 11.15am and took 9 photographs from the place of incident. Same are Ex. PW A1 to A9 and negatives of the same are Ex. PW A10 to A18.
10. PW7 ASI Manish Kumar Bhardwaj had deposed that on 31.01.2010 he was posted as Incharge, crime team, North Distt. as finger print expert. On that day on receipt of information he visited the place of incident ie. A827, Shastri Nagar, Sarai Rohilla. From the spot he developed two visible chance print from two empty glasses. On the basis of the same he prepared report Ex.PW7/A bearing his signature at point X.
11. PW8 SI Davender had deposed that On S.C.No. 41/10 Page 11 of 59 pages 12 31.01.2010 he reached at spot ie. A827, Shastri Nagar on receipt of information with team. He inspected the place of incident and photographs of the spot were taken from different angles at the instance of IO. He prepared his report and handed over to IO. The carbon copy of the same is Ex.PW8/A bearing his signature at point X.
12. PW9 Raj Kumar is brother of Om Parkash, employer of deceased Madan. He also reached the factory of Om Parkash on 31/01/2010.
13. PW10 Shri Jaswant Rai also deposed on the lines of PW9, Raj Kumar. Shri Jaswant Rai (PW10) also an employee of Shri Om Parkash and had visited factory on 31/01/2010 on receiving the information from Om Parkash.
14. PW11 Ct Vikas had stated that on 31.01.2010, at about 11.00 am, on receipt of information vide DD no. 12A, he alongwith HC Tek Ram reached at factory no. A827, Shastri Nagar, Hanuman Mandir. There S.C.No. 41/10 Page 12 of 59 pages 13 Praveen Kumar Sharma and one Umesh met them. They found the shutter of backside of the factory was opened up to height of one and half feet. They entered inside the factory through the front gate and they went at first floor. They found the handle of door of office of factory broken. There was empty whisky bottle lying on the table. Pieces of burnt cigarettes etc. were lying there. One seizure and wire cutter were lying on the sofa and then they went to the second floor and found the dead body lying on the stairs. Praveen and Umesh identified the dead body as of Madan, chowkidar. One pipe and purse were lying near the dead body. The tongue was coming out of the mouth and there were injury mark on the neck of the body. SHO and SI Raj Kumar also reached there. Crime team and dog squad were called there. SHO recorded the statement of Praveen Kumar Sharma on which he made endorsement and he took the same to PS and got the case registered. After the registration of the case, he S.C.No. 41/10 Page 13 of 59 pages 14 came back to the spot with copy of FIR and rukka and handed over the same to SHO. The dead body of the deceased was taken to mortuary, Subzi Mandi where postmortem of the dead body was conducted and after postmortem, the dead body of deceased was handed over to relatives in lieu of receipt Ex.PW4/B bearing his signature at point Y on identifying the dead body by Ram Avtar and Satish vide their statements Ex.Pw4/A and Ex.Pw11/A bearing his signatures at point X respectively.
15. PW12 SI Raj Kumar reached the spot of incident with Inspector Jai Bhagwan. PW12 had deposed regarding recovery of dead body of Madan and other case property, as per testimony of PW11. The dead body of chowkidar was sent to Subzi Mandi mortuary through HC Tek Ram. Witness had identified the case property ie one leather purse Ex.P7, pieces of bidi/cigarettes and matchsticks Ex.P9, pieces of iron Ex.P10, two glasses Ex.P8, three glasses Ex.P6, one S.C.No. 41/10 Page 14 of 59 pages 15 empty plastic bottle of whisky doctor's choice Ex.PX, one seizure Ex.P1,one cutter Ex.P2, raity Ex.P3, one plastic plate Ex.P5, plastic pipe Ex.P4.
16. PW13 Umesh had deposed that for the last 10 years, he have been working as helper in the factory of making socks belonging to Om Prakash situated at Bawana Industrial area, Delhi. About some days ago, it was on Sunday he had gone to another factory situated at Shashtri Nagar of his employer Om Prakash where Madan was working as chowkidar, in the morning time to hand over some goods to Madan, chowkidar and found the same closed. The door of the factory could not be opened hence he went to the adjacent factory which belongs to one Sardarji. He asked as to why factory was closed. On asking by Sardarji, he went to the backside of his factory . The Sardarji of the adjoining factory telephoned to his employer Om Prakash who told that he was sending Praveen Sharma. Praveen Sharma arrived there and found that shutter S.C.No. 41/10 Page 15 of 59 pages 16 of the backside gate of the factory was partially opened. They opened the shutter and he alongwith Praveen Sharma and Sardarji went inside the factory. They went up in the office at second floor and they found one seizure, one cutter, one raity, pieces of cigarettes and one bottle of whisky were lying in the office. The lock of the office was broken. Then they went up to see the chowkidar namely Madan. They found Madan lying dead on third floor of the factory. Thereafter Parveen Sharma telephoned to the police. Police arrived there and started proceedings, police sent the dead body to mortuary and took the articles found on spot in possession vide various memos.
17. PW14 Satish had deposed that Madan, deceased was his younger brother. He was working as chowkidar in the factory of Om Prakash situated at A827, Shastri Nagar. About 1 / 1 ½ months ago of the incident, Madan came in the said factory as chowkidar. Prior to this, Madan was working as house servant in S.C.No. 41/10 Page 16 of 59 pages 17 the house of employer Om Prakash at West Punjabi Bagh. On 29.01.2010, he talked to his brother Madan and he told him to go to village on 01.02.2010 as his engagement ceremony was to be done on 10.02.2010. On 31.01.2010, Praveen Sharma informed him about the murder of his brother Madan. He went to the factory of Madan at Shastri Nagar and found him dead on stairs. He identified the dead body of his brother Madan at mortuary vide his statement Ex.PW11/A and received the same after postmortem in lieu of receipt Ex.PW4/B.
18. PW15 Om Parkash had deposed that he is a business man and running his business at A827, Shastri Nagar in the name and style of Knit Socks Machinery Works and used to manufacture the socks knitting machine since 1985. There are about 1213 workers in the factory. In the year 2010, he had employed Praveen Katiyal, Praveen Sharma,Rajender Singh, Yashvir Kumar, Sunil Kumar, Jaswant Rai, Vishal, S.C.No. 41/10 Page 17 of 59 pages 18 Pappu, Tejpal, Puna Ram, Madan and Harish apart from above workers, Ratan and Raju were working as part time employee. At the time of incident, Madan (deceased) was employed as security guard (chowkidar) in the factory and he remained present in the factory for 24 hours. Prior to his employment as a chowkidar in the factory, he was working in his house as a servant and thereafter he had gone to his native village for about three months. Thereafter he was employed as a chowkidar in the factory. Puna Ram was also employed in the factory as a helper and he used to leave the factory at about 0607.00 p.m after closing the factory and Madan deceased remained present in the factory. The working hours of factory was 09.00 am to 06.30 p.m. his factory opened from front as well as from back side after the work hour, it was closed by security guard on both sides and shutter was locked from both the sides and Madan used to stay in the office which is in the factory premises. After closing the S.C.No. 41/10 Page 18 of 59 pages 19 factory, keys remained with Madan. On 30.01.2010, he had gone to his house after closing the factory. On 31.01.2010, he went to Haridwar in Dehradun Shatabdi in the morning and came back to Delhi at about 11.00 p.m. Vimal was also employed in his factory as a helper and he had left his job on 15.01.2010 and left the factory without disclosing anything. Vimal had knowledge regarding the keys of the factory as he also used to sleep in the factory after the working hour prior to the employment of Madan as a chowkidaar. On 31.01.2010, in the morning when he was in the Shatabdi train, he received a call from Sh. Gurmeet @ Bittoo who was his neighbour where his factory was situated and he told him that the back side shutter of his factory was opened. On this, he told him kindly to close the shutter and locked it and he also told him that he would send some of his employee. Thereafter he made a call to his employee Praveen Sharma to reach at factory and he had received the abovesaid S.C.No. 41/10 Page 19 of 59 pages 20 information from Sh. Gurmeet. After some time, his employee Praveen Sharma made him a call and told him that the handle of locker in his office was broken and there was a theft and he told him to make a call at 100 number. After 1520 minutes, he again received a call from Praveen Sharma and he informed that Madan was lying unconscious at staircase and dead. In the morning of 01.02.2010, he reached his factory where police officials met him and one person from Midda Almirahs was called and he got opened his locker. He checked the same and found that everything lying in the locker was as it is and there was no theft from locker. Thereafter he checked the drawer (daraj) of table and found three wrist watch ie one ladies wrist watch and two gents watches and silver and metal coins were stolen. On the coins, "Bhole Shiv Shakti Sewa Sadan" were engraved. He had handed over the detailed copy of attendance of his worker from October 2009 to January 2010 to IO which was taken S.C.No. 41/10 Page 20 of 59 pages 21 into possession vide seizure memo Ex.PW15/A bearing his signature at point A. The photocopies of attendance register running into 4 pages are collectively Ex.PW15/B.
19. PW16 HC Tek Chand is the member of investigation. He had deposed on the same lines as deposed by PW11 Ct Vikas.
20. PW17 Tarun Yogesh, Metropolitan Magistrate had deposed that he had recorded the statement u/s 164 Cr.P.C of Sambodh Paswan and Sanjay Dass. He recorded the statement of Sambodh Paswas Ex.PW17/D and statement of Sanjay Dass Ex.PW17/J.
21. PW18 Dr Akash Jhanjee had deposed that on 01.02.2010, at 11.35 a.m, he conducted postmortem examination on the body of deceased Madan S/o Sh. Ram Prashad, aged 23 years brought by Inspector Jai Bhagwan PS Sarai Rohilla and on external examination, it showed following injuries: 1 Ligature mark in the form of pressure abrasion S.C.No. 41/10 Page 21 of 59 pages 22 present with incomplete oblique disposition present around the front and sides of the neck.
2 Abrasion reddish 1 X 0.5 cm over back of right elbow region.
Opinion: After completing the postmortem examination, he gave cause of death as asphyxia as a result of ante mortem ligature hanging (via injury no. 1). all injuries were ante mortem and fresh in duration. Injury no. 1 is caused by ligature material around the neck and injury no 2 is caused by blunt force impact. Asphyxia produced is sufficient to cause death in ordinary course of nature. Time since death was around 36 to 48 hours. Clothes, viscera and blood sample of the deceased in gauze piece were also preserved and handed over in the sealed condition to the police. Detailed report no. 199/2010 Ex.Pw18/A is in my handwriting and bears his signatures at point A. He also examined the electric wire sent to him in S.C.No. 41/10 Page 22 of 59 pages 23 sealed pulanda by IO and after examining the same, he opined that injury no. 1 mentioned in the postmortem report no. 199/2010 dated 01.02.2010 is possible by the examined electric wire or similar such wire. The detailed opinion in this regard is Ex.PW18/B bearing his signature at point A which he wrote on the reverse side of the application made by IO.
22. PW19 SI Mahesh Kumar had deposed that on 21.04.2010, he was posted as drafts man at Crime Branch. On that day, at the request of Inspector Jai Bhagwan SHO PS Sarai Rohilla, he visited the place of incident ie A827, Shastri Nagar, Delhi, Knitrox Machinery works where he took rough notes and measurements of ground floor, 1st floor and 2nd floor at the instance of Praveen Sharma and Inspector Jai Bhagwan. On the basis of those rough notes and measurements, he prepared scaled site plan Ex.PW19/A bearing his signature at point A and S.C.No. 41/10 Page 23 of 59 pages 24 handed over the same to IO. He destroyed rough notes and measurements after preparation of scaled site plan.
23. PW20 SI Kulvir Singh had deposed that on 12.04.2010, he was called by Inspector Jai Bhagwan SHO PS Sarai Rohilla at about 03.00 p.m at J.J. Board, Kingsway Camp. He reached there and one Vimal Paswan, the juvenile was formally arrested and his one day PC remand was taken from the JJ Board. During interrogation, the Juvenile Vimal Paswan disclosed that accused Lakhi Chand and Sudama @ Rohan and others were also with him at the time of commission of crime. Then they went for the investigation and complainant Praveen Sharma also joined the investigation and he identified juvenile Vimal Paswan as the same boy who was his employee and working in the same factory. At the instance of juvenile Vimal Paswan, they reached at House no. 18/22, Gali no. 6, East Moti Bagh. Accused Lakhi Chand and his brother Hari Chand were found S.C.No. 41/10 Page 24 of 59 pages 25 present there. The juvenile identified accused Lakhi Chand. The accused Lakhi chand was interrogated and he made disclosure statement Ex.PW20/A bearing his signature at point A. He was arrested vide memo Ex.PW20/B bearing his signature at point A. His personal search was conducted vide memo Ex.PW20/C bearing his signature at point A. The accused Lakhi Chand Mehto got effected recovery of one wrist watch and one silver coin having impression of Lord Shiva and one purse. IO sealed the abovesaid articles in a pulanda with the seal of JB and seized vide memo Ex.PW5/L bearing his signature at point B. Then the accused led them to the house at Kishan Ganj. Accused Rajender was apprehended from house no 533, Gali no. 6, Kishan Ganj, situated at second floor. He was interrogated and he made disclosure statement EX.PW20/D bearing his signature at point A. The accused got effected recovery of one wrist watch and one silver coin having impression of Lord Shiva. IO S.C.No. 41/10 Page 25 of 59 pages 26 sealed and seized the same vide memo Ex.PW5/M bearing his signature at point B. The accused Rajender also got effected recovery of one electric wire from a corner of the slab from his house and IO sealed the same in a pulanda with the seal of JB and seized vide memo EX.PW5/N bearing his signature at point B. The accused was arrested vide memo Ex.PW20/E and his personal search was conducted vide memo Ex.PW20/F each bearing his signatures at point A. Both accused persons identified the place of occurrence.
24. PW21 W. Ct Seema had deposed that on 31.01.10, he was deputed at channel no 132 at Police control room at PHQ, ITO. On that day, at 10.16 a.m, she received information from phone number 23642531 that at "A827, Shastri Nagar near Hanuman Mandir, shop mein chori". He filled the PCR form and same was forwarded to communication cell. Same is Ex.PW21/A.
25. PW22 Ct Pradeep Sharma had deposed that on S.C.No. 41/10 Page 26 of 59 pages 27 31.01.2010, he was posted with PS Subzi Mandi as Dog Handler. On that day on the directions of SHO he alongwith Contessa Tracker Dog reached at spot i.e A827, Shastri Nagar, Hanuman Mandir. One dead body was found lying at the first floor of the building. The tracker dog tried to take up lead but could not succeed as there was no such smell
26. PW23 Ct Satyabir had deposed that on 31.01.2010 he was posted at PS Sarai Rohilla. On that day at 03.00 p.m, the duty officer handed over him copies of FIR for delivering the same in the Office of LD. MM, Joint CP,DCPNorth and accordingly, he left on official motorcycle and delivered the copies of FIR in the offices of the above mentioned respective officers.
27. PW24 Naresh Sharma had deposed that he is having his tea shop at the ground floor of his house and where he used to sell cigarettes, cold drinks and snacks. There is a factory of Om Parkash at A827 in S.C.No. 41/10 Page 27 of 59 pages 28 his neighbourhood. The workers of the factory used to take tea and other items from his shop. One Vimal Paswan was also used to work in the said factory and he was his regular customer. On 30.01.2010, at about 09.3010.00 p.m, he came to his shop from the factory and purchased one pack of Gold flake cigarettes and some snacks etc.
28. PW25 HC Gajender Singh had deposed that on 01.02.2010 he along with SHO Inspector Jai Bhagwan and HC Suresh Kumar went to Subzi Mandi Mortuary. HC Tek Ram was present there. The dead body of Madan was identified by his relatives and thereafter sent for postmortem. After the postmortem the dead body was handed over to the relatives of the deceased. The doctor handed over the sealed pullandas containing clothes of the deceased, blood sample, sample seals and sealed Viscera Peti. IO seized the same, they went back to PS and case property deposited in Malkhana.
S.C.No. 41/10 Page 28 of 59 pages 29
29. PW26 Ct Kiran Pal had deposed that on 26.05.2010, on the direction of MHCM he took six pullandas sealed with the seal of JB, three sealed pullandas with the seal of CMO Mortuary along with two sample seals, FSL Form and other documents from MHCM vide RC No. 70/21/10 and deposited the same at FSL, Rohini. He obtained a receipt from the FSL and handed over the same to MHCM. IO recorded his statement. During the tenure the above sealed pullandas remained in his possession, same was not tampered or allowed to be tampered with them.
30. PW27 HC Balraj had deposed that On 20.04.2010 he was posted at PS Sarai Rohilla. On that day on the direction of IO he took one sealed vicsra petti sealed with the seal of CMO Mortuary along with one sample seal, FSL Form and other documents from MHCM vide RC No. 48/21/10 and deposited the same at FSL, Rohini. He obtained a receipt from the FSL and handed over the same to MHCM. During the tenure S.C.No. 41/10 Page 29 of 59 pages 30 the above sealed pullanda remained in his possession same was tampered or allowed to be tampered with it.
31. PW28 Shri Umesh had deposed that deceased Madan was his relative. His native village was also near his village. Madan was working at A827, Shastri Nagar, Delhi. On 29.01.2010 deceased Madan came to him at Rajouri Garden as was planning to go to his native place within two three days. He had given him Rs.10,000/ cash (10 X 1000 currency notes) for sending the same to his village for his parents. On 31.01.2010 he came to know that Madan had been murdered. He also accompanied his relatives to his village for his last rites.
32. PW29 Inspector Jai Bhagwan had deposed that on 31.01.2010 , on receiving of DD no. 12A (Ex. PW1/A )and 14A (Ex. PW1/B) , he along with SI Raj Kumar and another staff had reached the place of occurrence i.e. A827, Shastri Nagar where HC Lekh Ram and Ct. Vikas were present there. DD no.12A was S.C.No. 41/10 Page 30 of 59 pages 31 regarding the theft and DD no.14A was regarding the dead body of guard. Parveen Sharma and Umesh and another person were also present and when he reached the spot. On the first floor in the office of owner , he found that goods were lying in scattered condition. one whisky bottle make Doctor choice was lying on the table . One raiti , scissor and broken handle and other pieces of iron were in the room as well as on the sofa which was lying in the another room. On the second floor stair case a dead body was found , which was identified as dead body of One Madan, chowkidar. He noticed the mark of violence on the neck of the dead body. Black purse was also lying there. One plastic pipe with a length of about 6.3 ft. was found there . At the ground floor, three glasses were lying at different places, one plastic plate containing the bhujia was also lying , the back side shutter of the factory was opened up to 1½ feet. Crime team , dog squad were called at the spot. On inspection in the S.C.No. 41/10 Page 31 of 59 pages 32 back side of the factory two glass were also found in the park. Thereafter statement of Parveen Sharma was recorded, same is Ex. PW5/A. Thereafter , he made endorsement Ex. PW29/A, signed by him at point A. Rukka was handed over to Ct. Vikas for registration of the case at 1.30PM. Thereafter, he prepared site plan Ex. PW29/B at the instance of Parveen Sharma , signed by him at point A . Dead body was sent to Mortury through HC Tek Ram. Thereafter, exhibits were lifted from the spot , leather purse was lifted vide seizure memo Ex. PW5/B, three glasses converted into sealed pullanda and sealed with the seal of JB , same were taken into possession vide memo Ex. PW5/C, signed by me at point A, Scissor Cutter and the raiti was converted into sealed pullanda sealed with the seal of JB and seized vide seizure memo Ex. PW5/D, signed by him at point A, two glasses lifted from the back side of the factory were also converted into sealed pullanda sealed with the seal of JB and seized vide seizure memo S.C.No. 41/10 Page 32 of 59 pages 33 Ex. PW5/C, signed by him at point A. one plate of crockery was also taken into possession, after converted into sealed pullanda sealed with the seal of JB and seized vide seizure memo Ex. PW5/E, signed by him at point A . One plastic pullanda was converted into sealed pullanda sealed with the seal of JB and seized vide seizure memo Ex. PW5/G, signed by him at point A, a empty plastic bottle of Doctor whisky after converted into sealed pullanda sealed with the seal of JB and seized vide seizure memo Ex. PW5/H, signed by him at point A. Iron pieces were lifted and after converted into sealed pullanda sealed with the seal of JB and seized vide seizure memo Ex. PW5/J, signed by him at point A. Half burnt cigarette, bidi and match stick were lifted from the spot and after converted into sealed pullanda sealed with the seal of JB and seized vide seizure memo Ex. PW5/K, signed by him at point A. Thereafter, he recorded the statement of PWs Umesh, Gurmeet , Jaswant, SI Crime Team Devender , S.C.No. 41/10 Page 33 of 59 pages 34 Ct. Virender, ASI Manish , Ct. Vikas and others. He tried to find out the clue of the culprits. On 01.02.2010, he along with the staff reached at Mortury and prepared the inquest papers Ex. PW29/C, form 25.35 (1b) is Ex. PW29/D ,and got the post mortum of the body of deceased Madan . He also recorded the statement of witnesses Ram Avtar Ex. PW4/A and Satish Ex PW11/A, bearing his signature at point A. Handing over memo of dead body is Ex. PW5/B. After the PM examination , the Autopsy Surgeon handed over the Viscera exhibits and wearing clothes and blood sample . Same were taken into possession vide separate memos, cloth of deceased was taken vide memo Ex. PW16/1, blood cloth piece and sample seal was taken into possession vide seizure memo Ex. PW29/E, viscera and sample seal was taken into possession vide seizure memo Ex. PW29/F. On 12.04.2010, Police custody remand of one day of Vimal Paswan was taken . Vimal Paswan disclosed that he had S.C.No. 41/10 Page 34 of 59 pages 35 committed murder of one chowkidar along with Lakhi Chand and Rajender and one more person and he had also disclosed that Lakhi Chand is residing at East Moti Bagh. He also disclosed that he had committed the murder along with his associates with the object to loot the cash of the factory from the locker of the owner. Parveen Sharma, complainant of this case had also joined the investigation of this case at Red Light Shastri Nagar . Thereafter, the accused Vimal Paswan led the police party at 18/122/6, East Moti Bagh where they met with the accused Lakhi Chand along with his brother . Lakhi Chand was pointed out by accused Vimal Paswan. Lakhi Chand was interrogated who confessed about his involvement in this case. Disclosure statement of Lakhi Chand is Ex. PW20/A . Personal search of Lakhi chand is Ex. PW20/C, signed by him at point X, arrest memo of accused Lakhi Chand is Ex. PW20/B, signed by him at point X. In his disclosure statement, he disclosed about the incident.
S.C.No. 41/10 Page 35 of 59 pages 36 Thereafter , accused led the police party in his room and got recovered one wrist watch and one pouch containing the silver coin on which idol of Lord Shiva was engraved. Same were converted into a sealed pullanda and sealed with the seal of JB and case property was taken into possession vide memo PW5/L signed by him at point X. Thereafter accused led the police party at 533/6, 2nd floor , Nai Basti Kishan Ganj where he had pointed out towards Rajender and Rajender was apprehended and arrested in this case vide arrest memo Ex. PW20/E, signed by him at point X. His personal search was conducted vide personal search memo Ex. PW20/F, signed by him at point X. The accused Rajender was interrogated who made disclosure statement which was reduced into writing . The disclosure statement of accused Rajender is Ex. PW20/D, signed by him at point X. Witness correctly identified both the accused persons namely Lakhi Chand and Rajender. Thereafter, accused Rajender got S.C.No. 41/10 Page 36 of 59 pages 37 recovered one ladies wrist watch and a silver coin from his room and same was converted into sealed pullanda and sealed with the seal of JB and same was taken into possession vide seizure memo Ex. PW5/M, signed by him at point X. He also got recovered the electric wire from the Taand of his roof. He disclosed that he had used the wire for the commission of offence . The wire was converted into a sealed pullanda and sealed with the seal of JB and same was taken into possession vide seizure memo Ex. PW5/M, signed by him at point X. During investigation , complainant Parveen Sharma was with him. He had identified the wrist watch and silver coins which were recovered from accused Lakhi and Rajender . Thereafter, both the accused persons led to the place of incidence and pointed out the place of incidence . He prepared the memo in this regard which is Ex. PW 29/G, signed by him at point A. . Both the accused persons were kept in muffled face . The JCL Vimal Paswan was also with them at that time and S.C.No. 41/10 Page 37 of 59 pages 38 he also pointed out the place of incidence. After reaching the P.S. the case property was deposited in the Malkhana and the accused persons were put up in the lock up. Statement of witnesses were also recorded during investigation. Thereafter, he moved an application before the concerned MM for conducting the Judicial TIP of accused persons . Carbon copy of the same is Ex. PW29/H, signed by him at point A. TIP was conducted by the Ld. MM where both the accused persons have refused to join the TIP proceedings. He moved an application for supply of the copy of proceedings, carbon copy of application is Ex. PW29/J. Carbon copy of TIP proceedings of accused Rajender is mark A and TIP proceedings of accused Lakhi Chand is mark B. During investigation, place of incident was inspected by the draftsman who took rough notes and measurements on his pointing out and PW Parveen Sharma and thereafter he developed the scaled site plan . The site plan is already Ex. PW19/A. Finger S.C.No. 41/10 Page 38 of 59 pages 39 prints of accused were also taken and were sent to FPB (Finger Print Bureao), Malviya Nagar . The FPB report is Ex. PW29/K. During investigation exhibits of this case were sent to FSL, Rohini and report in this regard is Ex. PW29/L , Ex. PW29/M and Ex. PW29/N. During investigation the wire, which was recovered at the instance of accused Rajender was produced before Autopsy Surgeon who gave his report Ex. PW18/B. During investigation , he again moved an application Ex. PW29/P to obtain final opinion . The final opinion was given by the Dr. Akash Jhanji which is Ex. PW18/C. Carbon copy of application for recording statement u/s 164 Cr.P.C. is Ex. PW29/Q. Application for supply of carbon copy of statement is Ex. PW29/S and the copy of statement of Sambodh is Ex. PW29/T and the copy of statement of Sanjay Dass is Ex. PW29/U. During investigation, he tried to apprehend co accused Sudama but he could not be apprehended at that time . He was declared as P.O. After completion of S.C.No. 41/10 Page 39 of 59 pages 40 investigation , case file was sent for judicial verdict. Witness had identified the case property one scissor Ex.P1, cutter Ex.P2, one raity Ex.P3, plastic pipe Ex.P4, one plastic plate Ex.P5, three glasses Ex.P6, one leather purse Ex.P7, two glasses Ex.P8, pieces of bidi/cigarettes and matchsticks (collectively) Ex.P9, pieces of iron Ex.P10, watch Ex.P11, coin Ex.P12, watch Ex.P14, coin Ex.P15 and electric wire Ex.P16 and one empty plastic bottle of whisky doctor's choice Ex.PX.
33. Thereafter prosecution evidence was closed.
34. The statement of the accused persons were recorded u/s 313 Cr PC, wherein, entire incriminating evidence was put forth to him. Both Accused pleaded that they have been falsely implicated in the present case. Nothing had been recovered at their instance.
35. I have heard arguments from Ld. APP Sh. Subhash Chauhan for the State & Ld Amicus Curiae Shri Javed Akhtar for both accused.
S.C.No. 41/10 Page 40 of 59 pages
41
36. Ld Addl. P. P. has argued that case of the
prosecution is based on circumstantial evidence and all the circumstances proved in evidence are sufficient to form a complete chain pointing towards guilt of the accused persons . All the witnesses have supported the case of the prosecution, hence accused persons be convicted.
37. On the other hand, Ld Amicus Curiae had argued that no public person was joined at any stage in the investigation. Even PW5 Parveen Sharma did not know the exact place of recovery of articles. It is further argued that electric wire alleged to have been used in the present case is commonly available item in the market. No direct evidence has been led by the prosecution to prove its case. In support of his arguments, Ld counsel for accused had relied upon various authorities and some of them are mentioned as under:
" 1. JCC 2013 (3) 2501 DHC S.C.No. 41/10 Page 41 of 59 pages 42
2. JCC 2013 (3) 1861 DHC
3. JCC 2013 (3) 2272 DHC
4. 2007 AD III Crl. DHC 463"
38. I have considered the arguments of Ld counsel for the parties, judgments relied upon by Ld Amicus Curiae and gone through the file.
39. In the present case, accused persons have been charged for the commission of offence of murder. There is no direct evidence of proving the offence of murder against accused persons. Prosecution case is based on circumstantial evidence. It is the case of prosecution that Vimal Paswan (Juvenile in conflict with law, herein after called as JCL in s hort) was working in the factory with the deceased and had left the job on 15.01.2010. Further, it is the case of the prosecution that he made extra judicial confession in presence of Sanjay Dass and Sambodh Paswan (both these persons were not examined by Ld Additional P.P, in this case as they were not the witnesses in respect to S.C.No. 41/10 Page 42 of 59 pages 43 the present accused persons). Statements of Sanjay Dass and Sambodh Paswan u/s 164 Cr.P.C were recorded by Ld Metropolitan Magistrate Shri Tarun Yogesh who was examined as PW17.
40. The prosecution has projected following circumstances to prove the guilt of the accused :
(i) Extra judicial confession of Vimal Paswan (JCL);
(ii) recovery of wrist watch and coins from the accused persons;
(iii) recovery of weapon of offence ie wire from accused Rajinder .
Extra judicial confession of Vimal Paswan (JCL)
41. Prosecution had examined 29 witnesses in order to prove the case against accused persons. Out of these 29 witnesses, none of the witness is eye witness or direct evidence to prove the presence of accused persons on the scene of crime. At the time of commission of offence or near to the time of commission of offence.
S.C.No. 41/10 Page 43 of 59 pages
44
42. Case of the prosecution is based around the
extra judicial confession alleged to have been made by coaccused Vimal Paswan (JCL). It is the case of the prosecution that Vimal Paswan (JCL) who was working with deceased in the same factory had left the job without informing the employer Sh Om Parkash, PW15 and on the date of incident, he had come to the factory and in the next morning he had informed Sanjay Dass that he had committed murder of Madan ie deceased. Neither Shri Sanjay Dass was examined before this court nor Sambodh Paswan was examined before this court. But their statements recorded u/s 164 Cr.P.C, by PW17 Shri Tarun Yogesh, Ld Metropolitan Magistrate is proved on record by PW17. As per statement recorded u/s 164 Cr.P.C of Samboth Paswan Ex.PW17/D it is clear that no confession was made by Vimal Paswan (JCL) directly to Sambodh Paswan and only Shri Sanjay Dass had communicated to him about the said confession being made by Vimal S.C.No. 41/10 Page 44 of 59 pages 45 Paswan (JCL) to Sanjay Dass. Hence the statement of Sambodh Paswan recorded u/s 164 Cr.P.C exhibited as Ex.PW17/D does not prove any circumstance against present accused persons.
43. Further, the statement of Shri Sanjay Dass also recorded u/s 164 Cr.P.C and exhibited as Ex.PW17/H only state is that accused Vimal Paswan (JCL) had informed him that "he had murdered someone". Even if statement is taken to be the truth and proved as per law, it lacks in material particulars as Vimal Paswan (JCL) has not stated to Sanjay Dass whose murder he had committed and further he does not state anything about the present accused persons. Therefore, it cannot be said that statements of Sanjay Dass and Sambodh Paswan Ex.PW17/H and Ex.PW17/D proves any incriminating circumstance against present accused persons.
44. Further, IO of the case Inspector Jai Bhagwan was examined as PW29 in this case. He has proved on S.C.No. 41/10 Page 45 of 59 pages 46 record the disclosure statement of Vimal Paswan (JCL) as Ex.PW29/G. It is settled principles of law that disclosure statement of one accused cannot be read against the other accused persons. Keeping in view the settled principles of law, I am of the opinion that even if the disclosure statement of Vimal Paswan (JCL) Ex.PW29/G is read and considered as a whole, it does not give any proof against present accused persons for the commission of offence. Though the disclosure statement Ex.PW23/G mentions the name of two persons alleged to be partners in commission of offence but none of the names given by Vimal Paswan (JCL) is the name of present accused persons. Vimal Paswan (JCL) had stated that he had committed the offence along with Lucky, Sudama and one other boy whose name he has not mentioned. As per the facts of the present case neither Lucky nor Sudama is accused in the present case. In the present case, name of accused persons are Lakhi Chand and Rajinder Kumar S.C.No. 41/10 Page 46 of 59 pages 47 and their names have not been mentioned in the document Ex.PW29/G.
45. It is also in evidence of PW17 Shri Tarun Yogesh that IO moved the application of TIP of accused Lakhi Chand and accused Rajinder Kumar and accused persons refused to take part in TIP proceedings. On this point, I am constrained to think what was the necessity of conducting the TIP of accused Lakhi Chand and Rajinder, when admittedly there is no eye witness of the case and it is not the case of the prosecution that there was a person who had witnessed the accused persons near or at the scene of crime on the date of incident. When only evidence available against the accused persons was the disclosure statement of Vimal Paswan (JCL) and out of 29 prosecution witnesses examined, none of them had stated that they have seen the accused persons at or near the scene of crime on the date of occurrence , what was the purpose of conducting the TIP has not S.C.No. 41/10 Page 47 of 59 pages 48 been explained by the prosecution. From the cross examination of PW29 Inspector Jai Bhagwan who was IO of this case, it is clear that for the TIP to be conducted, witness was 'Jaswant Rai'. Shri Jaswant Rai has been examined as PW10 and he has deposed that he had left the factory on 30.01.2010 at 9.15 p.m. This witness has no where stated that he had seen any person entering the factory or talking with the deceased in the night either before his leaving the factory or during the process of his leaving the factory. Hence, the purpose and intention of IO in getting TIP of the accused persons done is not clear. PW10 does not say that he can identify the accused persons. The only purpose of IO, in conducting the TIP appears to create evidence against accused persons of refusing the TIP.
46. Hence, I am of the opinion that prosecution has not been able to prove this circumstance against present accused persons.
S.C.No. 41/10 Page 48 of 59 pages 49
47. Recovery of wrist watch and coins
48. It is the case of the prosecution that PW15 Om Parkash, who was the employer of deceased Madan, had deposed that three watches, silver and metal coins were missing from the factory and one wrist watch and one coin each was recovered from the possession of accused persons which they themselves have got recovered from their house.
49. It is the testimony of PW29 Inspector Jai Bhagwan, IO of the case that on 12.04.2010 he had taken the police remand of coaccused Vimal Paswan (JCL) who had taken the police with him to the house of accused Lakhi Chand, where on the pointing out of Lakhi Chand, one wrist watch and one pouch containing idol of Lord Shiva engraved on the coin was recovered, seizure memo of the same is Ex.PW5/L. This seizure memo bears the signatures of Praveen Sharma as public witness. PW5 Parveen Sharma in his examination in chief, had stated that in the month of S.C.No. 41/10 Page 49 of 59 pages 50 April, 2010, police had brought accused Lakhi Chand , Rajinder and Vimal Paswan (JCL) to the factory and they have stated therein how they have committed the offence. This fact is not explained or narrated by the IO, rather PW29 Inspector Jai Bhagwan had stated that on 12.04.2010 Vimal Paswan (JCL) led the police party to the house of accused Lakhi Chand and from the house of Lakhi Chand, recovery of one watch and silver coin was effected. Thereafter they went to the house of accused Rajinder. As per testimony of PW29 accused persons in the present case were firstly interrogated, then recovery was effected from them and later on accused persons were taken to the scene of crime, where as PW5 has given the reverse sequence of events.
50. Further, it is the case of PW29 that accused Rajinder got recovered one ladies wrist watch and silver coin from his room which was taken into possession vide memo Ex.PW5/M. Ex.PW5/M also S.C.No. 41/10 Page 50 of 59 pages 51 bears the signature of Praveen Sharma as a witness, though PW5 Praveen Sharma had specifically stated that he had not gone to the house of accused Rajinder as due to his leg problem , he had not climbed the stairs. This shows that no recovery was effected from the house of accused Rajinder in presence of PW5 and he has only put his signature on document Ex.PW5/M at the instance of the IO. This raises serious doubt about the authenticity of the document and correctness of recovery of articles from accused Rajinder. It is further strange to note that PW5 had identified watch Ex.P14, coin Ex.P15 and electric wire Ex.P16 alleged to have been recovered from the house of accused Rajinder, although, same was never recovered in his presence as is stated by him in his evidence. Therefore, recovery of articles from accused Rajinder has been falsified by the testimony of PW5. Even otherwise, there is no allegation of prosecution that Vimal Paswan (JCL) was having friendly terms S.C.No. 41/10 Page 51 of 59 pages 52 with accused Rajinder and Lakhi Chand or these two persons were having family relations with deceased Madan. It is admitted case of prosecution that brother of accused Lakhi Chand was present, at the time of alleged recovery and execution of seizure Memo Ex.PW5/L , but his signatures are not obtained on the said documents. Failure to get the seizure memo signed by the brother of accused, though he was present, casts doubt on the correctness of document and factum of recovery.
51. My view also gets support from the judgment titled as State vs Azad Khan2013 (4) JCC 2501 wherein Hon'ble High Court has held that:
" No sincere efforts were made by the IO of the case to join any independent public person either at the time of recovery or as an attesting witness to the disclosure statement in the absence of any such efforts, the recovery made at the instance of accused became doubtful".
S.C.No. 41/10 Page 52 of 59 pages 53
52. In view of above discussion, I am of the opinion that prosecution has not been able to prove the recovery of articles from accused persons. It is very important to note at this stage that PW15 Shri Om parkash, who was owner of the factory and who had stated that his watches and coins were missing had not identified the case property in the present case. In the absence of case property being examined and identified by the owner of the property, recovery becomes doubtful and cannot be read against accused persons. Further, it is very strange that owner Shri Om Parkash had not joined the investigation but his employees Praveen Sharma and Jaswant Rai had joined. No explanation had been tendered by the IO in this respect.
Recovery of weapon of offence ie electric wire
53. It is further the case of the prosecution that one electric wire was recovered from the possession of accused Rajinder, vide seizure memo Ex.PW5/N , S.C.No. 41/10 Page 53 of 59 pages 54 bearing the signatures of Praveen Sharma PW5 as a witness to the recovery of wire. It is also the case of the prosecution that PW18 Dr Akash Jhanjee had given the opinion that injury no. 1 mentioned in post mortem report no 199/2010 is possible by examined electric wire or similar such wire. The detailed opinion in this regard is Ex.PW18/B. Considering the document Ex.PW18/B and seizure memo Ex.PW5/N together, it is clear that it cannot be said by prosecution beyond reasonable doubt that this wire alleged to have been recovered from accused Rajinder was the wire with which the injury was caused to deceased and the same had resulted in his death. Admittedly, wire seized vide memo Ex.PW5/N is commonly available electric wire. Various important questions arise in respect to the recovery of wire from the house of accused Rajinder. It is not the case of the prosecution that accused persons have gone to the factory with the intention to kill the deceased Madan. The only case of S.C.No. 41/10 Page 54 of 59 pages 55 the prosecution is that accused persons have gone together to the factory on invitation of Madan as he was going back to his village for engagement. If the person is invited for celebration, he will not go with the intention to commit offence or with the preparation to commit the offence. Therefore, it can safely be presumed that accused Rajinder would not have gone to the factory with the wire to commit the offence of murder and thus, if the offence was committed by accused persons they would have used the articles easily available at the spot ie the scissor , Raiti etc. But as per prosecution these articles were not used in commission of offence. It is also not the case of the prosecution that the electric wire available in factory was used for strangulating the deceased. Further, prosecution has been unable to explain and prove , why did accused will bring back the wire from the scene of crime to his house and secondly why they will keep such wire in their house for a period of three S.C.No. 41/10 Page 55 of 59 pages 56 months or more. It is general behavior of the persons, having criminal intention, to get rid of incriminating substance as early as possible. If the accused would have caused death of deceased with the help of wire by strangulating, he will not bring back the said wire to his house rather he would leave the wire in a panic there and not preserve the said wire to be recovered and discovered by the police later on from his house. Thus, I am of the opinion that testimony of PW5 appears to be unreliable in respect to the recovery of wire from the house of accused Rajinder, as considering the behavior of criminals it is highly improbable that accused persons will keep weapon of offence in safe custody. Even otherwise, electric wire is commonly available in market, & also usually found in every house.
54. In view of my above discussion, I am of the opinion that none of the circumstance have been proved by the prosecution against accused persons, S.C.No. 41/10 Page 56 of 59 pages 57 only evidence against accused persons is the disclosure statement of accused Vimal Paswan (JCL) and the recovery of articles. Recovery of articles have not been proved as discussed above, items have not been identified as PW15 Om Parkash, owners of the articles have not seen and identified those articles, even in the court. Therefore, it cannot be said that articles alleged to have been recovered from the house of accused persons were the articles stolen or missing from the factory or they were the articles which belonged to PW15 Om Parkash. The disclosure statement of accused Vimal Paswan (JCL) cannot be read against accused persons and even otherwise, it does not state anything against accused persons as accused persons have not been named in the disclosure statement .
55. In the judgment titled as Rukia Begum and others vs State of Karnataka (2011) 4 SUPREME COURT CASES 779 , it was held by the Hon'ble Supreme Court that :
S.C.No. 41/10 Page 57 of 59 pages 58 "No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case, based on circumstanteal evidence the circumstance from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner".
56. Applying these principles to present case, I am of the opinion that prosecution has not been able to prove the complete chain of events, prosecution has failed to prove the case against the accused persons beond reasonable doubt and benefit of doubts be given to the accused persons. Hence accused persons are S.C.No. 41/10 Page 58 of 59 pages 59 acquitted for the offence punishable under Sec. 302 IPC.
ANNOUNCED IN THE OPEN COURT ON . 25.01.2014 (SHAIL JAIN) SPECIAL JUDGE: NDPS02 CENTRAL, DELHI S.C.No. 41/10 Page 59 of 59 pages