State vs Ajit Singh Chauhan on 29 August, 2012

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Delhi District Court

State vs Ajit Singh Chauhan on 29 August, 2012

      IN THE COURT OF SH.SURESH CHAND RAJAN
   ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
             DWARKA COURTS, NEW DELHI


SC No.14/1/11
FIR No.249/99
U/s 302/34 IPC
PS Delhi Cantt.

State 

Vs.

Ajit Singh Chauhan s/o Chani Nath Singh
R/o RZE 757, Gali NO.3,
Raj Nagar, Palam Colony
Delhi
                                                                        ............. Accused

Supplementary Challan filed on : 03.07.03
Received by Sessions Court on:07.07.03
Reserved for Order on : 07.08.2012
Date of Pronouncement :  29.08.2012

JUDGMENT

The conspectus in Brief of the prosecution case are that 31.05.99 at about 10.35 a.m DD 12A was recorded in PS Delhi Cantt State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 1 of 68 in which it was informed that a dead body is lying in vacant place in Panchvati Quarters, Palam Railway Phatak. The copy of the said DD was handed over to SI Ramnivas. Insp. Anand Prakash was also informed and they both went to the spot where near wall in the bushes of keekar in a small ditch one dead body of a boy aged about 1314 years were found. The dead body was having wounds seems to have caused with sharp edged weapon. The identification of the dead body was got done by Somvir s/o Shivdhan, maternal uncle of deceased who told the name of deceased as Jitender @ Jeetu s/o Bani Ram r/o H.212, Gali no.9 RajnagarII, Palam Colony. On enquiry the deceased was found to have been missing since 30.5.99 from 8.30 p.m. No eye witness was found at the spot. On the basis of DD, case u/s 302 IPC was registered. The investigation was done. Crime team and photographer was summoned who prepared the report and took photographs. Site plan was prepared. The exhibits i.e. earth control, blood stained soil, blood stained cloth lying near the spot as well as hawai chappal were taken into possession. Post mortem on the dead body was got conducted. During investigation it was revealed by Somvir that Jitender @ Jitu was lastly seen in the night of 30.5.99 with his friends Anil, Ajit and Kailash who had gone to the house of deceased for electric fitting. The statements of Somvir and his wife State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 2 of 68 Ritu were recorded. They were interrogated and after finding evidence against the accused persons, they were arrested. The disclosure statements of accused Ajit and Anil were recorded which are Ex.PW11/B&D. All the incriminating articles were taken into possession and after completion of investigation challan was filed.

2. On perusal of the record it is revealed that accused Kailash was tried by the court of Sh. H.S.Sharma,the then Ld. ASJ and he was convicted vide judgment dated 11.07.2003. The present accused Ajit Singh Chauhan was facing trial before juvenile court but on 11.07.03 he was sent back to the court of sessions since Juvenile Court has concluded that the accused was not a juvenile on the date of commission of the offence.

3. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 07.07.03.

4. The charge against accused Ajit Singh Chauhan was framed by Sh. Narottam Kaushal, the then Ld. ASJ u/s 302/34 IPC and State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 3 of 68 25/27 Arms Act on 13.05.2004 to which the accused pleaded not guilty and claimed trial.

5. The prosecution in all has examined as many as 23 witnesses.

6. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he is innocent and has been falsely implicated. The deceased Jitender @ Jeetu was his school mate and he was on visiting terms to his house. He also used to visit his house. He does not know any person namely Anil and Kailash. Accused opted to lead defence evidence but later did not examine any witness. Thereafter the case was fixed for final arguments.

7. I have heard the Ld.counsel for the accused at too length as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.

8. In view of the arguments advanced by the Ld.APP and Ld.Counsel on behalf of the accused, I have perused the testimonies State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 4 of 68 of all the PWS.

9. PW1 Smt. Pratima has deposed has she knew Jeetu who used to reside in their neighbourhood. She does not know the accused present in the court. She does not know Anil and Ajit. She had never seen Jeetu in the company of Anil, Ajit and Kailash. She did not see them on 30.5.99 at 8.15 p.m She was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein she has stated that Jeetu is no more alive. She does not know as to whether he died natural death or had been murdered. Police had not interrogated her in connection with the murder of Jeetu. She did not make the statement before the police that on 10.5.99 at about 8.15 p.m she had seen Anil, Ajit and Kailash on the road of the house of Jeetu.

10. PW2 W/ASI Geeta Rani is the FIR recorder and she has deposed that she recorded FIR no.249/99 u/s 302 IPC on the basis of rukka sent by Insp.Anand Sagar through Ct. Pramod Kkumar. The copy of FIR is Ex.PW2/A.

11. PW3 Ritu has deposed that on 29.5.99 she was residing in house no. 212 Palam Colony, Raj Nagar with her family and her sister State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 5 of 68 in law and her son Jitender @ Jitu aged about 14/15 years at that time. Three boys had come to call him. She has further deposed that some electricity work was to be done in a newly constructed room and Anil was an electrician. The electricity work fitting was assigned to Anil on behalf of his mother Godawari Devi. She was their maid servant. On 29.05.99 all the three persons Anil, Ajit and Kailash had called Jitender from their house at about 8 p.m but Jitender did not return at house and they made search through out the night. On next day i.e. on 30.5.99 dead body was recovered by the police in the area of Panchwati. Her husband was not present on the day of incident. She does not know whether Anil had given threatening to her husband while her husband had given 45 slaps to Anil while he was in intoxication condition and abused her husband at that time. Accused Ajit is not present in the court at present. She was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein she has denied the suggestion of Ld. APP that she has stated in her statement that she is sure that accused persons namely Anil, Ajit & Kailash had committed murder of Jitu@Jitender or that about two months ago in the evening in DDA Park, accused Anil abused to her husband on which her husband had slapped Anil and he had given threatening to see him to take the revenge. She denied the suggestion State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 6 of 68 that she is deposing falsely to save the accused or that she has been won over by the accused Ajit present in the court.

12. PW4 HC Anoop Singh has deposed that on 20.7.99 on the direction of Insp. Anand Sagar he collected the exhibits and Post Mortem Report from Safdarjung Hospital and haded over the same to ASI Anita, Duty Officer who seized the same vide memo Ex.PW5/I.

13. PW5 ASI Anita Rani has deposed that on 20.7.99 she was working as Duty Officer when Ct. Anup Singh brought exhibits which she seized vide seizure memo Ex.PW5/I.

14. PW6 Tara Chand has deposed that on 31.5.99 he identified the dead body of Jitender Malik vide statement Ex.PW6/A.

15. PW7 SI Madan Pal is the draftsman who visited the place of occurrence on 11.8.99 alongwith Inspector Anand Sagar and Somvir Singh and took rough notes and thereafter prepared the scaled site plan which is Ex.PW7/1.

16. PW8 HC Shayar Singh has deposed that on 31.05.99 he State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 7 of 68 alongwith Insp.Anand Sagar and Ct. Jagpal went to Panchvati Colony where near the wall one dead body of child aged about 1314 years was found lying in a ditch. There were wounds on stomach, arms and back. After completing the formalities, dead body was removed to Safdarjung Hospital. Next day the post mortem was conducted. After post mortem the dead body was handed over to the relatives.

17. PW9 SI Ram Nivas has deposed that on 31.05.99 on receipt of DD no.12A, he alongwith Ct. Jaipal went to Panchvati near Railway Line where they saw dead body of one boy aged about 1415 years. He was wearing badami pant and purple colour Tshirt. After some time Ct. Pramod, Addl. SO Insp. Anand Sagar also reached the spot.After some time one Somveer came to the spot and he identified the dead body as of his nephew (Bhanja) named Jitu. Rukka was prepared by SHO and case was got registered through Ct. Pramod. Exhibits were lifted from the spot and same were seized vide memo Ex.PW2/4. Chappal and a blood stained cloth lying at a short distance were also seized and taken into possession vide seizure memo Ex.PW2/2 and Ex.PW2/3. Prior to seizure the spot was got photographed through crime team. The dead body was sent to mortuary for post mortem. Mahesh Kumar has prepared the scaled State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 8 of 68 site plan Ex.PW9/A. He has further deposed that recovered sleeper was of blue colour and Tshirt was of pink and pant was of badami colour. MHCM produced the case property in UNSEALED carton box and even the parcel was also UNSEALED. The TShirt and pant are Ex.P1 and Ex.P2 and pair of sleeper is Ex.P3. The earth control were produced in sealed condition and witness identified the same as Ex.P4 and piece of cloth as Ex.P5. In cross examination he has stated that it is correct that the colour of the Tshirt when opened was found mehroon and colour of pant was found as brown. It is colour that colour of chappal on opening was found pink and light yellow. He admitted that after opening the pullanda there were three sample of the soils and on opening the pullanda a torn blood stained cloth was found which he identified as handkerchief. He admitted that the area where the dead boy was found family quarters of Air force personnels and Central Auditors Family quarters are located. He left the PS at about 10.40 a.m. He and Ct. Jaipall gone to the place of occurrence on their private motorcycle and SHO and Ct. Pramod have gone on service motorcycle. They had reached to the place where the dead body was lying after enquiring from the public persons who were working there. In his presence, IO had not recorded the statement of above said public State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 9 of 68 persons nor noted down their addresses.Photographer reached at about 12/12.15 p.m and IO prepared the tehrir at about 1 p.m.Ct. Pramod returned from PS at about 2.30 p.m. Ct. Pramod picked up the chappals from the ground and handed over to IO. IO had not made any public person to join the investigation. One Somvir met them at the place where the dead body was lying and he was alone.

18. PW10 Ct.Pramod Kumar has deposed that on 31.5.99 he alongwith SHO reached at Panchvati Quarter where SI Ram Nivas and Ct. Jai Pal were present and one dead body of a boy was lying in ditch. A mehroon Tshirt and a saleti colour pant was worn by that boy. There were wound marks on the stomach, arms and neck. On the inner waist side there was label on the pant of "New Bombay Tailor" and it appeared that he was resident of nearby area. The residents were asked to identify the boy and one Somvir informed that the dead body was of his nephew. SHO prepared rukka and handed over the same to him for registration of the case and he went to PS and got the case registered. In cross examination he has admitted that before deposing in court, he took the police file outside the court room. He did not take the permission of the Hon'ble Court for taking the file outside the court State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 10 of 68 room. He took the file to reach his statement. He made improvement by stating that he alongwith Addl.SHO reached at Panchwati Quarters where SI Ramnias and Ct. Jaipal were already present there. . He reached Panchwati on Govt. motorcycle at 10.50 a.m. He cannot tell the dimensions of the ditch where the dead body was lying. The ditch was not freshly ducked. The place of occurrence is not a residential area. The Palam colony is just across the railway crossing. He does not know whether IO issued notice to public persons who refused to join the investigation. Somvir did not come with them to the place of occurrence. He did not meet Somvir in Palam. The statement of Somvir was recorded at the place of occurrence. He does not remember whether anyone accompanied Somvir.

19. PW11 HC Ram Nivas has deposed that on 01.06.99 he alongwith Insp. Anand Sagar, Ct. Ashok, Ct. Pramod and Ct. Nissan were present in investigation and they reached Raj Nagar where secret informer informed the Addl. SHO that the boy standing in front was Ajeet Chauhan. He was caught hold and questioned and he disclosed his involvement in the murder of Jeetu in collusion with Anil and Kailash. Accused was arrested vide memo Ex.PW11/A and his personal search was conducted. His disclosure statement was recorded State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 11 of 68 which is Ex.PW1/B. He has further deposed that accused Ajit had given the clue about accused Anil. Thereafter he alongwith police team went to near IGI Airport Arrival Canteen where accused Anil was present and he was arrested at the instance of accused Ajit and his personal search was conducted vide memo Ex.PW11/C. Disclosure statement of Anil is Ex.PW11/D. He has further deposed that accused Anil led them to Palam railway station from where accused Kailash was arrested and his personal search was conducted vide memo Ex.PW11/E. His disclosure statement was also recorded which is Ex.PW11/F. Accused Kailash disclosed that he can get recovered the knife used in the crime. Thereafter accused Kailash led the police party to Mahavir Enclave, Gali no.9 and got recovered a knife from a house number of which he does not recollect from iron almirah. Accused Kailash also got recovered pant and shirt worn by him at the time of incident from the same almirah. The knife was having blood stains. The sketch of the knife is Ex.PW11/G and it was seized vide seizure memo Ex.PW17/D. The clothes were seized vide seizure memo Ex.PW17/C. He has further deposed that accused Anil led to house at gali no.1 Raj Nagar II, and got recovered his pant and shirt worn by him at the time of incident and the same were taken into possession vide memo Ex.PW17/E. He has further deposed that State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 12 of 68 thereafter accused Ajit led them to his house i.e. Gali no.1, Raj Nagar II, Palam Colony and got recovered one Tshirt and pant worn by him at the time of incident from the store of his house which were sealed with the seal of AS and taken into possession vide memo Ex.PW17/B. Seal after used was handed over to him. He has further deposed that on 02.06.99 all the accused led the police party to the place of occurrence and pointed out the same vide memo Ex.PW11/H, J & K. At the spot Somvir was also present. He identified the knife as Ex.P4 and Tshirt of black and grey colour check with label of Fizzaro and one pant of dark grey colour with light strips as Ex.PW11/PX. In cross examination he has stated that he left the PS on 1.6.99 at 12.15 p.m. The accused was arrested from Gali no.2 Raj Nagar at about 3.50 p.m . He admitted that there are houses on both sides of gali no.2 and persons were passing through there. AT the time of recording the disclosure statement of accused Somvir arrived there. Somvir arrived at 4.20 p.m. They reached at the house of Anil at 4.30 p.m after arrest of Ajit Singh. Thereafter they went to IGI Airport at reached at 5.15 p.m. He cannot tell the registration number of vehicle and name of driver. They reached PS at about 10.15/10.30 p.m.He never visited the house of Somveer alongwith IO. The place where the dead body was State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 13 of 68 lying is a land belonging to defence. There are jhuggies of labour working employed in construction work in panchwati and those jhuggies are at the distance of 200250 yards from the place of occurrence. On 2.6.99 Somvir met him at railway phatak at about 9.30/9.45 p.m. The clothes of accused Ajit were got recovered at 9.30 p.m on 01.06.99. He admitted that the house of Ajit is located in densely populated area. He along with IO and Ct. Pramod, Ct. Nishan, Ct. Ashok and public witness Somvir entered into the house of accused Ajit Singh to get recover the pant and Tshirt. He cannot say whether IO had asked any public person from the nearby houses of accused Ajit Singh to be the witness of recovery of pant and Tshirt. He denied the suggestion that the clothes of accused Ajit were not recovered from his house and in his presence.

20. PW12 ASI Arjun Pandit has deposed that on 21.7.99 he was handed over 11 pullandas sealed with the seal of AS for depositing at CFSL. He went there and deposited the same.

21. PW13 ASI Satyabir Singh has deposed that on 31.5.99 he was posted as MHCM and he made entries in register of malkhana at sr.no.1226, 1228 and 1300 Ex.PW13/A,B and C regarding depositing State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 14 of 68 of case property. He has further deposed that on 21.7.99 the case property was sent to CFSL. He also made entry no.1226 Ex.PW13/E regarding depositing the report of CFSL.

22. PW14 HC Jagpal Singh has deposed that on 31.05.99 he alongwith Ct. Sayar Singh took the body to Safdarjung hospital from the spot.

23. PW15 Ct.Sunita has deposed that on 31.5.99 she received a call from an unknown person who informed that one dead body is lying in the open place near Panchvati quarters. It was filled in PCR form Ex.PW15/A. After filling the form, the information was passed to the concerned police station. In cross examination she has stated that it is correct that in her today's statement before the court she did not mention the phone number from which the information was given to her. She admitted that the location of the caller can be traced through control room system from the number which displays on the system. She cannot say whether IO tried to trace the address of the caller. She cannot tell whether the caller was frightened or normal. State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 15 of 68

24. PW16 Ct. Pankaj has deposed that on 31.5.99 he delivered the copies of FIR to Ld. Magistrate, DCP, Adll DCP, Addl. CP and ACP.

25. PW17 Somvir has deposed that on 30.5.99 at about 8 p.m Anil, Ajit and Kailash came to his home for repairing electric equipments. Mother of accused Anil used to work in his home as maid servant. He had gone to market. When he came back he saw Ajit, Anil and Kailash alongwith his nephew Jeetu @ Jitender Malik going towards railway line. AT about 9 p.m they traced his nephew but he could not be traced. He went to the house of Anil who told him that he had sent Jeetu back after sometime. He went to PS for lodging missing report but police officer told him to wait. On 31.5.99 police officer told him that one dead body was found lying on railway track near Panchwati. He went there and found it to be of his nephew Jeetu. Police officers took photographs and chappal and handkerchief of his nephew was taken in possession vide memo Ex.PW17/A. He was taken to the house of Anil by the Police but Anil was not there. He has further deposed that on the same day in the night he alongwith police went to the house of accused Ajit and blood stained clothes i.e. pant and Tshirt of Ajit were taken into possession vide memo Ex.PW17/B. State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 16 of 68 Accused was apprehended. He has further deposed that accused Kailash was apprehended from Palam Railway Station who got recovered one knife and clothes which were taken into possession vide memo Ex.PW17/C. He has further deposed that accused Anil was apprehended from Arrival canteen of Airport and he also got recovered his blood stained clothes which were seized vide memo Ex.PW17/E. On 1.6.99 the dead body was handed over to them. He identified the case property Ex.P1, P2, P3 and P6 knife Ex.P4, chappal Ex.P5. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has admitted that one month prior to the incident Anil was wandering in DDA Park after drinking and he had slapped him for same and he threatened him by saying iska mai badla le kar dikha dunga'. The site plan was prepared by the police and earth control were taken vide memo Ex.PW17/F. One piece of cloth of mehroon colour was also taken into possession. He admitted that on 1.6.99 at about 4 p.m the Addl.SHO Anand Sagar alongwith the police officers met him near gali no.2, Raj NagarII, Palam Colony and at that time accused Ajeet was in the custody of police officials. He admitted about disclosure statement made by the accused as well as pointing out of the house of accused Ajeet and State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 17 of 68 recovery of clothes from plastic basket from a store of his house. He further admitted about pointing out of the place of incident by accused. He admitted that site plan was prepared at his instance . He identified accused Ajeet. In cross examination he has stated that at the time of murder of Jeetu he was residing in H.No.S212 Raj Nagar II Gali no.9 Palam Colony and now he is residing in Najafgarh. The aforesaid house located in Raj NagarII was in the name of his sister. The father of deceased Jeetu died in the year 1987. Jeetu was having two sisters and no brother. Younger sister of Jeetu during stay with them went missing. He admitted that younger sister of Jeetu went missing before the death of Jeetu. He was working as transporter. He denied the suggestion that he left the house one day prior to the death of deceased Jeetu. He admitted that the mother of deceased Jeetu was not made a prosecution witness. He denied the suggestion that his ill eyes were on the property which was in the name of deceased Jeetu and for the said reason he went missing from his house one day prior to the death of deceased Jeetu and thereafter he got the deceased Jeetu murdered. He has further stated that he had stated to the police office in his statement that on 30.5.99 at about 8 p.m, Ajeet, Anil and Kailash came to his house for repairing electrical equipments. He was State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 18 of 68 confronted with his statement Ex.PW17/DA where it is not recorded. He had stated in his statement dated 31.5.99 that at about 8 pm he had gone to market and when he came back he saw Ajit, Anil and Kailash alongwith his nephew Jeetu had gone towards railway line. He was confronted with his statement in this respect (however, it was recorded that he saw his nephew Jeetu going towards railway line alongwith Ajeet, Kailash and Anil). He admitted that he had not stated to the police in his statement that at about 9 p.m, when they traced his nephew Jeetu but he could not be traced. He made improvement regarding stating to the police that he had gone to the house of Anil to enquire about Jeetu and Anil told him that he had sent Jeetu back after sometime. He also made improvement that he had stated to the police to lodge a missing report about Jeetu and police asked to wait for a while. He was confronted with his statement regarding recovery of handkerchief of his nephew Jeetu. He was further confronted with his statement regarding recovery of clothes from the house of accused Ajit as the same has not been mentioned. He had not given any written complaint to the police station regarding missing of deceased Jeetu. He admitted that mother of deceased Jeetu also had not given any written complaint to the police. No punchnama of dead body was prepared. His first statement was recorded on 31.5.99. He cannot say State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 19 of 68 what job accused Ajit was doing during that period. The house where he is residing is in his name, purchased in the year 2006. The house situated in Raj NagarII was sold in the year 2000. He denied that he sold the house no.H212 which was in the name of mother of deceased Jeetu and with that amount he had purchased the house situated in Najafgarh where he is residing. He admitted that the house where he was residing in Raja Nagar was situated in thickly populated area. He admitted that house of Ajeet is situated in a thickly populated area. At the time of recovery of blood stained clothes from the house of accused Ajeet there were about ten to fifteen public persons gathered over there. No statement of those persons was recorded. He was operating his business from his office situated at Bakauli. He used to remain with the vehicle upto its destination. Whenever the contract was given for transportation of goods, he used to remain with truck for about 1015 days continuously. AT the time of incident, he remained at his home at Palam Colony for 34 months and did not go for transportation. He left his home for market at about 7.30 p.m on foot for purchasing medicine and within 3040 minutes he came back to his home. He denied that there is no chemist shop at Dadadev Market. He went to PS in car of Tarachand, his relative. He denied that he signed certain blank papers in the PS on the instructions of IO. He State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 20 of 68 cannot say when Ex.PW17/B was prepared by IO.

26. PW18 Dr. Manish Kumath has appeared for Dr. Chandrakant.

27. PW19 HC Hansraj has deposed that on 31.5.99 he reached at the spot where on the direction of SI Ram Nivas he took 12 photographs. The positives are Ex.PW19/P1 to P12 and negatives are Ex.P13 to P24.

28. PW20 Dr.G.D.Gupta is the witness from CFSL and he examined the case property of this case and after examination prepared his report which is Ex.PW20/A.

29. PW21 Insp. Ranjay Atrishya has deposed that he was posted as Crime Team Incharge on 31.5.99 and he visited the spot.. After inspection, he prepared the report which is Ex.PW8/1.

30. PW22 Insp. Anand Sagar is the IO of this case and he has deposed that on receipt of DD no.12A Ex.PW12/1 he reached at the spot alongwith his staff where a dead body of a boy was found having State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 21 of 68 stab wounds on his chest, neck and waist. The dead body was identified by Somvir. He did not find any eye witness at the spot. He made endorsement Ex.PW19/1 on DD no.12A Ex.PW12/1 and got the case registered. Crime team reached at the spot and took photographs. He prepared the site plan Ex.PW19/2. He lifted the blood stained earth sleeper and one piece of cloth and seized the same vide memo ex.PW2/4, Ex.PW17/A and Ex.PW22/A respectively. He conducted the inquest proceedings. He got conducted the post mortem on 1.6.99 He has further deposed that accused Ajit was arrested on the basis of secret information from outside his house vide memo Ex.PW22/B and his personal search was conducted vide memo ex.PW11/A. His disclosure statement Ex.PW11/B was recorded. He further deposed about arrest of accused Anil from IGI Airport vide memo Ex.PW22/C. The disclosure statement of Anil is Ex.PW11/D. Thereafter accused Kailash was arrested and he got recovered knife from the bottom shelf of almirah which was wrapped in a small piece of newspaper and kept in a blue polythene. The sketch of knife was prepared. Accused Kailash also got recovered his clothes worn at the time of incident. He has further deposed that accused Anil and Ajit also got recovered the clothes worn by them at the time of incident. On 02.06.99 the accused persons pointed out the spot vide memo Ex.PW2/9, Ex.PW11/K and State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 22 of 68 Ex.PW11/J. He collected the post mortem report he got the scaled site plan made He collected the CFSL result. In cross examination he has stated that the area where the dead body was lying in a pit, was kacha area. No footprints or shoe prints were available near the place from where the dead body was recovered. He denied the suggestion that being kacha area, the footprints or shoe prints were available, but he did not lift them intentionally. At the spot of dead body, no hair or pieces of clothes torn during the fight were found lying. He denied that hair and cloth pieces were found lying at the spot but they were not lifted intentionally. The clothes of the police officials were not blood stained in removing the dead body from the pit to the vehicle. He did not know Somvir. He admitted that in his examination in chief he testified only about the arrival of Somvir at the spot Vol. Tara Chand reached later on. He admitted that the dead body was lying on the defence land. He visited the house of deceased and met mother of deceased and wife of Somvir. He had conducted enquiry as to whether any missing report of the deceased was lodged with PS but no such report was found lodged. The finger prints were not visible on the weapon of offence which was found wrapped in a piece of newspapers and was further kept in a blue colour polythene. He had not taken the State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 23 of 68 assistance of finger prints expert to find out if there were any finger prints on the weapon of offence. He had seized the newspaper and blue colour polythene. He admitted that he has not cited any of the official witnesses to the arrest memo despite the fact that they were present there. He admitted that the house of Ajit was situated in densely populated area. He admitted that no neighbour was cited as a witness to the seizure of clothes.

31. PW23 Dr. Chander Kant has deposed that he conducted the post mortem on the dead body of Jitender Malik @ Jeetu. The post mortem report is Ex.PW23/A.

32. In the overall analysis of the testimonies of all the witnesses it is revealed that this case was registered on the basis of DD no. 12A which is Ex.PW12/1. Operator G53 had given this information at Police Station Delhi Cantt. Copy of the said Police Control Room form is Ex.PW3/1 wherein it has been informed that one dead body is lying in a vacant place towards Panchwati quarters near Palam Railway Phatak. Public witnesses are PW1 Pratima, PW2 Ritu and PW17 Somvir are the alleged witnesses of last seen in this case. From the testimonies of all the witnesses adduced by the prosecution in this State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 24 of 68 case, it is revealed that they have not seen the incident of present case. In this case no one had seen the accused committing the crime. So, this case depends on circumstantial evidence.

33. It is settled law that in case of circumstantial evidence the circumstances from which the conclusion is to be drawn are not only to be fully established but also that all the circumstances so established should be of conclusive nature and consistent only with the hypothesis of guilty of the accused. Those circumstances should not be capable of being explained by any other hypothesis excepting the guilt of the accused and the chain of evidence must be so complete so as not to leave any reasonable ground for being consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not mere indignation of the court can form the basis of conviction and the more serious the crime the greater should be the care taken to scrutinize evidence least suspicion takes the place of proof. It has been observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujrat 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 25 of 68 unconsciously it may happen to be a short step between moral certainty and legal proof it has been indicated by the court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded.

34. In Sharad Birdichand Sarda Vs. State of Maharashra, AIR 1984 S.C 1622, the law relating to circumstantial evidence has been discussed as under : 'A closed analysis of these decisions would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the guilt is to be drawn should be fully established.

State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 26 of 68 It may be noted here that this court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this court in 'Shivaji Sahabrao Bobade and Anr. Vs. State of Maharashtra' where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilt before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusion'. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explained on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 27 of 68 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 These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence.

35. Reverting back to the facts of the present case, the following can be the circumstances for linking Accused Ajeet with the present case crime.

LAST SEEN

36. In this case, first the prosecution has to establish the presence of accused at the spot with deceased. To prove this aspect, the prosecution has examined PW1 Pratima. She is the neighbourer of deceased but she has stated that she did not see Jeetu in the company of Anil, Ajit and Kailash on 30.5.99 at 8.15 p.m. She was declared hostile by the prosecution and cross examined by the Ld. APP for the State but in vain.

37. Another witness to the last seen theory is PW3 Ritu wife of State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 28 of 68 Sombir. It has come in her statement that she alongwith her husband PW17 Somvir were residing at H.No.212 Palam Colony, Raj Nagar, Delhi and her sister in law and her son Jitender was also residing there. She has further stated that three boys had come to call Jitender. Anil was doing the work of electricity in a newly constructed room at the backside and Ajit and Kailash were also with him. She has further stated that on 29.5.99 all the above three persons Anil, Ajit and Kailash had called Jitender from their house at about 8 p.m but Jitender did not return and on 30.5.99 the dead body was recovered by the police in the area of Panchwati. Her husband was not present on the day of incident. Accused Ajit is not present in the court. This witness has also been declared hostile and cross examined by the Ld. APP for the State. This witness did not identify accused Ajit present in the court that he is the same boy who had accompanied Kailash and Anil on the said date of incident and took deceased Jitender with them. In cross examination conducted by the Ld.APP for the State she has denied the suggestion that she has stated in her statement that she is sure that accused persons namely Ajit, Anil and Kailash had committed murder of Jitu or that about two months ago in the evening in DDA Park, Accused Anil abused to her husband and on this her husband had given four five slaps to Anil and he had threatened her State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 29 of 68 husband. Perusal of her statement revealed that she has stated the date when deceased Jitneder was taken as 29.5.199 while as per the case of the prosecution the date is 30.5.99. Ld. APP for the State has also not put any suggestion during his cross examination that the date of taking away of Jitender is 30.5.99 and not 29.5.99

38. The prosecution has also examined PW17 Somvir who had stated that on 30.5.99 he had gone to market. When he came back he saw Ajit, Anil and Kailash alongwith his nephew Jeetu@ Jitender Malik going towards railway line. At about 9 p.m they searched his nephew but he could not be traced. He went to the house of Anil and enquired but Anil told him that he had sent Jeetu back after sometime. PW17 Somvir has alleged that he had seen Jeetu @ Jitender Malik in the night of 30.5.99 with Ajit, Anil and Kailash. But in consideration of the examinationinchief of his wife PW3 Ritu she has clearly testified that her husband (PW17) was not there in the house on 30.5.99. PW17 Somvir seems to be an introduced witness of last seen because his wife herself has admitted that he was not present on the day of incident. This version of PW3 Ritu is further strengthened when PW17 Somvir in his cross examination has admitted that during the period of death of Jeetu, he was working as a transporter. He denied the suggestion of the Ld. Counsel that he left the house one day State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 30 of 68 prior to the death of deceased Jeetu. He has further stated that he was operating his business from his office situated at Bakauli at GT Karnal Road, Near Alipur at the time of incident. His office hours were not fixed. He used to remain with vehicle upto its destination. He was not maintaining any record of the departure and arrival of the vehicle. Whenever the contract was given for transportation of the goods, sometimes he used to remain with truck for about 1015 days continuously. From the evidence on record it seems that PW17 Somvir used to be busy on truck and even he used to be away for a number of days. PW9 Ritu has specifically stated that on the day of incident PW17 Somvir who is her husband was not present at home. From the version of PW9 it is emphatically clear that PW17 was not at home on the alleged day of incident. I have perused the rukka Ex.PW19/1. As per rukka Somvir identified the dead body on 31.5.99 who informed that on 30.5.99 at about 8.30 p.m Jitender had gone missing. However, there is no mention in the rukka that with whom Jitender had gone on that night.

39. PW9 SI Ram Nivas in cross examination has stated that one Somvir met them at the place where the dead body was lying and he was alone. PW10 Ct. Pramod Kumar has stated that Somvir informed them that it is the dead body of his nephew Jitender and in cross State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 31 of 68 examination he has stated that the statement of Somvir was recorded at the place of occurrence. PW11 HC Ram Nivas has also stated that Somvir was present at the spot. PW22 Insp. Anand Sagar has stated in cross examination that he did not know Somveer, the maternal uncle of the deceased from before the incident. When Somveer had reached the spot of recovery of dead body and had introduced himself as the maternal uncle of the deceased, he had not collected his I.D proof. However, he was identified by the other relative of the deceased namely Tara Chand who had reached the spot. The prosecution has also examined Tara Chand as PW6 regarding identification of the dead body. He has further stated that Somveer reached at the spot after half an hour of their reaching there. Regarding presence of Somvir, court question was put to PW22 Insp.Anand Sagar which is as under : Court Question: How Somveer had reached the spot? Ans: From the spot, I had found one label of New Bombay Tailors, Palam Colony, on the inner waist side of the pant of the deceased. AT this, I had sent SI Ram Nivas to verify about any such tailor. He made enquiries from the area and came to know that deceased was resident of Palam and this news spread in the area and consequently, Somveer reached at the spot.

State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 32 of 68

40. PW3 Ritu and PW17 Somvir have been cross examined at length by the Ld. Defence counsel. PW17 Somvir has made many glaring improvements in his statement and he was confronted with his statement. The witnesses who made improvements are not to be treated as trustworthy and reliable witnesses. In case Law Hasan Murtza Vs. State of Haryana, 2002(1) CC 425 it is held that : 'Penal Code, 1860, Sec.302 - Offence of murder of wife by dousing her with petrol and setting her ablazed - Sole testimony of a eye witness PW4 is the house challanged - contradictions and improvements in evidence PW4 - statement contradiction in material particular - trial court convicting the accused holding that previous statement to be police need not be elaborated - High Court confirmed the trial court order

- Appeal before Apex Court whether contradictory statement reliable - The court served unworthiness of such testimony unless corroborated by material facts - the delay also contributed to the doubt as to occurrence

- Appeal allowed. '

41. In the present case, there is no mention that PW17 had seen accused Ajit and his associates in the company of deceased Jitender. In FIR there is no mention of such names. Even in brief facts prepared after registration of FIR and arrival of PW17, the name of accused State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 33 of 68 persons are not mentioned as have been seen with deceased Jitender. Similarly in the inquest report and MLC there is no mention of names of the accused persons as have been seen in the company of deceased. In case Law Chacko Vs. State of Kerala, 2002 IV AD (Cr SC 657 it is stated that : '.... Then again as complaint by the Ld. Counsel for the appellant, we notice that on 28.7.96 at about 5.30 p.m the police had known that it was the appellant who had committed this crime but in the inquest report which was drawn on 29.7.96 in column no.12 corresponding to name of the suspect it is specifically mentioned 'No' meaning thereby that officer who drew this document did not have the knowledge that it is the appellant who had caused injury.' In case law Kishan Pal Vs. State, 2004(2) JCC 1149 it is held that : 'Penal Code 1860 - Sec.302/34 - Conviction and sentence sustainability - PWs related - did not disclose the name of the assailant to doctor at the time of admission of victim in hospital PW2 in the supplementary statement of added the two other persons who has alleged to have beaten the victim by rods and stones - Contradictions about the place of incident. Held - non disclosure of name of the assailant while reporting the incident is unnatural conduct - Conviction can not be based on testimony of such PWs - PWs who have alleged to be present at the spot and was also State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 34 of 68 beaten did not receive any injury - not reliable - Appeal allowed'

42. Admittedly in the present case PW22 IO reached at the spot at about 10.55 a.m and within half and hour PW17 Somvir also reached there. All the proceedings were conducted in his present. But he did not disclose at that time that he had seen accused in the company of deceased on the previous night. In view of my above discussions and specifically the testimonies of PW2 Ritu and PW17 Somveer as Ritu has not identified accused Ajit as the same boy who accompanied deceased Jitender on the day of incident and further that she deposed the wrong date of incident and testimony of PW17 that he saw the accused persons with deceased on the day of incident but as per admission of PW2 Ritu who is wife of PW17 that her husband was not present at the house on that day, I am of the view that last seen is doubtful in this case.

FIRST INFORMATION

43. As per the case of the prosecution, first information in this case was recorded by PW15 Ct.Sunita in control room form Ex.PW15/A. I have perused the same. It revealed that it was recorded State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 35 of 68 on 31.5.99 at 10.34 a.m alleging that 'Palam Railaway Phatak se aage, Panchwati ke quartero ki taraf khali jagah mei ek dead body padi hai'. As per PCR form, this information was received by Police Control Room from Phone no. 5665513. The prosecution has not tried to contact the owner of said phone number to establish as to how he came to know about lying of dead body and who is that person. IO of the case has not conducted any investigation in this respect. In case Law Shyam Sunder & Raj Kumar Vs. State (Delhi Admn), 1995 (33) DRJ (DB) High Court of Delhi in para 26 has observed that : 'It is significant to mentioned that one Sh Malhotra had given a telephone call to the police control room at 8 p.m that a number of persons had sustained injuries in quarrel at H.No.70 Western Extn Area, Karol Bagh. This report was recorded in DD no.180 copy of which is Ex.PW8/A. ........ Even the telephone number of said Sh Malhotra is recorded in DD report which is 5711372. Earlier to this report, a report had been received from the hospital recorded at 7.50 p.m in Daily Dairy copy of which is Ex.PW3/A , SI Laxmi Chand had been deputed to inquire into the matter. The place of occurrence was known to the police from these two reports and it is inconceivable that the police would not have taken steps to immediately reach the place of occurrence besides taking steps at the hospital in order to find out about the presence of any eye State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 36 of 68 witnesses either at the hospital or at the place of occurrence. Nothing has come on the record to reveal as to whether the IO had contacted the said Malhotra or not and whether the said Malhotra was an eye witness of the occurrence or not.'

44. In case Law State of Rajasthan Vs. Teja Ram, 1999 II AD (SC) 537 = (1999) 3 SCC 507 it is stated that : "..... If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness.'

45. In case law State of UP Vs. Jaggoo AIR 1971 SC 1586 It is stated that : 'It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witnesses whose evidence is essential to the 'unfolding of the narrative' should be called. This salutary principle in criminal trials has been stressed by this court in the case of Habeeb Mohammad Vs. The State of Hyderabad AIR 1954 SC 51, for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case.' State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 37 of 68

46. In this case first informant from telephone no. 5665513 was a crucial witness but he/she was withheld by the prosecution from the trial as no investigation conducted in this respect. The testimony of said witness might be convenient, or might be contrary to the expectation of the prosecution and therefore there is legitimate ground for suspecting the prosecution version. He would have been the best witness to throw some light on the case of the prosecution. But the prosecution has failed to investigate this aspect of the case.

47. In case Law Mubin Vs. State (Govt of NCT of Delhi), 2010 (2) JCC 934 it has been observed in the head note that : 'Penal Code, 1860 - Sec. 302 and 201 - Conviction based on circumstantial evidence - cannot be sustained when the prosecution has not been able to firmly establish the incriminating circumstances leading to irrefutable inference of guilty of accused - A possibility of someone else have committed the murder and dumping the dead body in gutter cannot be ruled out - Since a possibility of innocence of appellant cannot be ruled out his conviction and sentence cannot be upheld. Penal Code, 1860 Sec. 302 and 201 - Incriminating circumstance - Non filing of any report about missing State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 38 of 68 of the deceased by the complainant the wife of the deceased - raises a strong doubt against the credibility of witnesses of complainant and her mother.'

48. In the present case also, PW17 Somveer did not lodge any missing report of deceased Jitender. In cross examination PW22 Insp. Anand Sagar has admitted that he had conducted enquiry as to whether any missing report of the deceased was lodged with PS but no such report was found lodged. He has further stated that during investigation, he came to know that the deceased was missing from his house from the night of 30.5.99. Somveer had informed him that he had gone to lodge report with PS Dwarka, but he was advised to search for the deceased at their own, but he did not verify the said information from PS Dwarka. Admittedly no missing report was lodged in this case and also IO has not verified the information from PS regarding coming of Somveer to lodge the missing report. MEDICAL EVIDENCE

49. PW18 Dr. Manish Kamath has appeared for Dr. Chanderkant. However, thereafter the prosecution has also examined Dr. Chanderkant as PW23 and he has stated that he had conducted the State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 39 of 68 post mortem on the dead body of Jitender Malik @ Jeetu. The post mortem report is Ex.PW23/A. I have also perused the post mortem report. As per post mortem report, following ante mortem injuries are mentioned:

1. One incised wound on left forearm 10 cms above, of left wrist joint region both margins clean cut, both angles Acute size 3 cms x 1 cms x 2 cms (depth)

2. One incised wound on left forearm 3 cms above from injury no.1, one antero, lateral aspect, both margins clean cut, both angles acute size 1 cm x 0.8 cms x 1 cm (depth)

3. On incised wound on left forearm 3 cms above from injury no.2 on antero lateral aspect, both margins clean cut, both angles acute, size 3 cms x 0.8 cms x 2 cms (depth).

4. Abrasion on the outer aspect of left elbow size 3 cms x 2 cms.

5. One stab wound on the outer aspect of lower part of left upper arm 7 cms above to left elbow,both margins clean cut both angus acute size 2 cms x 1 cm x 2.6 cms (depth).

6. One stab wound on the outer aspect of left upper arm, lower part 5 cms above from injury no.5, both margins clean cut, one angle acute, one angle obliterated size 2cms x 1.5 cms x2.5 cms (depth)

7. One stab wound in the middle and medial aspect of left upper arm, both margins clean cut, one angle acute, one angle obliterated, size 2 cms x 1 cm x 2.5 cms (depth).

8. One incised wound on the outer aspect of left upper arm lower part, both margins clean cut, both angles acute size 3 cms x 2 cms x 2.4 cms. State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 40 of 68

9. One stab wound on left deltoid muscle and 5 cms blow from left shoulder joint, both margins clean cut, one angle acute, one angle obliterated, 3 cms x 1.5 cms x 3.2 cms depth.

10. One stab wound on the anterior aspect of left shoulder region, both margins clean cut, one angle acute, one angle 06 literated size 2.2 cms x 1.5 cms x 2.5 cms depth.

11. NECK REGION A. One incised wound on right side of neck 6 cms below from ear, both margins clean cut, both angles acute size 2 cms x 0.8 cms x 1 cm. B. One incised wound on right side of neck medial to injury no.11 both margins clean cut, both angles acute size 2 cms x 1 cm x 1 cm. C. One stab wound on right side of neck, lateral to injury no.11B both margins clearn cut, both angles acute, size 2 cms x 1 cm x 2.6 cms cutting underneath neck structures.

D. One stab wound, middle of neck left side both margins clean cut, both angles acute size 2.5 cm x 1 cm x 2.8 cms (depth) E. One stab wound middle and front of neck 3 cms a box from suprasternal notch, both margins clean cut, both angles size 2 cms x 1 cms x 2.4 cms. F. Three parallel incised wound in the front of neck above to injury no.11E. (1) size 2 cms x 1 cms x 1.8 cms depth (2) size 2 cms x 1 cms x 1.5 cms depth (3) size 2 cms x 1 cm x 1 cms depth, margins of all three incised wound clean cut, with both angles acute.

12. One stab wound on chest left side, 4 cms, below from left nipple, both margins clean cut, both angles acute, size 2.5 cms x 1 cms x cavity deep.

13. One stab wound on chest left side, medial to left nipple and 6 cms below from injury no.12, both margins clean cut, both angles acute size 2.5 cms x 1 cm x cavity deep.

State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 41 of 68

14. One stab wound on left anterior axillary fold, both margins clean cut, both angles acute size 3 cms x 1 cms x cavity deep (depth).

15. One stab wound on chest left side, below left nipple, both margins clean cut, one angle acute, one obliterated, size 2 cms x 1 cm x cavity deep.

16. One circular stab wound, with contused incised margins on left anterior axillary fold size 0.3 cms x 0.3 cms x cavity deep.

17. One stab wound above left sub costal margin on chest left side 10 cms below from left supple, both margins clean cut, both angles acute, size 2.1 cms x 1 cm x cavity deep.

18. One stab wound middle of abdomen,below Xiphishrouem, both margins clean cut, both angles acute, size 2.1 cms x 1 cms x cavity deep.

19. One stab wound on chest left side, lower part, both margins clean cut, both angles, size 2.5 cms x 1 cms x cavity deep.

20. One stab wound in the middle of chest, lower part of sternal body, both margins clean cut, both angles size 3 cms x 1.5 cms x cavity deept.

21. One stab wound on left abdomen, upper part, both angles acute, both margins clean cut size 2.5 cms x 1.5 cms x cavity deep

22. One stab wound on abdomen left side 4 cms below from left subcostal margin and 9 cms away towards left side from midline, both margins clean cut, both angles acute.

23. One stab wound on lower part of chest left side on left anterior axillary line 17 cms below from left anterior axillary fold both margins clean cut, both angles acute - size 3 cms x 1 cms x cavity deep.

24. One stab wound on chest left side lower part on left posterior axillary line, both angles acute, both margins clean cut size 2 cms x 1 cms x acute both State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 42 of 68 margins clean cut size 2 cms x 1 cm x cavity, stab wound was 22 cms below from left posterior axillary fold.

25. One incised wound on the left side of right hand, both margins clean cut, both angles acute size 3 cms x 1 cms x 0.8 cms.

ABRASIONS ON SCALP REGION

26. Abrasions on the right parietal region in an area of 5 cms x 4 cms.

27. Abrasions in the middle of scalp region size 3 cms x 4 cms.

28. Abrasions on left occipital region in an area of 10 cms x 8 cms.

29. Linear abrasions in the right frontal region size 4 cms x 1.5 cms. TIME SINCE DEATH About 36 hours - 38 hours.

CAUSE OF DEATH Shock, haemorrhage, injuries to vital organs, antemortem in nature and collectively sufficient to cause death in ordinary course of nature.

50. PW23 Dr. Chanderchant had conducted the post mortem examination on 01.06.1999 at 10 a.m. The time gap between the death and the post mortem examination, according to PW23 was between 36 hours 38 hours. PW23 Dr. Chander Kant, who had conducted the post State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 43 of 68 mortem has not been cross examined by the Ld. Defence counsel. Therefore his testimony remained unchallenged regarding time since death as well as about post mortem. However, if we calculate the time from 01.06.1999, the time of death of Jitender come to between 10 or 11 p.m on 30.05.1999. Therefore, the time gap between the death and the time when Jitender was last seen alive by PW3 Ritu and PW17 Somvir was about 23 hours. Furthermore, it is admitted by PW3 & PW17 that the mother of coaccused Anil (juvenile) used to work in the house of PW3 & 17. In view of the medical evidence available on file, it suggest that deceased Jitender was murdered. However, IO of the case has not taken subsequent opinion from the PW23 Dr. Chanderkant as to whether the injuries available on the person of deceased Jeetu is possible by the knife recovered in this case or not. I have perused the result of FSL Ex.PW19/8 which is regarding the cut marks on T.shirt. This Tshirt was lifted by the police vide memo seizure Ex.PW2/3 which was lying at the distance of 8 feet from the dead body and as per seizure memo it was a torned cloth of Tshirt. It is crystal clear that it was not a complete Tshirt. When a torned piece of Tshirt was sent to FSL, it is not understandable as to how it was described as Tshirt. However, as per seizure memo Ex.PW5/1, doctor in the hospital had handed over the blood stained clothes of deceased State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 44 of 68 to the police but the seizure memo does not describe the number of clothes. Further, this pullanda must have contained all the clothes of deceased and not only the Tshirt. But in FSL office only Tshirt was received with earth sample for opinion regarding possibility of cut marks by knife. Further the opinion was given by Sh C.K.Jain, Sr. Scientific Officer. It has not been forwarded or signed by the Director of FSL. Therefore, it cannot be taken into consideration.

51. Ld. Counsel for the accused has argued that as per the disclosure statement Ex.PW11/B only the clothes of accused Ajit were recovered and only one weapon i.e. knife was recovered on the disclosure statement Ex.PW2/6 from co accused Kailash (already convicted) and therefore it is clear that only one weapon was used. So, the post mortem report Ex.PW23/A belies the claim of the prosecution. I have considered the report. Injuries no.4,16,26 to 29 all are possible with knife Ex.P1. Furthermore, injuries no.4, 26 to 29 are abrasions. Abrasions are possible due to scuffle or fall. There is no evidence that deceased had been dragged. This case is based on circumstantial evidence and prosecution has to prove each and every circumstance. The abrasions could have been because of the thorny bushes. Now as regards injury no.16 is concerned, it was a circular State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 45 of 68 stab wound with contused inverted margins. There is no explanation on file as to how and with which weapon this injury was caused on the person of deceased Jitender. The prosecution is silent on this aspect. Now as regards the disclosure statement Ex.11/B, it is well settled principle of law that disclosure statements are not admissible in evidence except the part of statement where recovery has been effect. In case Law 1990 (1) CC Cases 250 (HC) it is stated in head note that: 'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'. MOTIVE

52. Ld. Counsel has argued that there was no motive for accused Ajit to kill Jitender and therefore, the prosecution case be thrown on this ground alone is devoid of merits. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 46 of 68 motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. It was stated in case State of H.P. Vs. Jeet Singh 1999 (3) A.D.(S.C.) 89 (para33) that: 'It is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution failed to prove the precise motive of accused to commit it. It is almost an impossibility for prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. ' In case law Nathuni Yadav S. State of Bihar, AIR 1997 S.C 1808 it was held that : 'Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable.' State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 47 of 68 In case Ashok Kumar Vs. State of NCT of Delhi, 2012 (1) CC 59, it is held that : 'Criminal Trial Normally in circumstantial evidence based cases, the prosecution has to prove motive - Absence of motie in such cases becomes material - corresponding motive is not important in the case of direct or ocular evidence.' In case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI L.J 762 it is stated in headnote : 'Evidence Act. 1872, Ss. 3,8 - Penal Code (1860), Ss.299, 300, 302 - Murder - Proof of - Case based on circumstantial evidence - Motive of accused not proved by prosecution - Held, that since important circumstantial evidence had been disbelieved absence of proof of motive would weigh in favour of accused'.

53. On the aspect of motive I have perused the evidence. There is nothing in evidence in examination in chief of witnesses regarding motive. However, PW17 Somvir has admitted the suggestion of Ld. APP at the time of cross examination after declaring him hostile that one month prior to the incident, Anil was wandering in DDA Park after drinking liquor and he had slapped him for same and he threatened him by saying 'Iska Mai Badla Le Kar Dikha Dunga'. He State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 48 of 68 also admitted that accused Ajit voluntarily made disclosure statement that he alongwith accused Anil and Kailash committed murder of Jeetu by stabbing knife at Panchwati Railway Line. There is no evidence on record that accused Ajit Singh Chauhan had any motive to kill deceased Jeetu @Jitender. However, accused Ajit Singh Chauhan has admitted in his statement of accused recorded u/s 313 Cr.PC that deceased Jitender @ Jeetu was residing with his mother at H.No. 212, Palam Colony, Raj Nagar, New Delhi and he was his class mate and he was on visiting terms to his house. In view of the above evidence of PW17 Somvir and the affirmative suggestion put to him by Ld. APP for the State after declaring him hostile, I am of the view that there was no motive for accused Ajit Singh Chauhan to take revenge against Somvir. Further in case titled Preetam Singh Vs. The State, 1998 (1) JCC (Delhi) 94 it is stated in head note that : 'Penal Code, 1860 - Sec. 302, 460 and 411 - Murder and theft A number of defaults in prosecution case and conviction - Circumstantial evidence - Prosecution failed to prove a complete chain of circumstantial evidence. In the present case the circumstantial evidence produced by the prosecution does not conclusively lead to the only irresistible conclusion that the appellants were the persons who committed the State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 49 of 68 crime and none else - Hence the appellants are entitled to benefit of doubt.' In case law 2012 (1) JCC 59 (DHC), Ashok Kumar Vs. State of NCT of Delhi it has been observed in head note that : 'Criminal trial - Murder case - Motive - Importance of

- Normally in circumstantial evidence based cases, the prosecution has to prove motive - Absence of motive in such cases becomes material - Correspondingly, motive is not important in the case of direct or ocular evidence.' In case Law 2011(4) JCC 2818, Raj Kumar Vs. State (NCT of Delhi) it has been observed in head note that : 'Criminal trial - Motive - Significance of - Motive is a relevant factor in criminal cases whether based on testimonies of eye witnesses or on circumstantial evidence - In cases based on circumstantial evidence, if prosecution proves motive, the same is of great significance and is counted as one of the circumstances

- Non investigation of motive part - A factor against prosecution.

54. In the present case also no investigation has been conducted by the IO to establish the motive of present accused Ajit Singh Chauhan to murder deceased Jitender.

State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 50 of 68 ARREST OF ACCUSED

55. Ld. Counsel for the accused has dispute about the arrest of accused in this case. I have perused the evidence. PW17 Somveer has stated that on the same day i.e. 31.5.99 in the night at about 9/9.30 p.m he alongwith police went to the house of accused Ajit and blood stained clothes i.e pant and perhaps T shirt of Ajit were taken into possession vide memo Ex.PW17/B. Accused was apprehended and brought to PS. It is clear that accused was brought to PS on 31.5.99 as per version of PW17 Somvir. PW11 ASI Ram Nivas in his cross examination has stated that he left the PS at about 12.15 p.m on 1.6.99 and joined the investigation. The accused was arrested from Gali no.2 Raj Nagar PartII, Palam Colony, New Delhi. He was arrested at 3.50 p.m at the corner of gali no.2 just ahead of 2025 paces from the side of railway line. As per version of PW11 accused was arrested on 1.6.99. PW22 Insp. Anand Sagar who is the IO of this case has stated that at about 5.50 p.m on secret information accused Ajit Singh was arrested from outside of his house at street no.2, Raj Nagar partII, Palam vide arrest memo Ex.PW22/B. Further in cross examination IO PW22 has stated that it is correct that he has cited Chhavinath State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 51 of 68 Chauhan as a witness to the arrest memo. Immediately after the arrest of accused Ajit Singih his father was called and then his signatures were obtained as a witness. He admitted that the father was not present at the time of arrest of accused Ajit Singh again said he had obtained the signatures of Chhavi Nath Chauhan in the column of witness as a person to whom the information was given about the arrest of the accused. He admitted that he has not cited any of the official witnesses to the arrest memo despite the fact that they were present there. The arrest memo was not prepared by him but some other police official and despite that fact the said police official has not been cited as a witness. In view of the above, PW17 has deposed that accused was arrested on 31.5.99 from his house at about 9/9.30 p.m, PW11 has stated that accused was arrested on 1.6.99 at about 3.50 p.m from Gali no.2 Raj Nagar PartII, Palam Colony, New Delhi, PW22 has stated that he was arrested on 1.6.99 at about 5.50 p.m from outside of his house street no.2 Raj Nagar II Palam Colony, New Delhi. As per arrest memo Ex.PW22/B date of arrest is shown as 1.6.99 but column no.5 i.e. 'Place of Arrest' and column No.7 ie. 'time of arrest' are left blank. IO has also stated that he himself did not prepare the arrest memo but it was prepared by some other police official. He also admitted that the said police officials has not been made witness in this State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 52 of 68 case. In case law Ajay @Chotu Vs. The State, 2012(2) JCC 1261 it is stated in headnote that: Criminal Practice - Arrest of accused - Three conflicting versions undermine the prosecution's version about arrest of the accused - Principle laid down by Hon'ble Apex Court followed that the circumstances surrounding arrest of the accused, and doubts emerging from the prosecution's case can be a ground for acquittal.

56. Reliance in this respect can also be placed on Asif Mamu Vs. State of Rajaasthan, AIR 2009 SC 600. In the present case also, there are three conflicting versions as discussed above which undermines the prosecution's version about arrest of accused Ajeet Singh Chauhan. The arrest of accused is therefore, doubtful in this case.

RECOVERY OF KNIFE/CLOTHES/FSL RESULT

57. Recovery of weapon of offence i.e. knife in this case was allegedly effected from co accused Kailash in this case. No recovery of any weapon was effected from present accused Ajit Singh Chauhan.

58. It is the case of the prosecution that disclosure statement of accused Ajit was recorded and he got recovered his blood stained clothes. PW17 Somveer has stated that the dead body was taken to State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 53 of 68 Safdarjung Hospital for post mortem by the police and he was taken to the house of Anil by the police officer but Anil was not present at his house. Thereafter they came back to PS and at about 9/9.30 p.m he alongwith police went to the house of accused Ajit and blood stained clothes of Ajit were taken into possession vide seizure memo Ex.PW17/B. PW22 Insp. Anand Sagar who is the IO of this case has stated that he alongwith HC Ram Nivas, Ct. Pramod, Ct. Ashok and Ct. Nishan arrested accused Ajit Singh on the basis of secret information from outside his outside at Street no.2 RajnagarII. He further stated that accused Ajit took out a Tshirt having checks and one pant of dark grey colour from a plastic basket kept inside the store of his house and handed over to him saying that these are the same clothes which were worn by him at the time of incident. The same were sealed with the seal of AS and taken into possession vide memo Ex.PW17/B. So, as per the testimony of PW17 Somveer, the recovery of clothes were made on 31.5.99 as he accompanied the police on the same day when the dead body was taken to Safdarjung Hospital and as per statement of PW22 Insp. Anand the said recovery was effected on 1.6.1999 at 5.50 p.m.

59. The clothes had been recovered on the basis of disclosure statement. PW11 HC Ram Nivas has stated that the accused was State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 54 of 68 interrogated and his made disclosure statement Ex.PW11/B in the presence of PW17 Somveer. But PW17 Somveer nowhere has stated that accused had made such disclosure statement before him. The disclosure statement of accused was recorded on 1.6.99 and as per seizure memo the clothes were recovered on 1.6.99. But as per the deposition of PW17 Somveeer he was taken to the house of Ajit on 31.5.99 in the night and blood stained cloth of Ajit were seized vide memo Ex.PW17/B while as per the testimony of official witnesses as well as seizure memo, accused got recovered his clothes on 1.6.99.

60. PW17 in cross examination has admitted that the area where accused Ajit is residing is a thickly populated and even at the time of recovery of blood stained clothes about 1015 public persons gathered there. The police officer did not record the statement of any public person. PW22 has stated in cross examination that it is incorrect that he took the signatures of accused Ajit Singh on blank papers forcibly or that the said papers were later on used by him to make out a false case against the accused to falsely implicate him in present case. He also admitted that the house of accused is densely populated.

61. From the version of both the witnesses, it seems that these clothes were kept in open place which was approachable for the family members of accused Ajit Singh Chauhan. There are contradictions in State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 55 of 68 the testimonies of witnesses regarding date of recovery of clothes. IO has not tried to associate any public witness at the time of recovery of clothes though available at the spot. These clothes were sent to FSL. I have perused the FSL result. As far as weapon of offence is concerned, human blood was detected on it but no reaction for group was found. On Ex.9A pant and Ex.9B TShirt human blood of 'O' Group was detected. However, the seizure memo of clothes got recovered by accused is Ex.PW17/B vide which dark grey colour pant and Tshirt with black and grey checks were produced by accused. Ex.9a i.e. pant, as per FSL result is of brown colour and Tshirt is of mahroon colour. It is therefore manifest that no blood group was detected on the cloths produced by accused Ajeet Singh Chauhan. Further there is no blood group detected on the weapon of offence by which it would have been tallied for the presence of blood group. It has been stated in case law Satish Kumar Vs. State, 1995(34) DRJ (DB) in para 33 that : 'Now we are left only with the evidence with regard to the disclosure statement allegedly made by the appellant and the recovery of blood stained knife and blood stained shirt at the instance of the appellant. At the outset, we may mention that the group of the blood appearing on the said articles could not be deciphered by the experts. Only State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 56 of 68 human blood was found on the said articles. So, strictly speaking, the said articles cannot be linked with the crime in question. Be as it may, both the SHO and SI Sher Singh and Shushil Kumar admitted that no efforts were made by the police to join any independent witnesses before recording the disclosure statement of Satish and before effecting the recoveries. It is not understood as to how the basic principle of investigation has been lost sight................. Merely having the brother of the deceased with them for this purpose does not remove the suspicion about the genuineness of disclosure statement and the recoveries allegedly effected on the basis of such disclosure statement. (Reliance can also be placed on Kedar Singh @ Kedari Vs. State, 1996 JCC 111, para 21.)

62. In case titled Preetam Singh Vs. The State, 1998 (1) JCC (Delhi) 94 it is stated in head note that : Recoveries - Murder and theft case - Recoveries not made in presence of independent witnesses though available - Such recoveries cannot be considered by the court in evidence.

63. It is well settled law that recoveries effected from open place are not good recoveries. In this respect reliance can be placed on 2003 Supreme Court Cases (Cri) 1149, Salim Akhtar @ Mota Vs. State of U.P.in which it is stated in headnote 'A' that : State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 57 of 68 'Terrorist and Disruptive Activities (Prevention) Act, 1987

- S.5 Recovery of a polythene bag containing a pistol, cartridges, a bomb and RDX at the instance of accused - appellant - Recovery from an open place accessible to all and everyone - Conviction u/s 5 - Propriety - Pistol alleged to have been recovered not sealed and its "number" or "make" etc. to fix its identity not mentioned in the recovery memo or FIR - No effort made by police to get any independent public witnesses at the time of alleged recovery - The only public witness (a photographer) examined was not only intimate but was also obliged to the police party - Held, Sec. 27 of Evidence Act what was admissible was the place from where the said polythene bag was allegedly recovery - The fact that some terrorist organization had given the pistol and other articles to the appellant or its use, held, not admissible - since the recovery was made from an open place accessible to all and everyone, held, it was not possible to hold that the appellant was in possession of articles alleged to have been recovered from him - Hence conviction and sentence of appellant set aside - Evidence Act, 1872, Sec.27 - Criminal Trial - Possession of incriminating article - Recovery of incriminating articles from an open place accessible to all - Inference of possession, held doubtful'.

64. In view of the above evidence on record regarding recovery of clothes from accused Ajit Singh, it is revealed that no blood group was detected on the said clothes to connect the accused with the State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 58 of 68 present case crime. The tokri (basket) from which the clothes were recovered has not been taken into possession by the IO in this case. No other independent witness has been joined by the IO at the time of recovery of the said clothes though as per the admission of witnesses many public persons were available at the spot. The alleged clothes were also found lying in open space of the house which were approachable to all the family members. Considering the above circumstances, the recovery of clothes of accused is doubtful and it does not connect the accused with the present case crime. PLACE OF RECOVERY OF DEAD BODY

65. PW17 has stated that when he alongwith Tara Chand and his son went to see the dead body at Railway Track, he found that it was the dead body of his nephew Jeetu which was lying on the track. PW22 Insp. Anand Sagar Gar has stated that he alongwith SI Ram Nivas, Ct. Jaipal and Ct. Pramod reached at Panchwati near railway line Palam. There in a pit over the bushes, which was near the boundary wall of IGI Airport and Govt quarters and which were under construction in Southern direction, he found the dead body of a boy about 1314 years. PW6 Tara Chand has stated that on 31.5.99 the State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 59 of 68 dead body of Jitender was lying near the wall which is situated near the construction of Panchwati area.PW19 HC Hansraj who is the witness from Mobile crime team has stated that he alongwith I/C reached the spot i.e. near railway Palam Phatak in front of Panchwati Quarters. PW21 Insp. Ranjay Atrishya Incharge Mobile Crime team has stated that the spot was quarters which were under construction at Panchwati near the IGI airport wall. In view of the above contradictory evidence regarding place of incident, I have perused the site plan Ex.PW19/2. In the site plan the place of recovery of dead body is shown near boundary wall IGI Airport and not on the railway track. I have also perused the scaled site plan Ex.PW7/1 wherein the place of recovery of dead body is near boundary wall IGI Airport and in this site plan railway line is shown at too far away from the place of recovery of dead body. PW11 ASI Ram Nivas has stated that the place where the dead body was lying is a land belonging to defence. Thereafter there is land belonging to railway and railway line on the West side. PW17 has specifically stated that the dead body was lying at railway track while the documents are showing that it was lying near the wall of IGI Airport in a pit. In case Law Kishan Pal Vs. State, 2004(2) JCC 1149 DHC it has stated in head note that: State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 60 of 68 'Penal Code, 1860 - Sec. 302/34 - Conviction and sentence - Sustainability of - PWs related - Did not disclose the names of the assailants to doctor at the time of the admission of the victim in hospital PW2 in his supplementary statement added the names of two other persons who have also alleged to have beaten the victim by rods and stones - Contradictions about place of incident - Held: non disclosure of names of the assailants while report the incident is an unnatural conduct - Conviction cannot be based on the testimonies of such PWs PWs who have alleged to be present at the spot and was also beaten did not receive any injury - Not reliable'

66. In case law Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 Supp (2) S.C.C 706 it is stated in head note that : 'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8. 'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.

It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 61 of 68 (SCC P.181 para 2627) that : 'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.

67. In the present case, PW17 Somveer in the Mama(maternal uncle) of deceased. He did not accompany the deadbody to the hospital but he himself stated that he was taken to the house of Anil Kumar (coaccused). His conduct in this respect is unnatural. Reliance can be placed on 1998 AD (Crl) S.C. 5. The State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 62 of 68 mother of deceased Jitender was present at the house. But she was never interrogated by the IO nor made witness in this case. There is also no deposition by PW17 that he ever disclosed about missing of Jitender to his mother and sister. Even the elder sister of deceased Jitender has not been made witness in this case. PW17 has admitted that he was residing in the house no. H212 Raj Nagar II Palam Colony and the said house is owned by his sister i.e. mother of deceased Jitender. He further admits that father of Jitender died in the year 1987. Jeetu was having two sisters and both were elders. The younger sister of Jeetu went missing before the death of Jeetu. The mother of Jitender died after the death of Jeetu. Ld. Counsel for the accused has put a suggestion to PW17 that he got killed his nephew Jeetu through anti social elements and falsely implicated accused Ajit to cover up the act which he denied. Ld. Counsel argued that at that time PW17 was not having any house in Delhi and he was residing at the house of his sister i.e. mother of deceased and thereafter there is sudden change in his status as he had purchased his house. In his cross examination PW17 has admitted that the house where he is residing presently is in his name which he had purchased in the year 2006. Ld. Counsel has also given suggestion to PW17 that he sold the house which was in the name of the mother of deceased Jeetu and with that State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 63 of 68 amount he had purchased the house situated in Najafgarh, however PW17 had denied this suggestion also. The above evidence of PW17 and suggestion put by the Ld. Defence counsel also create doubt in the mind.

68. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the opinion that prosecution could not complete each and every chain of circumstances in this case without any reasonable doubt by leading cogent and reliable evidence.

State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 64 of 68

69. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".

70. In view of my above discussions and the case laws cited above, I am of the opinion that the prosecution could not establish the complete chain of circumstances in this case while it is well settled principle of law that in a case of circumstantial evidence each and every circumstance has to be proved by the prosecution by leading legal, reliable and unimpeachable evidence. But I did not find any legal, reliable and unimpeachable evidence in this case. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving such chain of circumstantial evidence as would fasten the State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 65 of 68 guilt on the accused leaving no room for doubt. So, the prosecution has failed to prove its case against accused Ait Singh Chauhan u/s 302/34 IPC and 25/27 Arms Act. I therefore give the benefit of doubt to accused Ajit Singh Chauhan and he is acquitted for the commission of offence punishable u/s 302/34 IPC and 25/27 Arms Act.

71 Accused is on bail in this case. In view of provisions of section 437A Cr PC, accused Ajeet Singh Chauhan is directed to furnish the personal bond in the sum of Rs.10,000/ with one surety in the like amount. Bail bond/Surety bond furnished and accepted.

File be consigned to record room.

Announced in the open Court on 29.08.2012.

(SURESH CHAND RAJAN) ADDL.SESSIONSJUDGE/ SPECIAL JUDGE(NDPS) (South West District) Dwarka Courts/ NEW DELHI State Vs.Ajit Singh Chauhan FIR no.249/99 Page No. 66 of 68

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Delhi District Court

State vs Ajit Singh Chauhan on 29 August, 2012