Delhi District Court
State vs . (1) Raju on 3 February, 2023
IN THE COURT OF SHRI VIPIN KHARB:
ADDL. SESSIONS JUDGE-04: SOUTH-WEST DISTRICT,
DWARKA COURTS: NEW DELHI
SC No. 440354/2016
CNR No. DLSW01-000492-2015
State Vs. (1) Raju
S/o Sh. Shiv Lal
Permanent Add. Vill. Garhi Sainapura,
PS Machhreta, Distt. Sitapur, U.P.
Present Add. C/o Rohit S/o Sh. Surender
R/o Vill. Bhopura, PS Sahibabad,
Ghaziabad, U. P.
(2) Bablu (PO)
S/o Sh. Bhagwan Deen
C/o House of Sulli, Near Chopal,
R/o Vill. Bhopura, PS Sahibabad,
Ghaziabad, U. P.
FIR No. : 473/15
Police Station : Bindapur
Under Sections : 302/34 IPC
Date of committal to Sessions Court : 10.08.15
Date on which judgment was reserved : 03.02.23
Date on which Judgment pronounced : 03.02.23
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 1 of32
JUDGMENT
BRIEF FACTS OF THE CASE:
1. On 02.04.2015, vide DD No.7A information was received at PS Bindapur regarding a dead body at Village Matiala near Rajkiya Sarvodya Kanya Vidhyalya. On receiving information Insp. Vijay Pal and Ct. Raj Kumar went to the spot and SHO alongwith staff also reached there, where a dead body of a young man aged about 30 years was found lying on the road side opposite the abovesaid school. The face of the body was badly crushed due to heavy impact and was beyond recognition. A pair of plastic slipper were lying on the side and an Atlas Gold Line cycle in locked condition was found at a little distance from the head. There was some blood lying on the feet of the dead body. It seems that dead body was dragged to one side. On the right arm of teh dead body "Ram Bahadur" was tattoed in hindi language. No eye-witness was found at the spot. SHO prepared rukka and got registered the FIR through Ct. Raj Kumar.
2. Crime team was called at the spot and Incharge, Crime Team prepared the inspection report and photographs of the crime scene were taken from different angles. IO / SHO prepared site plan, lifted the blood sample, earth control and earth control with blood from the spot from two points and seized the same. IO seized the broken pieces of quarter bottles of liquor, quarter bottle of Besto Whiskey, Beer Can Kingfisher Strong & Haywards 5000, Bear bottle Kingfisher, the Atlas Gold Line Super Cycle, FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 2 of32 plastic slippers make Relaxo Black colour and bamboo danda of length 2 feet and 7.8 inch having blood stains on it was found near the water tank inside the school. Personal search of deadbody was conducted from which some money and one bundle of tobacco (beedi) of brand Robin were found.
District Line hearse van was called and dead body was sent to the mortuary of DDU hospital, where postmortem was conducted, as per which, cause of death was complication of head injuries subsequent to blunt force trauma.
3. During investigation, efforts were made to identify the dead body and Hue & Cry notice were prepared and displayed at various places. On 10.04.2015, Smt. Guddi Devi and Sonu came to the police station after reading the pamphlets. On 11.04.2015 they identified the dead body as their neighbour Ram Bahadur at Mortuary of DDU hospital. IO informed relatives of the deceased i.e brother Subedar and Sunder Lal. On 14.04.2015 they came to DDU hospital. Post-mortem was got conducted and dead body was handed over to the relatives of the deceased. CDR of mobile phone of deceased was obtained. It was found that on deceased mobile no. 7532863401 call was received from phone no. 9990764513 and location of both the phones was Matiala Village. The phone no. 990764513 belongs to Sonu, who on inquiry told that his brother Monu was using the phone. During investigation Monu stated that he is working on Truck No. HR-69A- 0725 with his elder brother Raju and Babloo, who is brother-in-law of Raju. On 02.04.2015 his brother Raju parked the truck near Matiala School and used his mobile to call Ram Bahadur near Matiala School. Ram Bahadur FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 3 of32 came there on bicycle and after that Raju, Babloo and Ram Bahadur had drinks. During drinks Babloo said to Raju that Jija today is good time to take revenge for call off of marriage of Meenu with Sonu and demand of Sonu for doing second marriage, therefore, let us kill Ram Bahadur. On this Babloo took out bamboo danda from bicycle of Ram Bahadur and started hitting on Ram Bahadur face and head. Raju also took iron rod from truck and hit Ram Bahadur on face many times. After that they went away to Haridwar in truck.
4. On 04.05.2015, during investigation one secret informer gave information that accused Raju will come to meet his mother-in-law at around 7:30 p.m. to 8:00 p.m. at C-73, Nanhe Park, Uttam Nagar. IO prepared a raiding party. At around 7:25 p.m. at the pointing out of the secret informer accused Raju was arrested and his disclosure statement was recorded in which accused Raju disclosed that marriage of his brother Sonu was fixed with Reshma, who was granddaughter of Guddi Devi. Reshma was staying with her grandmother in Jain Colony, Uttam Nagar in room adjacent to room of Ram Bahadur. He came to know that Guddi Devi was having illicit relation with Ram Bahadur and he told Ram Bahadur to stop it but he refused. On 02.04.2015, he brought his truck No. HR-69A-0725 to Najafgarh and along-with his brother-in-law Babloo planned to murder Ram Bahadur. From mobile no. 999076451 of his brother Monu, he called Ram Bahadur at around 9:15 p.m. from near Matiala School for doing party. When Ram Bahadur came there they had drinks and non veg and after that FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 4 of32 Babloo hit Ram Bahadur with bamboo danda and he hit with iron rod on the face and after killing Ram Bahadur they throw danda in school premises and left for Haridwar.
5. During investigation accused Raju got recovered iron rod from truck no. HR-69A-0725. Co-accused Babloo could not be arrested and was declared proclaimed offender and chargesheet was filed in the court.
6. After filing of chargesheet, complete set of documents were supplied to the accused and case was committed to the sessions court.
7. The accused namely Raju was tried upon the following articles of charge on 06.11.2015.
"That on or before 02.04.2015, time not known, at road side Matiala Road, opposite Rjkiya Sarvodaya Bal Vidyala, Matiala, within the jurisdiction of PS Bindapur, you along with the your associate Babloo (Since not arrested) and in furtherance of your common intention, committed murder of one Ram Bahadur S/o Shri Vishram, aged about 30 years by assaulting on his person with iron rod and wooden stick and thus, thereby you committed an offence punishable u/s. 302/34 IPC and within cognizance of this court.
And I hereby direct that you be tried for the above said offence by this Court.
ASJ-03: DWARKA: 06.11.2015"
8. To prove its case prosecution examined as many as 22 witnesses.
9. PW-1 Sh. Vishwas Chand deposed that he knew deceased Ram Bahadur, who was working as Barber on Solanki Road. On 01.04.2015 at FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 5 of32 about 7.15 p.m., he went to the shop of Ram Bahadur to get his beard shaved but Ram Bhadur told him that he is going somewhere to celebrate party with his friend Raju driver. Deceased used to go many a times with Raju driver to celebrate party. On next day when he went to the shop of the deceased, he found him missing from his shop. One lady namely Guddi was living with deceased who used to prepare food for the deceased. About one week, he noticed a photo affixed on the shop of Kaushik STD and he identified the photo being that of Ram Bahadur. Guddi also reached at the STD shop. Guddi also identified the photograph of the deceased and thereafter she went to the PS for the identification of deceased. On the right arm of the deceased, his name as Ram Bahadur was engraved.
In cross-examination by counsel for accused, PW-1 stated that he met IO of this case after one week from 01.04.2015. He visited the PS two times, once for identifying the dead body and second time after one month of the incident, when he told IO that deceased Ram Bahadur told him that he was going to meet his relative Raju. He went to the kiosk of Ram Bahadur at 7:00 p.m. Ram Bahadur had already closed his kiosk when he reached there. He did not state to the IO in his statement that deceased used to go many a times with Raju driver to celebrate party.
10. PW-2 Dr. Anurag Thapar was the doctor who conducted the post- mortem of the body of deceased Ram Bahadur vide PM report No. 497/15 as Ex.PW2/A, and his subsequent opinion dated 26.07.2015 is Ex.PW2/B, in which it is mentioned that iron rod was having length of 142 cm with 4 FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 6 of32 kg 900 g weight, broad all throughout but narrow at both ends and there was no blood stain on it. The surface of bamboo stick was smooth brownish-greyish colour and there was redish brown stains. The injury on the face / head of the deceased could not be caused with the iron rod but could be caused from bamboo stick.
11. PW-3 Shri Rajinder Kumar was the registered owner of Truck bearing no. HR69- A-0725. He deposed that accused Raju was the driver on abovesaid truck and accused Raju had kept two of his relatives namely Bablu and Monu as helpers. Accused Raju used to drive his truck from Delhi to Muzaffarnagar. One day he came to know through Insp. Vijay Pal that Raju had committed murder of some person and on the instruction of IO, he sent documents as well as truck through a driver to police station. He was told by the IO that accused Raju had got recovered an iron rod from the cabin of truck, which was taken into possession vide seizure memo Ex.PW- 3/A and Ex.PW-3/B respectively. He got the truck released on superdari vide Superdaginama Ex.PW-3/C. He proved the photocopies of the registration, insurance, fitness of the abovesaid truck, his driving licence and copy of driving licence of accused Raju collectively as Ex.PW-3/D. He stated that he does not know as to where Raju took his truck, after loading the goods, on the intervening night of 01/02.04.2015.
In cross-examination by counsel for accused, he stated that as per his knowledge the truck was loaded on 01.04.2015 and it was supposed to move for destination i.e. Muzaffar Nagar from Delhi after opening of 'No FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 7 of32 Entry'. The loading started on 01.04.2015 at 6:00 a.m. and it continued till 7:00 - 8:00 p.m. He admits that the truck was unloaded at Muzaffar Nagar in proper condition and no complaint was received from the place where the goods were to be unloaded.
12. PW-4 Sh. Sonu was brother of accused Raju. He deposed that his brother Monu was using the SIM which was issued in the name of PW-4. The connection number was 9990764513 and did not depose any other thing.
He was cross-examined by Ld. Addl. PP for the State as he resiled from his previous statement recorded u/s. 161 Cr.P.C. In his cross- examination by Ld. APP he denied the suggestion that his marriage was fixed with Meenu, the sister-in-law (Sali) of accused.
13. PW-5 Sh. Monu deposed that accused Raju is his brother. He was a driver on a truck and he does not know anything about this case.
Ld. APP cross-examined the witness as he resiled from his pre- vious statement. In his cross-examination, he denied giving complaint Ex.PW-2/A and denied all the suggestions.
14. PW-6 Ct. Ravinder deposed that on 02.04.2015, he was called by Duty Officer of PS Bindapur who handed over to him 4 envelopes which were containing the FIR of the present case with the direction to supply the same to concerned Senior Officers who were having the jurisdiction of PS FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 8 of32 Bindapur. Accordingly, he supplied the copy of FIR to ACP, DCP, Joint CP and the concerned MM who was having the jurisdiction of PS Bindapur.
15. PW-7 Smt. Guddi Devi deposed that she knows the deceased Ram Bahadur, who used to reside in Vishwas Park near her jhuggi. In the month of April 2015, she along with her whole family went to their native village and she returned on 09.04.2015, along with her granddaughter Reshma. After coming to Delhi, she came to know from neighbours that Ram Bahadur is not in his jhuggi and that police of PS Bindapur had asked them to come to the police-station to inquire about him. Thereafter, she along with one neighbour, went to PS Bindapur where she was shown a photograph. On seeing the photograph and the deadbody in the mortuary of DDU hospital, she said it appear as that of Ram Bahadur. The name of Ram Bahadur was engraved on his right hand. The deceased Ram Bahadur had purchased a mobile phone on her ID.
16. PW-8 Ms. Reshma deposed that she does not know anything about the present case. Smt. Guddi Devi is her grandmother. She does not know any Raju. She cannot identify him even if shown to her.
She was cross-examined by Ld. Addl. PP for the State as she resiled from her previous statement. In her cross-examination by ld. Addl. PP, she denied having made the statement to the police. She denied that her parents had fixed her marriage with Sonu and that accused Raju had come to Delhi many a times and talked to her grandmother Guddi. She denied that FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 9 of32 accused had a heated altercation with Ram Bahadur on the issue of her engagement with Sonu.
17. PW-9 Sh. Subedar was brother of the deceased, who identified the dead body of the deceased Ram Bahadur vide Ex.PW-9/A. He proved seizure memo of copy of his residence proof as Ex.PW-9/B, the original copy of residence proof of the deceased Ram Bahadur as Ex.PW-9/C and dead body handing over memo as Ex.PW-9/D.
18. PW-10 SI Rakesh was part of crime team comprising HC Ashok Kumar (photographer), Ct. Sandeep (Finger Print Proficient), Ct. Parvesh (driver) which on 02.04.2015 after receiving call from District Control Room, reached at the spot i.e. in front of Govt. Sarvodya Bal Vidhyala, Matiala, Dwarka. As per the direction of the IO / Insp. Vijay Pal, he inspected the spot and HC Ashok Kumar took the photographs of the spot from different angles. After inspection he prepared report Ex.PW-10/A.
19. PW-11 Ct. Amrik deposed that he was on night duty from 11:00 p.m. to 5:00 a.m. and at about 3:00 a.m. when he reached Matiala Road he found one dead body lying on the side of the road. He informed about the same to duty officer, PS Binda Pur.
20. PW-12 HC Ashok Kumar was part of crime team as photographer. During inspection of the site, he had clicked 8 photographs of the spot from FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 10 of32 different angles and proved the photographs as Ex.PW12/A1 to Ex.PW12/A8 and delivered them to IO/Inspector Vijay Pal Singh after getting them developed. The negatives of the said photographs were proved collectively as Ex.PW12/A9.
21. PW-13 HC Arvind Kumar deposed that on 14.04.2015, he joined the investigation of the present case with IO/Inspector Satbir Janula and in his presence the dead body was identified by deceased brother Subedar and uncle Sunderlal and after post mortem of the dead body, it was handed over to the aforesaid relatives of the deceased for cremation. Thereafter, doctor handed over sealed exhibits and sample seal to him and he handed over them to the IO, who had taken them into police possession in his presence vide seizure memo Ex.PW13/1. He proved the seizure memo of sealed exhibit of viscera of deceased as Ex.PW13/2 and seizure memo of sealed exhibit of tooth as Ex.PW13/3.
22. PW-14 SI Surender Singh deposed that on 04.05.2015, he alongwith Ct. Raj Kumar had joined the investigation of the present case alongwith IO / Inspector Satyavir Janula and they apprehended accused Raju S/o Sh. Shiv Lal. He proved arrest memo as Ex.PW14/1, personal search memo as Ex.PW14/2, disclosure statement as Ex.PW14/3. Information regarding arrest of accused was given to his wife Smt. Renu and he correctly identified the accused Raju in court.
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 11 of32
23. PW-15 SI Pawan Kumar was the police official who joined the investigation on 02.04.2015 with IO / Insp. Vijay Pal Singh. He deposed that no eye witness was present at the spot. On the basis of DD No.7A, SHO prepared rukka u/s 302 IPC and sent Ct. Raj Kumar to the PS for registration of the case. SHO called the crime team at the spot and got the spot inspected and photographed from different angles. SHO prepared the site plan of the spot in his presence. Inspector Vijay Pal Singh got blood sample, earth control and earth control with blood picked from the spot from two points in my presence and seized the same in his presence vide seizure memos Ex.PW15/1 and Ex.PW15/2. These exhibits were given serial No. A1, A2 and A3 and blood sample, earth control and earth control with blood were given serial No. B1, B2 and B3. The exhibit of broken pieces of quarter-bottles of liquor was given Mark-C and was seized vide memo Ex.PW15/3. A quarter bottle of Besto whiskey, 180 ml with bar code 8902108001328 was seized vide seizure memo Ex.PW15/4. A Can was seized vide memo Ex.PW15/5. The beer Can was given exhibit Mark E. One beer bottle of brand Kingfisher seized vide seizure memo Ex.PW15/6. The bicycle Atlas Goldline super was seized vide memo Ex.PW15/7. A Relaxo plastic slipper was also seized vide seizure memo Ex.PW15/8. One bamboo danda with length of 2 ft. and 7-8 inches with blood stains on it was found near the water tank inside the school and seized vide seizure memo Ex.PW-15/9. The articles of personal search of deceased were seized vide seizure memo Ex.PW15/10. Seal after use was handed over to him. One ambulance/hease van was called from district line by SHO and the FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 12 of32 dead body was sent to the mortuary of DDU hospital in the custody of Ct. Arvind. He identified the case property.
In cross-examination by Ld counsel for accused, he stated that there were three government schools near the spot. He did not call any guard of the said school to the spot. He did not remember whether IO had called any gurad from the said school. The school from which the wooden danda was traced, was not having any security guard. A temple was situated near the spot at a distance of 50-60 m. No person from the said temple was called to the spot and he denied all the suggestions.
24. PW-16 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. produced the computer-generated details i.e CAF of mobile no. 8417936202, 9990764513 and 9718372458. He proved the CAF and CDR of Mobile no. 8417936202 issued in the name of Arvind S/o Surender R/o Master Colony, Mohali, Sita Pur, U.P as Ex.PW16/1 and Ex.PW-16/2 respectively (OS&R). He proved the CAF and CDR of Mobile no. 9990764513 issued in the name of Sonu Kumar S/o Shiv Lal R/o H. No.76, Garhi, Tehsil, Misrikh, District Sitapur, UP as Ex.PW16/3 and Ex.PW-16/4 respectively. He proved the CAF and CDR of Mobile no. 9718372458 issued in the name of Bhagwan Deen S/o Machiko R/o D-44, D-Block, Kiran Garden, Uttam Nagar, New Delhi as Ex.PW16/5 and Ex.PW-16/6 respectively. He also proved certificate u/s 65 of Indian Evidence Act regarding the computer generation of said CDRs of said mobile numbers as Ex.PW16/7.
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 13 of32
25. PW-17 Retd. Inspector Vijay Pal Singh is the first IO of the case. He deposed about the proceedings conducted by him. He proved rukka as Ex.PW17/1, site plan as Ex.PW17/2 and deposed on similar lines to PW-15.
In his cross-examination by counsel for accused, he stated that he did not find any caretaker or chokidar in the school from which danda was recovered. He did not remember the distance of the mandir from the spot. It was visible but pujari was not there. He did not go to nearby liquor shops to verify the purchase of the liquor bottles and beer from those shops from their CCTV footage and denied all the suggestions.
26. PW-18 ASI Jagbir Singh deposd that he had joined the investigation in the present case alongwith IO Inspector Satbir Junela and Ct. Shamsher and during the same the accused Raju, who was already on police custody remand for 3 days. Accused Raju was further interrogated about the incident in question wherein he has disclosed about the weapon of offence i.e. iron rod, lying in truck number HR-69A-0725. They went to Dinesh Transport, Zakhira, Delhi where the said truck was found parked and the accused Raju produced iron rod from the cabin of the said truck by disclosing that the said iron rod was used by him for inflecting injuries to Ram Bahadur and after that the said rod was washed at a Dhaba while going towards Haridwar. The rod was seized vide seizure memo Ex.PW3/A and the truck was taken into police possession vide seizure memo already Ex. PW3/B. FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 14 of32
27. PW-19 Ct. Raj Kumar was the police official who joined the investigation on 02.04.2015, when dead body was found and also on 04.05.2015, when accused was arrested and deposed about investigation conducted by IOs in his presence.
In his cross-examination by Ld counsel for accused, he stated that near the spot there were two government schools, residential locality as well as Mandir and denied all the suggestions.
28. PW-20 Ct. Shamsher deposed that on 28.07.2015 on the instructions of the IO, he deposited the sealed exhibits in FSL vide RC No. 78/21/15 and handed over the acknowledgement to MHC(M).
29. PW-21 ASI Badan Singh was the MHC(M) of PS Bindapur. He proved the relevant entries regarding deposit of exhibits in malakhana and sending them to FSL as Ex.PW-21/A to Ex.PW-21/F.
30. PW-22 HC Shiv Ram deposed that on 29.07.2015 on the instructions of the IO, he deposited the sealed exhibits in FSL Rohini vide RC no. 82/21/15 and handed over the acknowledgement to MHC(M).
31. PW-22 ACP Satyavir Janaula was the second IO to whom investigation was marked and who conducted further investigation of the case.
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 15 of32
32. During the trial, accused admitted the copy of FIR as Ex.A-1, site plan as Ex.A2, FSL report No.2015/C-4973 dated 26.11.2015 as Ex.A3 and FSL report No.2015/B-5039 dated 03.02.2017 as Ex.A4.
33. On 16.01.23, as all prosecution witnesses were examined, therefore prosecution evidence was closed and matter was fixed for recording of statement of accused u/s 313 Cr. PC.
34. On 23.01.23, statement of the accused u/s. 313 Cr.P.C was recorded in which he stated that he is falsely implicated at the instance of police official and he does not want to lead defence evidence and matter was fixed for final arguments.
35. I have heard the arguments advanced by the Ld. Addl. PP for the State and Ld. Counsel for the accused and have perused the record.
36. During arguments Ld. APP submits that weapon of offence i.e. iron rod is recovered from the accused person and it is proved that accused called deceased to the spot and thereafter, he along-with co-accused Babloo (PO) hit the deceased with iron rod and bamboo on his face and head and killed him. The motive to commit murder is also present as the accused wanted to take revenge from deceased as he was having illicit relation with Guddi, who is grandmother of Reshma with whom marriage of Sonu i.e. brother of accused was fixed. Therefore, accused is liable to be convicted FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 16 of32 for the offence u/s. 302 IPC.
37. On the other hand, counsel Sh. L. S. Gautam from DLSA for the accused submitted that iron rod is planted on the accused and as per the doctor's opinion, injuries on the deceased body cannot be caused by the iron rod. Bamboo danda which is recovered from the school couldn't be connected with the accused Raju and also, eyewitness Monu did not support the case of prosecution and also all the public witnesses have deposed against the case of prosecution. Prosecution has failed to prove the motive of the accused to commit the murder as PW Sonu, Monu, Guddi and Reshma have denied that Sonu was engaged with Reshma or Reshma was having any relation with deceased. The prosecution has cooked up a false story and falsely implicated the accused just to work out the case. The accused is liable to be acquitted from the charges leveled against him.
APPRECIATION OF EVIDENCE Eye-witness Evidence
38. As per the case of the prosecution, PW-5 Monu was the eye-witness of the murder but perusal of his testimony shows that he did not depose anything about the incident in the court. Court cannot overlook the fact that PW-5 Monu is the real brother of the accused Raju and as such, an interested witness. Being the real brother of the accused, there is every reason for him to not support the case of prosecution and turn hostile.
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 17 of32 Except Monu, prosecution has not cited any other person as eye-witness of the incident.
39. It is well established legal principle that a witness may lie, but not the circumstances. It is not necessary to have an eye witness/ direct evidence in every case to prove who committed the crime. So, circumstantial evidence can be used to prove a person's guilt. During investigation of the present case, apart from the eye-witness PW-5, police also collected certain circumstantial material against accused persons, which are as follows :
- Accused called the deceased Ram Bahadur to the spot for party.
- Deceased was last seen by PW-1 Vishwas Chand to whom he told that he is going to meet Raju for partying.
- Recovery of Bamboo danda having blood stains of deceased.
- Recovery of Iron rod used to hit deceased from the truck at the instance of accused Raju.
- Motive to kill the deceased.
Circumstantial Evidence
40. As per Ex.PW-16/3 i.e. Customer Application Form (CAF) of mobile no.9990764513, it was issued in the name of Sonu Kumar, who is the brother of accused Raju and as per Sonu, his brother was using it. So, it is proved that accused Raju was using mobile no. 9990764513. Ex.PW-16/4 is the Call detail record (CDR) of the mobile no. 9990764513, which proves that from mobile no. 9990764513 call was made to mobile no. 7532863401 FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 18 of32 at 9:16 p.m. on 01.04.2015 for 86 seconds. Except this call, no other call was made between both the mobile numbers on 01.04.2015.
41. CDR and CAF of the mobile no.753283401 were made part of the charge-sheet but prosecution failed to prove them by getting them exhibited from concerned official of AIRCEL Company. Be that as it may be, CAF shows that it was issued in name of Guddi Devi and PW-7 Guddi Devi admitted in her deposition that deceased has got a mobile number issued in her name and this was not disputed by the accused during her cross- examination. A fact not controverted by the party is deemed to be admitted by party by necessary implication, so, it is admitted by the accused that mobile no. 753283401 was used by deceased.
42. CDR of mobile no 7532863401, which was used by deceased Ram Bahadur, from 15.03.2015 till 15.04.2015 is filled on the record and it shows that only one call was made from mobile no. 9990764513, which was used by the accused Raju, that to on 01.04.2015 at 9:16 p.m. and no other call was made between these two mobile numbers from 15.03.2015 till 15.04.2015. Only one call was made in 30 days that too only for 86 sec, this shows that accused and deceased were not well known or close acquaintances.
43. CDR along with Cell ID chart of mobile number 7532863401 shows that on 01.04.2015, all the calls were received or made from the mobile FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 19 of32 number 753283401 from Cell ID 405-800-104-5701, which correspond to location i.e. plot No. 17, Jain Colony, III, Uttam Nagar, Delhi. The deceased Ram Bahadur was staying at RZ-82, Jain Colony-II, Uttam Nagar, Delhi. This shows that on 01.04.2015, the deceased was either at his Barbar shop or jhuggi, as both are located nearby and falls within the range of same cell tower. When the last call received by deceased at 09:16 pm, as per location chart and Cell ID list, he was still at his shop or jhuggi.
44. But PW-1 Vishwas Chand deposed that deceased Ram Bahadur closed his shop at around 7:00 pm and told him at around 7:15 p.m. that he is going for party with Raju, who is coming to Matiala and he also deposed that deceased used to do party many a times with accused Raju. The deposition of PW-1 is contradicted by the CDR and Cell Id Chart on three accounts. Firstly, PW-1 said deceased left for party at around 7:15 pm but as discussed above, deceased was at his shop or jhuggi atleast till 09:16 pm. Secondly, CDR of mobile phone of deceased shows that from 15.03.2015 till 15.04.2015 only one call was made by accused Raju to the deceased, this shows that accused Raju and deceased were not well known or close acquaintances but PW-1 deposed that deceased and accused Raju used to do party many a times. Also regarding this part of his deposition that deceased and accused Raju used to do party many a times, PW-1 was also contradicted by his statement under Section 161 Cr.PC where same is not recorded. Thirdly, PW-1 said that deceased told him at 7:15 pm that accused Raju has come to Matiala and called him for party but CDR shows that FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 20 of32 accused Raju made only call that to at 09:16 pm, when call was made at 09:16 pm, then it is not possible that two hours before that deceased told PW-1 about the call and party.
45. PW-1, in his cross-examination, admitted that after one month of the incident, he told the IO for the first time about the fact that deceased told him about the meeting with accused Raju. No reason was given by PW-1 for not disclosing this fact to the IO at the earliest opportunity i.e when PW- 1 went to the police station for identifying the photograph of the dead body. A person can lie but documents cannot therefore more weightage is given to CDR of mobile phone of deceased which contradicts the PW-1. The only explanation for the contradictions in the deposition of PW-1 and his conduct i.e. delay in telling IO about deceased telling him about the meeting of deceased with accused Raju is that he is a planted witness by the police to fortify the case against the accused. This also appears to the reason why prosecution did not get the CDR and Cell ID location of mobile number 7532863401 proved on the record by the concerned official from the Aircel company as it was contradictory to the case of prosecution that deceased Ram Bahadur left his shop by 7:15 pm to meet accused Raju for celebration. So, the court has come to the conclusion that no weightage can be given to the testimony of PW-1.
46. The prosecution has also called CAF and CDR of mobile number 8417936202 and proved them as Ex.PW16/1 and Ex.PW16/2 respectively.
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 21 of32 Ex.PW16/1 proves that the mobile number was issued in the name of Arvind S/o Surender R/o Master Colony, Sitapur, Uttar Pradesh. CDR of mobile phone of deceased shows that he received a call from 8417936202 at 8:03 pm and it was the call previous to the last call received by the deceased from accused Raju. But in the complete charge sheet, there is no mention of mobile number 8417936202 or Arvind and only in the list of witnesses, at serial No. 25, this mobile number 8417936202 was mentioned along with the name of co-accused Babloo. So, as per list of witnesses, this mobile number was being used by co-accused Babloo.
47. If co-accused Babloo was using this mobile number, then police should have investigated registered owner of mobile number i.e. Arvind but no investigation was done from him. There is no mention of Arvind or mobile number 8417936202 throughout the charge sheet. As per Ex.PW16/1 i.e CAF (Customer Application Form) of mobile number 8417936202, the father's name of accused Babloo is Bhagwan Deen and he is residents of Village Bhopura, Ghaziabad, UP. The residence of Arvind and co-accused Babloo are different, even then, police did not inquire from Arvind or went to his address to enquire about co-accused Babloo and even didn't get proclaimed offender proceeding under sec 82 Cr.P.C conducted there. So, no connection could be established by prosecution between the co-accused Babloo and registered owner Arvind. Prosecution has failed to link mobile number 8417936202 with co-accused Babloo.
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 22 of32
48. In view of the above discussion, court has come to the conclusion that prosecution could not connect mobile number 8417936202 with co- accused Babloo, from which second last call on 01.04.2015 was made to the deceased. Prosecution could only prove that last call was received by the deceased from the mobile used by the accused at around 09:16 pm and at that time deceased was at his place. After the call from accused, deceased didn't receive any other call and was found dead but the contents of the call made by accused could not be proved. To prove that accused Raju called deceased to the spot for party, prosecution examined PW-1 but PW-1 can't be relied upon for the reason discussion done above and except PW-1 no evidence was brought to prove that accused Raju has called deceased Ram Bahadur to the spot where dead body of deceased was found.
Recovery of Bamboo Danda
49. As per the PM report Ex.PW2/A, the death was caused by head injuries subsequent to blunt force. PW-2 was the doctor, who conducted the postmortem and he specifically stated that the bamboo danda, recovered by the police, could have caused the facial injuries which caused the death. Ex.A-4 is the FSL report No. 2015/B-5039 dated 03.02.2017 which proves that blood of deceased was found on the bamboo road. The FSL report alongwith PM report and expert opinion of PW-2 proves that bamboo danda Ex.P-14 is the weapon of the offence, which was used in killing the deceased.
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 23 of32
50. But no evidence was brought to connect bamboo danda with accused Raju as neither it was recovered from the possession nor at the disclosure of accused Raju. Neither any fingerprints of accused Raju were found on the bamboo danda Ex.P-14 nor anyone saw bamboo danda in the possession of accused Raju. Therefore, prosecution failed to connect the bamboo danda i.e. weapon of offence with the accused Raju.
Recovery of Iron Rod
51. As per the prosecution, they recovered iron rod Ex.P-16 at the instance of accused Raju from the truck. As per FSL report No. 2015/B- 5039 dated 03.02.2017 i.e. Ex.A-4, on the iron rod, no blood of deceased was found. As per the case of prosecution, accused Raju washed the iron rod in some dhaba on his way to Haridwar, after committing the murder and this could be the reason for absence of blood of deceased on the iron rod. But PW-2 Dr. Anurag, who conducted the postmortem of deceased and prepared PM report Ex.PW2/A, has specifically given the opinion that injuries on the face and head of the deceased could not be caused with the iron rod, recovered at the instance of the accused.
52. Accused Raju is a truck driver and in every truck, there are iron rods which are used for various purposes like jacking the tyres, etc. So, it is normal that iron rod is found from the truck driven by the accused but in view of the discussion and in absence of any ocular evidence that Iron rod Ex.P-16 was used in hitting the deceased, it can be held that prosecution has FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 24 of32 failed to connect the iron rod with the murder of the deceased.
Motive
53. As per the case of prosecution, accused persons had a motive to kill deceased Ram Bahadur for the reason that Sonu, brother of accused Raju was previously engaged with Meenu i.e. sister of co-accused Babloo but Sonu called off the engagement and got engaged with Reshma, who is grand daughter of Guddi and with Guddi deceased Ram Bahadur was having illicit relation and which was putting bad influence on Guddi. Now let us see whether prosecution has been successful in proving the motive for committing the murder.
54. PW-4 Sonu was, as per the prosecution, previously engaged with Meenu and after that, he was engaged with Reshma but in court, he specifically denied that his marriage was anytime fixed with Meenu and same got called off. PW-8 Reshma denied that she was engaged with Sonu and she also denied knowing accused Raju or having ever met accused Raju. PW-7 Guddi Devi did not depose anything about engagement of her granddaughter Reshma with Sonu or knowing accused Raju.
55. Except the above witnesses, prosecution has not examined any other witness or brought on record anything to show that Sonu was previously engaged with Meenu or Sonu got engaged with Reshma and Guddi was having illicit relation with deceased because of which accused persons FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 25 of32 decided to kill Ram Bahadur. Not an iota of evidence was brought on record to prove the motive of the accused as alleged by the prosecution.
56. The findings on the various facts in issue recorded thus far in the judgment may be summarized as under:
(i) Prosecution proved that deceased Ram Bahadur received last call from accused Raju.
(ii) Prosecution failed to prove that accused called deceased Ram Bahadur for party.
(iii) Prosecution failed to connect mobile number 8417936202 with co-accused Babloo.
(iv) Prosecution proved bamboo danda used is the weapon of offence but failed to connect it with accused Raju.
(v) Prosecution failed to prove iron rod as weapon of offence.
(vi) Prosecution failed to bring any evidence regarding the alleged motive of the accused persons.
57. In para 12 of "Hanumant Vs. The State of Madhya Pradesh" AIR 1952 SC 343 it has been held by Hon'ble Supreme Court of India that :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 26 of32 reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. .........................."
58. After doing close analysis of Hanumant (supra), the Hon'ble Supreme Court of India in "Sharad Birdhi Chand Sarda Vs State of Maharashtra" 1984 AIR 1622 gave five golden principles which constitutes the panchsheel of the proof of a case based upon circumstantial evidence as follows :
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) 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 explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency
(iv) They should exclude every possible hypothesis except the one to be proved and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 27 of32
59. In the present case there is no ocular evidence as sole eye-witness PW-4 has turned hostile. Only circumstance which prosecution is able to prove is that last call received by the deceased before his murder was from the accused Raju and weapon of offence bamboo danda was recovered but it was not connected with accused Raju. The position of the law is that circumstantial evidence must be commensurate with no interpretation other than the guilt of the accused and all links in such circumstantial evidence ought to be proved beyond reasonable doubt. However, in the present spectrum of evidence, the circumstances suffer critical omissions/loop holes which operate in favour of the accused. There is no cogent evidence on record to prove that accused Raju met the deceased or was present at the spot at the same time when deceased was present and to prove motive of the accused or committed the murder of the deceased.
60. Before parting with the judgment court will like to point out serious lacunae in the investigation. No efforts were made by them to search for an independent eye witness or in collecting evidence in showing the presence of the accused at the spot. Ex.PW17/2 is the site-plan and it clearly shows that dead body was found in a busy road, which connects main Najafgarh road to the Matiala Village. On the either side of the road, there are three government schools and there is a Shiv Mandir, which as per deposition of PW-15 and PW-17, was at a mere distance of 50-60 meters from the spot, where dead body was found. The site-plan shows that at the same distance, i.e. of 50-60 meters, there are shops and residential areas. So, Ex.PW17/2 FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 28 of32 i.e. site-plan shows that spot where dead body was found is busy road and heavily populated and is in a residential area.
61. In residential areas, parking of truck is not a usual or a normal thing. Photographs of truck No. HR-69A-0725 shows that it is a very big truck and in case, it was parked in such a busy road in residential area, it must have been noticed by some neighbour. There were three government schools and definitely there must be chowkidar in those schools and it is possible that if truck was parked in front of schools then anyone of the chowkidars must have noticed the truck or its number but no investigation was conducted from those chowkidars. A shiva temple is also located in the vicinity of the spot and people, who were visiting the temple or the priest must have also noticed the truck but no efforts were made by the police to examine them. Few shops were also near the spot where deadbody was found but no efforts were made to enquire from shopkeepers or check CCTV, if any, installed there.
62. As per the prosecution, accused Raju, after loading the truck, brought it to the Matiala and committed murder of deceased there and went to Mujaffar Nagar to unload the truck. No investigation was done from which place the material was loaded in truck and in case it was located nearby to Village Matiala, where dead body was found, then it would have fortified the case of prosecution. Neither the place from where the truck was loaded was identified nor at what time it was loaded and what time left the place FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 29 of32 was investigated by the police. Additionally, on way from Delhi to Mujaffar Nagar, number of toll taxes must be paid by truck, which could have proved the timeline at which the truck have left Delhi and crossed various places. If all the above aspects were investigated then it would have proved the time line of truck No. HR-69A-0725 i.e. at what time truck was at which place and whether it was at the spot, during the period murder of Ram Bahadur was committed.
63. Further, as per the prosecution, accused Raju called deceased Ram Bahadur to the spot and there accused Raju and Babloo along with deceased Ram Bahadur had drinks and from the spot empty bottles of Besto Whiskey, Can of Kingfisher strong and Haywards 5000 and empty bottle of Kingfisher Beer were found. The seizure memo of empty bottle of Besto Whiskey i.e. Ex.PW15/4 shows that bar code No. 8902108001328 was mentioned on it. With the help of this bar code, police could have easily located the shop from where it was purchased and by whom it was purchased. Normally, two or three wine and beer shops are located in a vicinity. If the wine and beer shop, from where the bottle was purchased, would have been located then their CCTV cameras could have been checked and it could have been found that whether accused have purchased it. The above aspect would have fortified the case of prosecution but no investigation was done on this line.
64. This now brings us to the fag end of the judgment. After a detailed FIR No. 473/15 P.S. Bindapur State V/s Raju & Anr. Page 30 of32 discussion of the evidence, the circumstances of the case and law on circumstantial evidence shows that the five golden principles enunciated in Hanumant case (supra) and Sharad Birdhi Chand case (Supra) have not been satisfied in the present case. Appreciation of evidence shows that Prosecution is only successful in showing that a single call of 86 seconds was made from the mobile used by the accused to the mobile used by deceased and that was the last call received by the deceased. Prosecution recovered bamboo danda, which was used to kill deceased but same was not connected with the accused Raju. Except these, no other evidence could be proved on record against the accused Raju. Also, all the public witnesses except PW-1 has turned hostile and did not support the case of prosecution and only witness, who supported the case of prosecution, to some extent, was PW-1 and he appears to be a planted witness. Prosecution also failed to prove the motive of accused persons to commit the offence.
65. In "Kali Ram Vs. State of Himachal Pradesh" 1973 AIR 2773 Hon'ble Supreme Court made the following observations :
"Another golden thread which runs through the web of the 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 view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
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66. It is cardinal principle of criminal jurisprudence that the guilt should be proved beyond any reasonable doubt that a reasonable man with ordinary prudence can have. There should be no doubt whether the accused is guilty or not. If there is slightest doubt, no matter how small it is, the benefit will go to the accused. Prosecution has failed to prove complete chain of evidence which can lead to the sole conclusion that accused presons have committed the murder of the deceased Ram Bahadur.
67. In view of the discussion above, the court has come to conclusion that serious doubts have been raised over the prosecution story and benefit of reasonable doubt is to be given to the accused persons. The accused persons are acquitted of the charge under section 302/34 IPC.
68. In view of the above discussion, PO proceedings against accused namely Babloo is hereby recalled as no evidence has been brought on record against him also. Concerned SHO be notified about the recalling of PO proceedings.
69. All bonds except the bonds under Sec.437A Cr.PC are discharged.
70. File be consigned to Record Room after due compliance.
Announced in open Court today (Vipin Kharb)
on 03.02.23 Additional Sessions Judge-04
South-West, Dwarka Courts,
New Delhi
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