Delhi District Court
State vs . on 17 September, 2012
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 74/10
FIR No. : 888/03
P.S. : Rohini
U/s : 302/201/34 IPC
Date of registration : 03022004
Reserved for Judgment on: 22082012
Judgment Announced on : 17092012
State
Vs.
1. Bhagwati W/o Bhagola Rehakavar
R/o Village & P.S. Gul Ganj,
District Chhaterpur, (Madhya Pradesh).
2. Virender S/o Bhagola Rehakvar
R/o Village & P.S. Gul Ganj,
District Chhaterpur, (Madhya Pradesh).
JUDGMENT
1. Briefly stated the facts of the case are that on 08102003, SSI V.K. Sharma received an information from Sanjay Gupta, Station Superintendent of Dehradun bus depot about a dead body lying in the premises. SSI V.K. Sharma Sessions Case No. : 74/10 Page 1 of 43 2 alongwith ASI Satyaveer Singh and other staff reached at the spot i.e Rodways bus stand Dehradun where a male dead body was found lying in a gunny bag. Inquest proceeding was conducted; dead body was photographed; recovery memos were prepared and the dead body was sent to mortuary. A button was found in the right hand of the dead body and one STD slip was also found in the pocket of the dead body on which some telephone numbers were written. SSI V.K. Sharma made a call on the telephone number mentioned on the STD receipt and talked to one Raghuvir and Ganesh and told them about the description of the dead body who on 10102003, came and identified the dead body as that of Shyam Rehakwar and the dead body was handed over to them. On inquiry it was allegedly revealed that the deceased used to live in Delhi with accused Bhagwati and had relationship with her. It is was further allegedly revealed that Bhagwati was a widow and both deceased and Bhagwati used to work as labourer in Delhi. It is alleged that in the meantime Jyoti daughter of accused Bhagwati became a young girl. Shyam (since deceased) used to have an evil eye on Jyoti. Bhagwati tried to stop deceased Shyam but he did not mend his ways. It was told by Raghuvir and Ganesh that Sessions Case No. : 74/10 Page 2 of 43 3 Bhagwati came to their village and told that if Shyam (deceased) did not mend his ways, she would kill him. Police team alongwith Raghuvir and Ganesh came to Delhi and at their instance the accused persons i.e Bhagwati and her son Virender were arrested from Ward No. 21, H. No. 168, Raj Nagar, Safdarjung Enclave, New Delhi.
2. F.I.R. bearing No. 888/03 was registered at P.S. Rohini and investigation went underway. Accused persons were arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
3. On 02082004, a charge U/s 302/201/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused persons, the prosecution examined as many as 33 witnesses.
5. PW 1 H.C. Hari Kishan is the duty officer. He proved the copy of the FIR as Ex. PW 1/A and his endorsement on the rukka as Ex. PW 1/B.
6. PW 2 H.C. Jagbir Singh is the MHC(M). He deposed Sessions Case No. : 74/10 Page 3 of 43 4 about the depositing of the exhibits of the case in the malkhana; sending the exhibits to the FSL Malviya Nagar; receiving of the exhibits from FSL and the relevant entries made by him in register No. 19. He proved on record entry No. 2535 of the malkhana register as Ex. PW 2/A with regard to the exhibits deposited in the malkhana on 3122003. He further proved on record entry with regard to sending the exhibits to FSL Malviya Nagar vide RC No. 229/21 on 9122003 as Ex. PW 2/B. He further proved on record the entry with regard to receiving the 8 pullandas from FSL and depositing the same in the malkhana as Ex. PW 2/C. He also proved on record the copy of RC No. 229/21 as Ex. PW 2/D.
7. PW 3 Jagdish Prasad is the material witness. I will discuss his testimony in the later part of the judgment.
8. PW 4 Sanjay Gupta is the Station Supdt. Uttranchal Transport Corporation Dehradun. He deposed that on 8102003, at about 3:30 p.m one of their conductors Ved Parkash came to him and informed him that a "Bora" was lying on the right side of parking lot where the buses are parked and it appears that some dead body was in the "Bora". He further deposed that he immediately went there alongwith other staff members. He Sessions Case No. : 74/10 Page 4 of 43 5 observed the Bora from a distance of about 12 meters and felt something suspicious and informed the police in the regard. He also deposed that he informed two constables who were present on road near the depot. He further deposed that police reached there and he told everything to the police and when police opened the "bora", the dead body was found in it. Thereafter he returned to his office. Subsequently he was interrogated by some officers of Delhi Police and he told them everything.
9. This witness was cross examined by the Ld. APP and in his cross examination he admitted it to be as correct that SI V.K. Sharma came to the depot from PS Kotwali Dehradun. He further admitted it to be as correct that he had pointed out the place from where the dead body was recovered to the said SI. He further admitted it to be as correct that he prepared a site plan in that regard. He further stated that as he does not remember, he cannot say if his statement was recorded by Delhi Police officers on 3122003.
10. PW 5 is Sh. Anoop Singh. He deposed that he does not remember the date or month of the incident but it was in the year 2003. He used to work in a STD Booth at the bus depot (Gramin Depot) Dehradun. He further deposed that a dead body in a bora Sessions Case No. : 74/10 Page 5 of 43 6 had been found in the bus depot. He alongwith the station in charge and other persons went near the dead body. Police officers had also reached there. The police officers opened the bora and the dead body was recovered from a polythene inside the bora. He further deposed that he was made to run away from the spot. He further deposed that police subsequently brought a document and obtained his signatures and of other shopkeeper on the same. He further deposed that his statement was only recorded by the police regarding the recovery of the dead body.
11. This witness was declared hostile and cross examined by the Ld. APP but nothing material could be extracted from his cross examination.
12. PW 6 Mohd. Ibrahim deposed that he does not know anything abut this case and he had not seen anything. He further deposed that police obtained his thumb impression on a blank paper. He further deposed that he does not know anything about contents of the document Mark P6A on which his thumb impression appears at point MarkX.
13. PW 7 Mohd. Inam deposed that he used to work at Delhi Bus stand, Dehradun in a fruit juice and cold drink shop. He Sessions Case No. : 74/10 Page 6 of 43 7 further deposed that it was about one and a half year back, he was standing at his shop and performing his duty. A police vehicle came there. The police officers asked his name and address. He told the same to the police. He further deposed that he does not know anything else about this case and had not signed on any document. On a court question he replied that yes his signatures appear on documents P5B, C, D and E at portion encircled red Mark Y. On a further court question, he replied that he does not know anything about the contents of these documents and nothing was seized by the police in his presence.
14. PW 8 SI Manohar Lal is the draftsman. He prepared the scaled site plan and proved the same as Ex. PW 8/A.
15. PW 9 is W/HC Poonam Tyagi and on 3122003, she alongwith SI Jaipal, Ct. Vijender and Ct. Pranveer had gone to Dehradun in connection with the investigation of this case. She deposed that ten pullandas were received by SI Jaipal Singh from MHC(M) PS Kotwali and some documents might have been prepared in that regard by SI Jai Pal.
16. She further deposed that thereafter they went to Dehradun Court and orders were obtained from the Ld. Court to bring the accused persons to Delhi. Thereafter they went to the Sessions Case No. : 74/10 Page 7 of 43 8 local jail. Both the accused were arrested vide arrest memos which PW 9 proved as Ex. PW 9/A and Ex. PW 9/B.
17. This witness was declared hostile and cross examined by the Ld. APP and in her cross examination by the Ld. APP she admitted it to be as correct that nine sealed pullandas and one sample seal were received from MHC(M). PS Kotwali Dehradun. He further admitted it to be as correct that the said articles were seized vide seizure memo Ex. PW 9/C.
18. PW 10 is Vishal Aggarwal. He deposed that he does not know anything about the present case. He further deposed that about 34 years back while he was running a shop at Bus Stand Road, Dehradun, police had obtained his signatures on some blank papers. He had singed the blank papers under pressure of police. He does not know anything else.
19. This witness was declared hostile and cross examined by the Ld. APP for the state but nothing material could be extracted from his cross examination.
20. PW 11 is constable Vijender Singh who on 23112003, was deputed as Special Messenger and delivered the special messages to the Ld. Illaqua Magistrate, Range IG, DCP, Addl. DCP and the ACP in their offices.
Sessions Case No. : 74/10 Page 8 of 43 9
21. He further deposed that on 3122003, he again joined the investigation of this case and he alongwith SI Jaipal Singh, Ct., Paranveer and Lady HC Poonam went to Dehraddon. They went to PS Kotwali Dehradoon where the MHC(M) handed over some pullandas to SI Jaipal. The same were seized vide seizure memo. He further deposed that thereafter they went to courts in Dehradoon and SI Jaipal received transfer orders in respect of the accused form the Ld Judge. Then they went to the prison Dehraddon where accused Bhagwati and Virender were present. After completing the transfer formalities, the accused were brought to Delhi. Arrest memos of the two accused were also prepared in Dehradoon. The arrest memos are Ex. PW 9/A and B. He further deposed that accused persons were got medically examined after reaching Delhi and then put in lock up at PS Shalimar Bagh.
22. PW 12 Dr. Anil Arya conducted the postmortem. He proved on record postmortem report No. 562/03 dated 9102003 on the judicial file as Ex. PW 12/A. He deposed that the postmortem was conducted by him on 9102003 and the time since death was 2 to 3 days and Cause of death was shocked and hemorrhage as a result of antemortem injuries. Sessions Case No. : 74/10 Page 9 of 43 10
23. PW 13 Ashok Kumar is the photographer. He took the photographs of the dead body and proved on record the photographs as Ex. PW 13/A1 to A5 and the negatives as Ex. PW 13/B collectively.
24. On a leading question put by the Ld. APP this witness stated that as he does not remember, he cannot say if he had taken these photographs on 8102003.
25. PW 14 is Sh. Mohd. Mobin who used to work as a collie at Rodways Bus Stand, Dehraddon. He deposed that he does not remember the date or month but it was about two years back. He further deposed that when he came for his duty, he came to know that a dead body was recovered from a bora in the Bus Area. He further deposed that at about 8 p.m police from PS Kotwali came and noted down his name and particulars. He further deposed that subsequently, police from Delhi had also come there and had noted down his name and particulars. Police had also obtained his signatures on some papers, details of which are not known to him. He further deposed that he was also taken by the police to PS Kotwali where a punchanama was prepared and portion encircled Red (Ex. PW 14/A) on the said punchamama is in his handwriting and bears his signatures at Sessions Case No. : 74/10 Page 10 of 43 11 point mark X.
26. This witness was cross examined by the Ld. APP for the State but nothing material could be extracted from his cross examination.
27. PW 15 is Raghbir who on receiving the information about the murder of his younger brother Shyam went to Dehradun and identified the dead body of his brother Shyam. He had taken the dead body of his brother against receipt and thereafter cremated the same.
28. He further deposed that after cremation, he alongwith the police came to Delhi in police vehicle. Firstly they went to Birla Mandir where some of his covillagers lived. He met Tejwar Ikwar who took him alongwith police to the place where his brother used to live in Delhi. Accused Bhagwati and her son Ram Dass were arrested by the police in his presence. This witness identified accused Bhagwati and also identified accused Virender and claimed him to be Ram Dass. He further deposed that both the accused, police and he himself went to Dehradun. The accused had admitted their guilt and thereafter he went back home and he does not know anything else.
29. This witness was declared hostile and cross examined Sessions Case No. : 74/10 Page 11 of 43 12 by the Ld. APP for the State.
30. PW 16 H.C. Pyare Lal deposed that on 19122003, he was posted as a Ct. in PS Rohini. On that day he had received many pullandas of this case alongwith FSL form from the MHC(M) for being deposited in FSL Malviya Nagar. He had taken the same vide road certificate No. 229/21/03. He further deposed that he had deposited the pullandas in FSL Malviya Nagar.
31. PW 17 Mohd. Mustkim deposed that on 8102003, he was present at bus stand, Gramin, Dehradun as he was coolie at that stand. He further deposed that on that day, one dead body was recovered which was kept in a gunny bag. Police enquired about the dead body and he joined the investigation and he put his thumb impression at point "A" on Punchnama Ex. PW 17/A. He further deposed that there was a cut mark on the neck of deceased.
32. PW 18 Mohd. Rafiq deposed that he was working as a coolie on 08102003 at bus stand, Gramin Dehradun. On that day, he was present at bus stand towards the gate. He further deposed that he came to know that an unknown dead body had arrived at bus stand, Dehradun. He had not seen the dead body. He further deposed that he does not know about any dead Sessions Case No. : 74/10 Page 12 of 43 13 body nor does he know as to how any dead body had arrived there. The police had noted down his name and they had also obtained his signatures which he did in Urdu. He further deposed that he did not put his thumb impression on any paper.
33. This witness was declared hostile and cross examined by the Ld. APP for the state but nothing material could be extracted from his cross examination.
34. PW 19 Ismail deposed that on 08102003, he was working as coolie at bus stand Gramin Dehradun. On that day, he was present at bus stand. He further deposed that he had not seen the dead body nor did he came to know about any dead body. Police had obtained his thumb impression on a piece of paper. He had seen his thumb impression at point A1 on Ex. PW 17/A. He further deposed that he does not known anything else and does not want to say anything else.
35. This witness was declared hostile and cross examined by the Ld. APP for the state but nothing material could be extracted from his cross examination.
36. PW 20 Ganesh is the material witness and I will discuss his testimony in the later part of the judgment.
37. PW 21 Wct. Poonam Baluni is the witness to the arrest of Sessions Case No. : 74/10 Page 13 of 43 14 the accused persons and the recovery of knife. In her presence on 15102003, accused Bhagwati and Virender were arrested vide arrest memo Ex. PW 20/A at the instance of public witness Raghuvir Rehmar and Ganesh Presad Rehwar from house No. 168, Block No. 21, Raj Nagar, Safdarjung Enclave, New Delhi.
38. PW 21 deposed that accused Bhagwati confessed that she alongwith her son had killed Shyam Rehakwar with the knife (chura) and the blood stained knife (chura) had been hid in the heap of garbage (kachre Ka dher) near a vacant plot i.e E81, Vijay Vihar, PhaseII, Sector 4, Rohini, Delhi and they confessed to get the same recovered.
39. PW 21 further deposed that thereafter they alongwith the accused went to the above said place at their pointing. SSI V.K. Sharma requested some public persons and nearby resident to join the investigation, but nobody agreed. She further deposed that accused Bhagwati pointed towards the heap of garbage (kachre ka dher) and at about 4:15 pm, one blood stained knife (chura) was recovered by which she killed Syam Rehakwar with the help of her son at E81, Vijay Vihar, PhaseII, Sector4, Rohini, Delhi. The knife (chura) was taken into police possession and the same was wrapped in a cloth and was sealed. The Sessions Case No. : 74/10 Page 14 of 43 15 seizure memo of the knife (chura) is Ex. PW 20/C. She further deposed that SSI V.K. Sharma also lifted the blood stains in a cotton (rui). The same was taken into police possession. She identified the Chura wrapped in cotton/rui as Ex. PX.
40. PW 22 H.C. Ashvir Sharma, PIO Dehradun Center, Uittranchal deposed that on 09102003, he was posted at PS Kotwali, Dehradun as MHC(M). He further deposed that on that day SSI V.K. Sharma deposited 09 items and 07 number of seal samples vide GD No. 19 dated 09102003 in case FIR No. 478/03 PS Kotwali U/s 302/201 IPC. He further deposed that on 03122003, SI Jai Pal Singh of PS Rohini, Delhi was handed over all the above said items with seal samples under his signatures on their register of Malkhana, PS Kotwali, Dehradun. He proved on record the photocopy of the GD of their register of the malkhana as Ex. PW 22/A. He further deposed that they had given all the above said items and seal samples to SI Jai Pal Singh by separate memo which was signed by SI Jai Pal Singh of PS Rohini as the same are case property which are required for investigation in case FIR No. 888/03 PS Rohini U/s 302/201/34 IPC, he proved the same as Ex. PW 22/B.
41. PW 23 H.C. Pranvir Singh deposed that on 3122003, Sessions Case No. : 74/10 Page 15 of 43 16 he was posted at PS Rohini and on that day he alongwith IO SI Jai Pal Singh, Ct. Bijender, WHC Poonam went to Dehradun and reached at Kotwali where they met the police personnel Ashvir Sharma MHC(M) Dehradun Kotwali and he handed over 10 pullandas duly sealed with the seal of AKUPP including the seal sample, which were taken in pullnda vide seizure memo Ex. PW 9/C. He further deposed that accused Virender and Bhagawti were arrested vide arrest memo Ex. PW 9/A and B respectively.
42. PW 24 is constable Manoj Patwal. He was posted at P.S. Kotwali Dehradun Uttrakhand on 14102003. He remained associated with IO SI V.K. Sharma during the investigation of the case. He deposed that he alongwith SI V.K. Sharma and constable Poonam came to Delhi on 15102003 and reached at Safdarjung Enclave, Delhi at the instance of Raghubir and Ganesh who were with them from the police station. They disclosed that one keep of deceased ( a lady with whom deceased Shyam having illicit relations) was residing in the area of Raj Nagar, Safdarjung enclave, Delhi. They suspected aforesaid lady and his son as killer of deceased.
43. PW 24 further deposed that on reaching at the house of aforesaid lady, at the instance of Raghubir and Ganesh they Sessions Case No. : 74/10 Page 16 of 43 17 interrogated aforesaid lady Smt. Bagwati and son Virender in presence of Raghubir and Ganesh. He further deposed that both the aforesaid accused accepted their guilt disclosing facts of this case and they further disclosed that they can get recovered weapon of offence, and wearing clothes having blood stains etc. SI recorded disclosure statement of Bhagwati and Virednder. PW 24 proved the disclosure statement of accused Bhagwati as Ex. PW 24/A and that of Virender as Ex. PW 24/B. Thereafter aforesaid SI arrested both the accused persons and prepared arrest memo Ex. PW 20/A.
44. PW 24 further deposed that Accused Bhagwati led them in a vacant plot at Rohini Delhi in pursuance of disclosure statement. One heap of garbage was pointed out by accused Bhagwati and from that on "Chura" was taken out by her, same was produced before IO saying that it is a weapon of offence which was having blood stains. IO had prepared seizure memo Ex. PW 20/C. PW 24 further deposed that IO prepared the site plan of aforesaid place at the instance of accused persons which he proved as Ex. PW 24/C.
45. PW 24 further deposed that accused Virender got recovered his one shirt from the aforesaid room upon which Sessions Case No. : 74/10 Page 17 of 43 18 blood stains were noted. It was told by accused Virender that the said was worn by him at the time of murder of deceased Shyam. The said shirt was seized by then IO by converting the same in a parcel and sealing vide memo Ex. PW 20/D. He further deposed that the third button of the shirt of accused Virender was found missing broken at the time of seizing. He further deposed that from the spot i.e room of ground floor of the hosue some blood stains were noticed on the floor. IO took into possession the blood smeared concrete and earth control from there which was converted into two parcel and seized vide seizure memo Ex. PW 15/D. PW 24 identified the case property.
46. PW 25 constable Vijay Singh was on duty as duty officer (constable Clerk) at police station Kotwali Dehradun Uttrakhand on 08102003. He proved on record the carbon copy of the FIR No. 380/03 as Ex. PW 25/A. He had also made GD No. 39 at about 4:35 p.m in GD register in connection of registration of murder case FIR and proved the copy of the same as Ex. PW 25/B.
47. PW 26 is H.C. Devender Kumar Bharti who on 08102003, was posted at PS Kotwali, City Dehradun, Uttrakhand and on that day he had joined the investigation of the Sessions Case No. : 74/10 Page 18 of 43 19 case alongwith Ct. Sher Singh, ASI Satya Veer Singh. He further deposed that on that day on receiving the information regarding lying of a male dead body inside the roadways bus stand they reached there and noticed one dead body lying there. He further deposed that ASI Satya Veer Singh had completed the inquest proceedings. He and constable Sher Singh took the dead body for postmortem to mortuary of Doon Hospital, Dehradun alongwith the relevant papers and they got deposited the dead body there. He had handed over the inquest documents Ex. PW 26/A, Ex. PW 26/B, PW 26/C, PW 26/D, PW 26/E etc to the postmortem conducting department. Postmortem was conducted on 09102003 vide PM report Ex. PW 12/A. He further deposed that the dead body was got photographed during inquest proceedings. Photographs Ex. PW 13/A1 to PW 13/A5 were shown to the witness and on seeing the same he submitted that the same are depicting the same dead body. He further deposed that on 10102003, the relative of deceased identified the dead body as that of Shyam and on 11102003 the dead body was released for cremation in favour of legal heirs and relatives of the deceased.
48. PW 27 Ct. Sher Singh also deposed more or less on the Sessions Case No. : 74/10 Page 19 of 43 20 same lines as deposed by PW 26 H.C. Devender Kumar Bharti. In addition to what has been deposed by PW 26, he deposed that on 10102003, one Raghubir, brother of deceased and uncle of deceased whose name he could not tell came to mortuary and identified the dead body. He also deposed that two sealed envelope had been handed over to him by PM conducting doctor and the same were delivered to the Head Moharir by him.
49. PW 28 SI V.K. Sharma, Police Officer Dehradun, Uttranchal is the first IO of the case. He narrated the sequence of investigation done by him. He proved on record the seizure memo of a STD receipt which was found in the right pocket of the pant of the deceased on which some telephone numbers were written as Ex. PW 28/A. He also proved on record the complete proceedings of the FIR No. 380/03 PS Kotwali, Dehradoon i.e search, seizure, recovery and weapon of offence memos collectively as Ex. PW 28/A. He also proved on record the site plan of the place where the dead body was found in Dehradun as Ex. PW 28/B. He identified the case property.
50. PW 29 ASI Mohd Swaley deposed that on 02.01.2004 he was posted at PS Rohini and on that day as per directions of SHO he had gone to District Sagar, Madhya Pradesh and Sessions Case No. : 74/10 Page 20 of 43 21 accordingly he reached there on 03.01.2004. There he recorded statements of Raghubir Rakhwal and Dinesh Prasad Rakhwal u/s 161 Cr.P.C and after recording said statements he returned to PS Rohini and handed over the said statements to SHO.
51. PW 30 Retired SI Ramphal deposed that on 23.12.2003, he was posted in PS Rohini as ASI. On that day the then SHO Inspector Krishan Kumar handed over him a notice u/s 160 Cr.P.C to get the same served SSI Shri VK Sharma Dehradun. He also handed over the case file to him. PW 30 further deposed that accordingly, he got served the notice through MHC(M) at Dehradun Kotwali on SSI VK Sharma. He also recorded the statement of W constable Poonam and constable Manoj. Thereafter, he returned to PS Rohini.
52. He further deposed that on 31.12.2003 he again went to Dehradun, and requested SSI VK Sharma to join the investigation so that scaled site plan can be prepared. Thereafter, he reached at Saharanpur Chowk from where he collected the photographs with negatives from Ajit Photo studio. Same are already Ex.A1 to Ex.A5. He recorded the statement of photographer Ashok Kumar. After that he returned to Delhi and he handed over the case file alongwith statements of witnesses, Photographs and Sessions Case No. : 74/10 Page 21 of 43 22 negatives to the SHO.
53. PW 31 SI Satyavir Singh deposed that on 08.10.03, he was posted as ASI in PS Kotwali, Dehradoon. On that day, Sanjay Gupta, station superintendent of Roadways bus stand, Dehradoon gave the information that a dead body was lying in jute bag in Dehradoon bus stand. On receiving this information, he along with Inspector of PS Kotwali Dehradoon V.K. Sharma and two other officials reached at the spot. The jute bag was lying on the south side of the bus stand. It was opened and found a body of male. The panchayatnama of the body was filled by him. He proved the same as Ex.PW31/A.
54. He further deposed that from the personal search of the dead body, one khakhi button, one receipt of STD, one match box were found. The same were sealed by the SHO and when the call was made on the phone mentioned in the receipt which was recovered from his pocket, the relatives of the deceased came. During that span of time, the body was sent to the hospital in the custody of Ct. Devender and Sher Singh in Doon hospital, Dehradoon.
55. PW 32 Inspector K.K. Sharma deposed that on 23.11.03, he was posted as SHO, PS Rohini. On that day, a case u/s. Sessions Case No. : 74/10 Page 22 of 43 23 302/201/34 IPC was registered in PS Rohini vide FIR no.888/03. The said FIR was registered on the basis of documents received from Inspector General of Police, Dehradoon from the office of I.G. Dehradoon, copy of FIR no.478/03 u/s. 301/201 IPC, PS Kotwali, Dehradoon and other documents i.e. seizure memo, recovery memo, inquest papers, siteplan and other relevant memos/ papers were received.
56. He further deposed that on 01.12.03, he deputed SI Jaipal to get the custody of accused persons from PS.Dehradoon and directed to record the supplementary statement of the police officials of PS Dehradoon who had joined the investigation of case FIR no. 478/03, PS Kotwali, Dehradoon.
57. On 03.12.03, SI Jaipal arrested both the accused persons vide memo already Ex.PW9/A and Ex.PW9/B with the permission of the court concerned from Dehradoon and seized ten articles in the present case which have already been seized by MHC(M) of PS Kotwali. The same were seized in the present case in the sealed condition vide memo already Ex.PW9/C.
58. He further deposed that the statement of witnesses were recorded. He further deposed that on 09.01.04, at the instance of V.K.Sharma, SI Manohar Lal took the rough notes and Sessions Case No. : 74/10 Page 23 of 43 24 measurement of the place of occurrence who thereafter, prepared the scaled siteplan already Ex.PW8/A. Exhibits were got deposited in FSL, Rohini through Ct. Babulal and after completion of investigation, he filed the charge sheet. He proved the report of FSL, Rohini which was collected subsequently as Ex.PW32/A.
59. PW 33 Inspector Jaipal Singh deposed that on 02.12.03, he was posted in PS Rohini as I/C PP Vijay Vihar. On 03.12.03, he along with the police officials reached at Police Kotwali Dehradun where MHC (M) of PS Kotwali Dehradun namely Aarshvir Sharma met them and handed over nine sealed parcels of the present case along with sample seal to him which he seized vide memo already Ex.PW9/C.
60. He further deposed that in PS Kotwali Dehradun, he recorded statements of ASI Satbir Singh and SSI V.K. Sharma. Thereafter, he went to Bus Stand Dehradun where conductor Ved Prakash and superintendent Sh. Sanjay Gupta of bus stand met him there. They were joined in the investigation and their statements were recorded. At the bus stand Mohd. Mobin, Vishal and Mohd. Ibrahim met him. They were also joined in the investigation and their statements were recorded.
61. He further deposed that thereafter, he along with his Sessions Case No. : 74/10 Page 24 of 43 25 staff went to the court concerned at Dehradun and with the permission of the court concerned at Dehradun, both the accused were arrested in jail vide arrest memo Ex.PW9/A and Ex.PW9/B. A request was made in the arrest memo that the custody of accused persons be transferred to Delhi. After taking the custody of both the accused persons, they returned to Delhi and accused were produced before court concerned. Thereafter the case file was handed over to Inspector K.K. Sharma.
62. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated in this case. No evidence in defence was led by the accused persons.
63. I have heard Ld. APP for the State and the Ld counsel for the accused persons and have also gone through the records of the case.
64. It is submitted by the Ld. APP that on the basis of the evidence recorded and the material on record accused persons be convicted.
65. On the other hand, it is urged by the Ld. defence Sessions Case No. : 74/10 Page 25 of 43 26 counsel that the case is based on circumstantial evidence and there is not even a single circumstance which could point towards the involvement of the accused persons in the crime. It is further submitted that the investigation has not been fairly conducted and the accused persons have been falsely implicated and the recoveries have been planted. It is further submitted that the prosecution has failed to prove the motive for the murder of the deceased Shyam.
66. The case is based on circumstantial evidence and the law as far as circumstantial evidence has been well settled. The principles of law governing the proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of the Hon'ble Supreme Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance, circumstances against the accused beyond all reasonable doubt but the said circumstances must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime.
67. The above said principles deducible from the 5 principals of law laid down by the Hon' Supreme Court in Sharad Sessions Case No. : 74/10 Page 26 of 43 27 Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 which are as follows :
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
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 Sahebrao Bobade 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 guilty before a Court can convict, and the mental distacne between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the fact 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.
(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 any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human Sessions Case No. : 74/10 Page 27 of 43 28 probability the act must have been done by the accused."
68. MOTIVE : As per the prosecution, deceased Shyam was having illicit relationship with accused Bhagwati and he wanted to keep Jyoti daughter of accused Bhagwati as his keep. Jyoti and Bhagwati were against this and despite warning the deceased did not mend his ways then he was killed by the accused persons.
69. One of the relevant witness in this regard is PW 3 who was the landlord of the house at Vijay Vihar, Rohini where accused Bhagwati was allegedly residing with deceased Shyam and her daughter Jyoti and where the alleged murder took place.
70. PW 3 Jagdish Prasad is the witness of the prosecution to prove the motive behind this murder. Now let us see as to what PW Jagdish Prasad has to say. In his examination in chief he has deposed that he has let out a shop in his house to accused Bhagwati for a rent of Rs. 600/ per month and she was residing there with Shyam (since deceased) and daughter Jyoti. He further deposed that daughter of the accused Bhagwati had complained to him against Shyam that since her father had expired so Shyam wanted to keep her as his keep instead of her mother. He also deposed that daughter of accused Sessions Case No. : 74/10 Page 28 of 43 29 complained to him that deceased Shyam had brought a Tantrik who had cut off some of her hair. He further deposed that on 2102003, at about 11 p.m daughter of accused i.e Jyoti had knocked his door and on his asking she told him that deceased Shyam had misbehaved with her and had put his hand over her breast. This witness had also put his suspicion on the Tantrik.
71. In his cross examination this witness stated that Jyoti had told him about Shyam having brought a Tantrik and had her hair cut. He further stated in his cross examination that Jyoti had not told anything else in this regard.
72. So this witness in his cross examination had denied whatever he has stated in his examination in chief regarding the conduct of Shyam. Moreover, the evidence of this witness is hearsay evidence and he has narrated in his examination in chief whatever was told to him by Jyoti. But for the reasons best known to the prosecution Jyoti, daughter of the accused Bhagwati is neither cited as a witness and nor examined in this case.
73. The next witness is PW 15 Raghuvir who is the brother of the deceased and another witness of the prosecution to prove the motive behind the murder.
74. This witness did not support the case of the prosecution Sessions Case No. : 74/10 Page 29 of 43 30 and was declared hostile.
75. In his cross examination by the Ld. APP he stated that " I had not mentioned in my statement to the police that my brother Shyam had come to our village alongwith Bhagwati and her daughter or that he had stated that he would marry Jyoti." He further denied that "I had also not stated in my statement to the police that Bhagwati had got annoyed on this and had stated that it would not be proper if he (Shyam) puts an evil eye on Jyoti." So from his cross examination nothing material could be extracted and he stuck to his guns.
76. PW 20 Ganesh is the uncle of the deceased and the prosecution witness to prove the motive behind the murder. This witness also did not support the case of the prosecution in his examination in chief but when cross examined by the Ld. APP he admitted that Shyam had taken Bhagwati to his native village on 3 / 4 occasion. However in the cross examination he specifically denied "It is incorrect to suggest that during those visits Shyam had expressed his desire to marry with the daughter of Bhagwati or that Bhagwati had threatened that if Shyam would marry her daughter then it will not be good for him."
77. So at the most what comes out from the evidence of Sessions Case No. : 74/10 Page 30 of 43 31 these witnesses i.e PW 3, PW 15 and PW 20 is that Bhagwati and Shyam had some relation but according to the prosecution the alleged motive of murder was the evil eye of deceased Shyam on Jyoti daughter of accused Bhagwati. But as already discussed hereinabvoe, the prosecution has not examined Jyoti who could have really through light on this aspect and there is nothing in the testimony of PW 3, PW 15 and PW 20 to suggest that accused persons killed Shyam as he was having an evil eye on Jyoti. So the prosecution has failed to prove the motive for which the accused persons could have killed Shyam.
78. The other circumstance against the accused is the alleged recovery of a shirt button from the hand/palm of the deceased.
79. RECOVERY OF BUTTON : According to the prosecution, a button was seized from the palm / hand of the deceased vide memo Mark B. According to the prosecution, the witnesses to the recovery of button from the hand / palm of the deceased are Anoop Singh, Mohd. Inam and Vishal.
80. Anoop Singh has been examined as PW 5. He has not supported the case of the prosecution and is a hostile witness. In his examination in chief he has stated that the police opened the Sessions Case No. : 74/10 Page 31 of 43 32 bora and dead body was recovered from a polythene inside the bora. He further deposed that police officer made every one run away from that place so he went back to his STD booth. He further deposed in his examination in chief that no proceedings took place in his presence and subsequently police brought a document and obtained his signatures and signatures of other shop keepers on the same.
81. In cross examination by the Ld. APP he denied the suggestion that the button, cloth of the deceased, STD phone receipt, gadda and dori had been seized by the police in his presence. However in his cross examination he stated that mark P 5 B bears his signatures at point X. He stated in his cross examination that he does not know anything regarding contents of this document.
82. PW 7 Mohd. Inam is the another witness who according to the prosecution witnessed the recovery of button from the hand/palm of the deceased. He has also not supported the case of the prosecution and he was also declared hostile. His signatures appears at point Y on Ex. Mark P 5B which is the seizure memo of the button in question. He has deposed that police had only asked him about his name and address and he Sessions Case No. : 74/10 Page 32 of 43 33 does not know anything about this case.
83. Two questions were put to him by the Court which are as follows :
Court Q.) See documents Mark P5 B, C, D, E. Does your signatures appear on these documents? A) Yes my signatures appear on these documents at portion encircled red Mark Y. Court Q.) Do you know anything about contents of these documents and had any articles been seized in your presence on 8102003?
A) I do not know anything about contents of these documents and nothing was seized by the police in my presence.
84. This witness was neither cross examined by the Ld. APP nor by the defence counsel. There is not even a suggestion from the side of the prosecution that he witnessed the recovery of the button from the hands of the deceased.
85. Another witness is PW 10 Vishal Aggarwal. He has also not supported the case of the prosecution and he was also declared hostile. In his examination in chief he stated that police had obtained his signatures on some blank papers under Sessions Case No. : 74/10 Page 33 of 43 34 pressure.
86. In his cross examination by the Ld. APP he admitted his signatures on mark P5B at point Z but he stated that his signatures were obtained on blank papers. He stated in his cross examination that nothing was recovered from any dead body in his presence. He denied the recoveries of any articles in his presence. But he kept on reiterating in the cross examination that his signatures were obtained on blank papers.
87. PW 31 is SI Satya Veer Singh. He deposed in his examination in chief that on 8102003, he reached the spot alongwith SI V.K. Sharma and from the personal search of the dead body one khaki button, one receipt of STD, one match box were found and they were sealed at the spot.
88. In his cross examination he stated that firstly the panchyatnama was conducted after taking out the dead body from the jute bag. After that photographer was called. But surprisingly, he stated in his cross examination that he does not remember as to who prepared the memo of the recovered articles from the dead body. He further stated in the cross examination that he does not remember if he was the attesting witness of any of the recovery at the spot.
Sessions Case No. : 74/10 Page 34 of 43 35
89. PW 6 Mohd. Ibrahim deposed that his thumb impression is at point Mark - X on document Mark P6A, which is a Panchayat nama but police obtained the same on a blank paper. He further deposed in his examination in chief that he does not know anything about contents of this document.
90. According to the case of the prosecution, the deceased was having a white and kathai colour button in his palm and the shirt from which the button was broken according to the prosecution belonged to accused Virender. In this regard, PW 28 SI V.K. Sharma who was the first IO of this case is one of the most material witness. In his examination in chief he has stated that when he reached the spot initially the body was photographed and then it was got preserved in the mortuary.
91. In his cross examination he stated that he had inspected the dead body before arrival of the photographer and the photographs were taken on the direction of ASI Satbir Singh under his supervision. He further stated in his cross examination that he had not got the hand of the body which was having button photographed. He further stated in his cross examination that the photographer came at the bus terminal before the inquest proceedings.
Sessions Case No. : 74/10 Page 35 of 43 36
92. According to the prosecution SI V.K. Sharma was the first police officer who had reached the spot and inspected the dead body. On his instructions the photographs of the dead body were taken but it is quite strange that why the hand in which the button was lying was not got photographed by the IO when the photographs were taken under his supervision.
93. Now it can be seen that all the three public witnesses who according to the prosecution are signatory to documents Mark P5B which is the seizure memo of the button has not supported the case of the prosecution regarding the recovery of the button from the hand/palm of the dead body.
94. Even in the cross examination nothing could be brought out by the Ld. APP. No doubt these three witnesses have admitted their signatures on mark P5B but they have given the explanation as to why their signatures appear on the said document.
95. According to PW 5 police had brought certain documents and got it signed from him. PW 7 has also given a valid explanation with regard to the signature on mark P5B. In replies to court questions though he agrees to his signatures but his categorical reply is that he does not know about the contents Sessions Case No. : 74/10 Page 36 of 43 37 of the documents and nothing was seized by the police in his presence. Not even a suggestion was put by the prosecution to this witness that he is not speaking the truth or that the recovery of the button was effected in his presence.
96. PW 10 has explained about his signatures on mark P5 B by deposing that he had signed on blank papers under police pressure. This witness was also declared hostile and in his cross examination by the Ld. APP he again reiterated that his signatures were obtained on blank papers.
97. According to PW 28, the button was seized vide seizure memo Ex. PW 5/B whereas as per the record the seizure memo is mark P5B. PW 25 has not uttered a single word that the seizure memo of the button was prepared and signed by him. The seizure memo in this case has not been proved by the prosecution because none of the prosecution witness says that the seizure memo of the button bears his signatures.
98. The inquest proceedings are Ex. PW 31/A which has been proved by ASI Satyaveer Singh. He is also the witness in whose presence the dead body was taken out from the bora but in his cross examination he says that he does not remember who prepared the memo of the recovered articles from the dead body Sessions Case No. : 74/10 Page 37 of 43 38 and he also does not remember as to whether he was an attesting witness of any recovery memo prepared at the spot. In the charge sheet as well as in the seizure memo of the button mark P 5 B the colour of the button which was found in the palm/hand of the deceased is mentioned as white and katthai but PW 31 SI Satya Veer Singh deposed in his examination in chief that from the personal search of the dead body one khaki button was found. Therefore, the colour of the button recovered from the palm / hand of the deceased is also doubtful. So no credence can be given to this witness as far as the recovery of button from the palm of the deceased is concerned.
99. It is pertinent to mention that PW 28 in his inquest proceedings recorded statement of a number of witnesses namely Mohd. Ibrahim, Mohd. Mobin, Mohd. Mustkim, Rafiq Ahmad and Mohd. Ismail, but interestingly the fact of recovery of the button from the palm of the dead body has no where been mentioned in their statements recorded by the IO. So from the discussions herein above the prosecution in my opinion has failed to prove the recovery of the button from the palm of the deceased beyond reasonable doubt.
100. ARREST AND RECOVERY: To prove the arrest and Sessions Case No. : 74/10 Page 38 of 43 39 recovery of shirt and knife, the prosecution has examined PW 15 Raghubir brother of the deceased and PW 20 Ganesh uncle of the deceased apart from police witnesses namely Ct. Manoj , Ct. Poonam and SI V.K. Sharma.
101. PW 15 Raghubir Singh has not supported the case of the prosecution and has made contradictory statement. In his examination in chief he has deposed that accused Bhagwati was arrested by the police in his presence and her son Ram Dass was also arrested by the police in his presence. (Witness has pointed towards accused Virender and claims that he is Ram Dass). Whereas in his cross examination by the Ld. APP he stated that he could not say if the accused persons were arrested by the police in his presence on 15102003. He further stated that he had signed only some register and had not signed any other paper. He further stated in his cross examination that though his signatures appeared on portion encircled red mark X on documents mark P15 B, C, D and E but he does not know anything about the contents of the same. He further denied "it is not correct to suggest that shirt of Virender was produced by him or was seized by the police in his presence." It is in correct to suggest that accused Bhagwati took us to her hoiuse and from Sessions Case No. : 74/10 Page 39 of 43 40 where she got recovered one chhura. I had not stated about this in my statement to the police." He further denied " I cannot identify the shirt if shown to me today."
102. This witness was cross examined on behalf of the accused regarding the disclosure statement. He stated in his cross examination that he was not aware as to when and where statements of the accused had been recorded by the police. He further stated that he had not signed any statement made by the accused.
103. Another witness is PW 20 Ganesh who is the uncle of the deceased. He deposed in his examination in chief that on reaching Delhi with Dehradoon Police and his nephew Raghubir, he inquried from Bhagwati and her son about her nephew Shyam and then both of them told him that they had killed Shyam. He then deposed that Dehradoon police then arrested them.
104. Regarding recovery this witness deposed that accused Bhyagwati produced one sword which she had taken out from the house where she was living in Delhi. The police did not do anything about that sword.
105. In his cross examination by the Ld. APP he identified the chhura as a sword. He further stated "it is correct that Sessions Case No. : 74/10 Page 40 of 43 41 accused Virender had produced one shirt from his scooter garage and that shirt was kept in a cloth parcel and it was seized by the police vide memo Ex. PW 20/D which bears his signatures at point A. When this witness was cross examined by the Ld defence counsel, he stated that his signatures were obtained by the police in Dehradoon and he had not signed any paper in Delhi.
106. According to Ex. PW 20/C which is the seizure memo of the weapon of offence i.e Chhura and it was got recovered by accused Bhagwati from under neath a garbage dump lying in a vacant plot. But PW 20 in his examination in chief stated that the chhura which he calls a sword was taken out by accused Bhagwati from the house where she was living and when he was cross examined by the Ld. APP he stated that Chhura was recovered from a waste bucket near the house of accused Bhagwati.
107. PW 15 who is the other witness to the seizure memo of the knife is a hostile witness. In cross examination he denied the suggestion that accused Bhagwati took them to her house from where she got recovered any chhura. He further stated in his cross examination that he had not stated about this in his Sessions Case No. : 74/10 Page 41 of 43 42 statement to the police. He was confronted by the Ld. APP form his previous statement which is mark P15A portion Z to Z where it is so recorded.
108. So according to the case of the prosecution itself there are two places of recovery of chhura which has now come on record. The seizure memo says the knife was recovered from a garbage dump lying in a vacant plot. PW 20 in his examination in chief says that the knife was recovered from the house of the accused Bhagwati but in his cross examination by the Ld. APP he stated that Chhura was lying in a garbage bucket near the house of accused Bhagwati and according to the prosecution the chhura was got recovered from the house of accused Bhagwati as suggested to PW 15 in his cross examination by the Ld. APP.
109. So the prosecution itself not sure from where the chhura was got recovered and both the witnesses have also not supported the case of the prosecution on this aspect. So the prosecution has miserably failed to show that the chhura was recovered at the instance of accused Bhagwati.
110. Therefore, in view of the discussions mentioned hereinabove the prosecution has failed to prove the motive behind the murder; recovery of button, shirt and chhura are also Sessions Case No. : 74/10 Page 42 of 43 43 doubtful. As far as the arrest and disclosure statements of the accused persons are concerned, they are also not above the shadow of doubt because PW 15 and PW 20 who are the public witnesses have not supported the case of the prosecution and their testimonies are not reliable.
111. In view of the discussions mentioned hereinabove, I am of the opinion, that the prosecution has failed to prove its case beyond reasonable doubt. Both the accused are, therefore acquitted. File be consigned to Record Room. (Announced in the open Court on 17092012.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Sessions Case No. : 74/10 Page 43 of 43