Delhi District Court
State vs . 1. Bishan Singh on 26 August, 2014
FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 210/14 Unique Case ID No. 02404R0105102009 State Vs. 1. Bishan Singh S/o Sh. Karan Singh R/o Village Bisundra, PS Orangabad, Bulandsahar. 2. Dharambir Singh S/o Late Sh. Tejbir Singh R/o Village Bisundra, PS Orangabad, Bulandsahar. 3. Rambir Singh @ Lalla S/o Sh. Bhoken Singh R/o Village Niwarkhas, PS Bhagat Pur, Distt. Muradabad(U.P) 4. Samai Pal @ Samar Pal S/o Sh. Bhawani Singh R/o H.No. B261, Risal Garden, Nilothi Mor, Nihal Vihar, Nangloi, Delhi. FIR No. : 503/08 Police Station : S.P Badli Under Sections : 365/302/201/411B/34/120B IPC Date of committal to Sessions Court : 13.08.2009 Date on which judgment was reserved: 21.08.2014 Date on which Judgment pronounced : 26.08.2014 State V/s Bishan Singh Etc. ("Acquitted") Page 1 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 JUDGMENT
The facts and circumstances giving rise to the present case are as under:
(i). That on 26.11.08, complainant namely Sh. Jagmohan Singh (PW6) filed written complaint (Ex.PW6/DA)in PS Hauz Khas regarding missing of his driver namely Sushil Kumar since 10.40 P.M of 23.11.2008. The said complaint was sent to P.S S.P Badli for appropriate action. In the said complaint, the complainant had claimed that he was running business of taxi services in the name and style of Sangam Taxi Services at village Hauz Khas Road near Jagan Nath Temple. One Sushil Kumar S/o Sh. Ram Kumar was working as driver on his Indigo car bearing registration no. DL3CAF0492 of badami colour. On 23.11.08 at about 5.00 P.M, he had sent said Sushil Kumar to pick up and drop one Mohan Dass (PW1) R/o A11/48, Sector18 Rohini, Delhi. Said Mohan Dass had told the complainant that driver Sushil Kumar had dropped him at 10.40 P.M at his residence i.e A11/48 supra. However, driver Sushil Kumar was missing since then. The said driver was having mobile phone no. 9999208982. On being contacted at the said number, said mobile phone was found switched off. The complainant expressed apprehension that someone had kidnapped his driver Sushil Kumar alongwith said Indigo car.
(ii). On the direction of SHO PS S.P Badli, FIR in question U/s 365 State V/s Bishan Singh Etc. ("Acquitted") Page 2 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 IPC was registered at PS S.P Badli and investigation was entrusted to SI Sameer Kumar (PW30).
(iii). During the course of investigation, SI Sameer Kumar made enquiry from Mohan Dass who claimed that driver Sushil Kumar had taken him in Indigo car on 23.11.08 to District Center, Janak Puri, Delhi and after attending the function, said driver had dropped them at his residence at Rohini at about 11.00 P.M and had gone away from there.
(iv). The analysis of Cell ID Chart of mobile no. 9999208982 also revealed the location of Sushil Kumar at District Center, Janak Puri, Delhi on 23.11.08 at 9.55 P.M.
(v). SI Sameer Kumar carried out necessary proceedings including issuance of WT message, publishing hue and cry notice, informing Missing Persons Squad, etc.
(vi). That on 21.01.09 at about 12.45 A.M, SI Ravinder Kumar of SOS Crime Branch gave intimation in PS S.P Badli regarding apprehension of accused Rambir Singh, Dharambir Singh and Bishan @ Bisham U/s 41.1(D) Cr.PC vide DD no. 11 of SOS Crime Branch wherein said three accused disclosed their involvements in this case. On receipt of DD no. 2A, SI Sameer Kumar of PS S.P Badli met SI Ravinder Singh and collected relevant documents i.e. disclosure statements, pointing out memo, seizure memo of one mobile phone alleged to have been recovered from accused Bishan Singh @ Bisham and also recorded statement U/s 161 Cr.P.C. of SI Ravinder Singh of State V/s Bishan Singh Etc. ("Acquitted") Page 3 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 SOS Crime Branch.
(vii). SI Sameer Kumar interrogated said three accused persons with the permission of Court on 21.01.09 in Rohini Court and formally arrested them in this case. In the disclosure statements allegedly made by said three accused before SI Sameer Kumar, they are claimed to have confessed their involvement in commission of offence involved in this case. They allegedly confessed that on 23.11.08, all three of them alongwith their associate Samai Pal Singh (coaccused) had committed murder of driver of Indigo car and had thrown his dead body near Shamshan Ghat (Cremation Ground) of Mangol Puri, Delhi and the said car had been taken by coaccused Samai Pal Singh.
(viii). SI Sameer Kumar obtained police custody remand of said three accused persons. Thereafter, said three accused persons led the police party to a place situated near Wazirpur Depot and claimed that they had asked for the lift from driver Sushil Kumar at the said place. SI Sameer Kumar prepared site plan of the said place at their instance besides pointing out memo. All the said three accused also led the police party to Dhaula Kuan fly over and claimed that they had killed driver of Indigo car at the said place. Accordingly, SI Sameer Kumar prepared pointing out memo of said place of occurrence at their instance.
(ix). On 22.01.2009, all the said three accused led police to a place situated near Bharat Gas Agency, Shamshan Ghat Road, Mangol Puri, Delhi and allegedly pointing out the place where they had thrown the State V/s Bishan Singh Etc. ("Acquitted") Page 4 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 dead body of driver Sushil Kumar. Accordingly, SI Sameer Kumar prepared pointed out memo of the said place which was falling in the jurisdiction of PS Vijay Vihar.
(x). On enquiry made from MHC(R) of PS Vijay Vihar, it was revealed that one dead body of male person was recovered from said place vide DD no. 16A dt. 24.11.08 and necessary proceedings were carried out by ASI Ved Pal in that regard. Accordingly, SI Sameer Kumar obtained inquest papers and photographs of the male person whose dead body was recovered, from ASI Ved Pal of PS Vijay Vihar. Complainant Jagmohan Singh identified from those photographs that it was the dead body of his driver Sushil Kumar. He also identified the clothes and other belongings which were seized by ASI Ved Pal to be the clothes of his driver Sushil Kumar. SI Sameer Kumar recorded statement of ASI Ved Pal as well as supplementary statement of complainant Jagmohan Singh. At the same time, offences U/s 302/201/411/120B/34 IPC were also added during the course of investigation and investigation was entrusted to Inspector Sanjeev Parmar (PW29) the then SHO of PS S.P Badli.
(xi). On 24.02.08, the mobile phone of deceased Sushil Kumar was got transferred from PS Crime Branch to PS S.P Badli. Accused Samai Pal Singh could not be apprehended despite efforts made by investigating agency and ultimately, accused Samai Pal Singh was declared proclaimed offender.
State V/s Bishan Singh Etc. ("Acquitted") Page 5 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014
(xii). IO Inspector Sanjeev Parmar (PW29) collected relevant documents i.e photocopy of insurance certificate of Indigo car no. DL3CAF 0492, copy of purchase bill dt. 10.09.2004 of Nokia mobile phone 1100, photocopies of four pages of salary register of driver Sushil Kumar maintained by complainant Jagmohan Singh. He also prepared site plan of the place of recovery of dead body at the instance of ASI Ved Pal.
(xiii). During the course of investigation, Inspector Sanjeev Parmar also recorded statements U/s 161 Cr.PC of the witnesses, got the belongings of deceased Sushil Kumar transferred from PS Vijay Vihar to PS S.P Badli, got scaled site plan prepared through SI/Draftsman Mahesh Kumar (PW3).
(xiv). During the course of investigation, it was revealed that the dead body of deceased driver Sushil Kumar recovered from the jurisdiction of PS Vijay Vihar, had been cremated after getting the postmortem conducted on 30.11.08 at Shamshan Sudhar Samiti, Tilak Nagar. As per PM report, the cause of death was opined as due to intra cerebral damage as a result of hard blunt object diverted upon skull back.
After completion of investigation, charge sheet was prepared and same was filed before the Court through concerned SHO.
After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
State V/s Bishan Singh Etc. ("Acquitted") Page 6 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 365/302/201/34 IPC against accused Bishan Singh, Dharambir and Rambir vide order dated 04.05.2010. Charge in respect of offence U/s 411 IPC was also framed against accused Bishan Singh vide order dated 04.05.2010 to which said three accused pleaded not guilty and claimed trial.
Accused Samai Pal Singh was arrested subsequently in this case and consequently, separate charges in respect of offences U/s 365/302/201/34 IPC were framed against said accused vide order dated 15.09.2011 by Ld. predecessor of this Court, to which he pleaded not guilty and claimed trial.
In support of its case, prosecution examined thirty three witnesses namely PW1 Sh Mohan Dass, PW2 HC Pawan, PW3 SI Mahesh, PW4 Sh Amar Singh, PW5 Inspector Jogender Singh, PW6 Sh Jag Mohan Singh, PW7 Ct Satbir Singh, PW8 ASI Ved Pal, PW9 Sh. Israr Babu, PW10 Ct. Kusum Pal, PW11 Retd. SI Surya Narain, PW12 Ct. Kamal, PW13 Ct. Anand, PW14 Sh. Gurmail Singh, PW15 W/HC Sita Devi, PW16 Sh. S.K. Gutpa, PW17 Ct. Ashok Kumar, PW18 Ct. Dhunni Lal, PW19 Sh Balbir Singh, PW20 Dr. V.K Jha, PW21 Sh. Ashok Kumar, PW22 SI Ravinder Singh, PW23 HC Rajesh Kumar, PW24 ASI Rajbir, PW25 HC Chand Ram, PW26 HC Mahavir Singh, PW27 Inspector Rajender Dubey, PW28 Inspector Satyavir Singh, PW29 Inspector Sanjeev Parmar, PW30 Inspector Samir Kumar Jha, PW31 Ct. Sanjay, PW32 SI Satish Kumar and PW33 HC Suresh Kumar.
State V/s Bishan Singh Etc. ("Acquitted") Page 7 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 Thereafter, statements U/s 313 Cr.PC of all the four accused persons were recorded during which all the incriminating evidence which came on record, were put to them which they denied. All the four accused persons claimed that they are quite innocent and have been falsely implicated in this case. However, all the four accused persons opted not to lead any evidence towards their defence.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES PW1 Sh. Mohan Dass: He is the passenger who had hired Indigo car on 23.11.08 at about 7.00 P.M. He deposed that he had gone in said Indigo car bearing registration no. 0492 on that day for attending marriage/reception at Janak Puri District Center and the said car was being driven by Sushil Kumar (now deceased). After attending said function, he was dropped at his residence at Sector 18, Rohini at about 11.00 P.M. He had signed the duty slip and thereafter, driver Sushil Kumar left their house.
During his cross examination, PW1 deposed that he did not notice as to whether said car was commercial or private. He had only put his signature and time on the duty slip. Sh. Jagmohan Singh (complainant) was known to him for the last about 45 years. His friend namely Vijay Bari who had arranged the said car, had paid fare for it. The driver Sushil Kumar had State V/s Bishan Singh Etc. ("Acquitted") Page 8 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 also taken dinner at the marriage party. PW1 deposed that said Indigo car was of white colour.
PW4 namely Sh. Amar Singh: He is the maternal uncle of deceased Sushil Kumar Yadav. He deposed that on 23.11.08, Sushil Kumar had gone to Rohini with Indigo car bearing no. 0492 for dropping someone on the direction of his employer Jagmohan Singh (complainant) but he did not return till next morning on which he made enquiries from employer Jagmohan Singh who told him that Sushil Kumar had gone to Rohini last night for dropping someone. However, when Sushil Kumar did not return back till evening time of 24.11.08 and his mobile phone no. 9999208982 provided to him by Jagmohan Singh was found switched off, he along with Jagmohan Singh had gone to Sarojini Nagar but their complaint was not lodged and they were directed to go to PS Hauz Khas where also their complaint was not lodged and even the police of PS Rohini did not lodge their report. They tried their best to lodge the FIR for about 10 days but same was not recorded.
PW4 further deposed that on 22.01.2009, he was called at PS Vijay Vihar where he had identified deceased Sushil Kumar Yadav from photographs Ex PW4/A1 to Ex PW4/A5. At that time, he had also identified his clothes i.e shirt of kesria colour, one black colour sweater, one baniyan bearing JBumBum, one black shoe, two grey colour socks and one grey colour pant as that of his nephew Sushil Kumar. He identified the aforesaid articles Ex P2 to Ex P8 when produced during trial in unsealed condition. State V/s Bishan Singh Etc. ("Acquitted") Page 9 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 During his cross examination, PW4 claimed that deceased Sushil Kumar had met him in the morning of 22.11.08. He was wearing the same clothes on 22.11.08 as also on 23.11.08. However, he could not tell the clothes worn by deceased prior to 22.11.08. After 20 days of missing of deceased, he had come to know about the lodging of FIR. Their complaint was registered at PS S.P Badli after about 20 days when they had met DCP (South). He had identified the clothes of deceased on 24.01.09 and his statement was recorded by the police of PS Vijay Vihar on that day.
PW4 further deposed during cross examination that deceased Sushil Kumar was employed on the personal car of Jagmohan Singh. He could not tell the registration numbers of other cars/taxies in possession of said Jagmohan Singh.
PW6 Sh. Jag Mohan Singh: He is the complainant in this case. He deposed that Sushil Kumar was employed as driver on his Indigo car no. DL3CAF0492. On 23.11.08 at about 5.00 P.M, said Sushil Kumar had gone to Rohini in the said car to pick up his friend Mohan Lal for taking him to some marriage function. He had dropped them at about 10.40 P.M but did not return back to his house alongwith the said car. His mobile phone no. 9999208982 was also switched off. He alongwith Amar Singh (PW3) who was relative of Sushil Kumar, had gone to PS Sarojini Nagar and to PS Rohini but their report was not lodged. After 23 months, police had brought 23 persons alongwith some photographs of deceased. At that time, he had identified deceased Sushil Kumar Yadav from those photographs Ex State V/s Bishan Singh Etc. ("Acquitted") Page 10 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 PW4/A1 to Ex PW4/A5. Relatives of deceased Sushil Kumar were also called in the PS and they also identified Sushil Kumar from those photographs. He had also identified the clothes of deceased Sushil Kumar at that time.
Thereafter, PW6 was cross examined by Ld Additional PP as he was not disclosing the complete facts before the Court. During said cross examination, he admitted that clothes of deceased Sushil Kumar were identified by him at PS Vijay Vihar. He was also called by police in PS S.P. Badli on 15.04.09 where also, he had identified the clothes of deceased Sushil Kumar in the presence of Amar Sngh who was maternal uncle of deceased Sushil Kumar. He also admitted that he had handed over photocopies of insurance certificate of aforesaid car, photocopy of purchase bill of Nokia bill and photocopies of four pages of salary register of driver Sushil Kumar maintained by him, to the police. He admitted his signature on relevant seizure memo Ex PW4/DB. He also identified those articles Ex P2 to Ex P8 as belonging to deceased Sushil Kumar when they were produced during trial.
During cross examination on behalf of accused persons, PW6 claimed that his brother namely Sh Joginder and Gurminder were doing the business of taxi driving and he had no knowledge of taxi driving. Initially, he claimed that he did not see driving license of Sushil Kumar but he again said that he had seen the driving license of Sushil Kumar issued from Rohtak. Sushil Kumar used to drive the aforesaid car which was his personal car and no official dress was provided to him. He claimed that complaint Ex State V/s Bishan Singh Etc. ("Acquitted") Page 11 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 PW6/DA was written by Sh. Amar Singh (PW4) and he cannot read or write Hindi language. He had signed the said complaint without knowing its contents and at the asking of Amar Singh.
PW14 Gurmail Singh: He is the brother of complainant Jagmohan Singh. He deposed that Sushil Kumar was employed as driver for the last about two years prior to the incident in question. On 23.11.08, Sushil Kumar had taken taxi i.e. Indigo car no. DL3CAF0492 but he did not return back and his mobile phone no. 9999208982 was also switched off. The said mobile phone was in his name which he had given to Sushil Kumar for using the same. He identified the said mobile phone make Nokia 1100 Ex.P9 when produced during trial.
During cross examination on behalf of accused persons, PW14 claimed that he can identify the said mobile phone even if mixed with some other mobile phone having same description as he had put a cello tape on it and said cello tape was affixed on the mobile phone even at the time of its production before the Court. He denied the suggestion that mobile phone Ex P9 was not the same mobile phone which he had given to Sushil Kumar Yadav.
PW19 Sh. Balbir Singh: He is the scooter mechanic who also used to sell spare parts of the scooter in Mangol Puri. He deposed that accused Samai Pal Singh was known to him as he used to come for repairing his scooter. However, he has not supported the case of prosecution at all. He denied to have told the police that he was having any Indigo car. Rather, he State V/s Bishan Singh Etc. ("Acquitted") Page 12 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 deposed that police tried to give beatings to him and had also threatened him.
PW19 was cross examined by Ld Additional PP during which relevant suggestions on the lines of prosecution story were put to him which were denied by the witness. In his cross examination on behalf of accused Samai Pal Singh, he deposed that said accused was his neighbour and he was knowing the said accused for the last 1516 years. He has not been cross examined on behalf of remaining accused persons.
PW21 Sh. Ashok Kumar: He is the pujari in Shamshan Ghat Sudhar Simiti, Tilak Nagar, Delhi. He deposed that on 30.11.2008, he had performed last rites of dead body of male person aged about 30/32 years which was handed over to him by ASI Ved Pal of PS S.P Badli with respect to DD no. 16A at about 2.20 pm. He proved copy of relevant entry made by him in the register maintained in this regard as Ex PW21/A. He has not been cross examined by accused persons despite grant of opportunity. POLICE WITNESSES PW2 HC Pawan: He had joined investigation of the case with initial IO namely SI Sameer Jha(PW30) on 21.01.09. He deposed that on that day, accused persons namely Bishan, Rambir and Dharambir had led them to Dhaula Khaun fly over and pointed out the place where they had killed the driver of the car. IO had prepared pointing out memo Ex.PW2/A of the said place. Thereafter, all the said three accused persons had led them to Wazirpur Depot Bus Stand where they had pointed out the place where from they had taken lift in the Indigo car. IO had prepared pointing out memo Ex State V/s Bishan Singh Etc. ("Acquitted") Page 13 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 PW2/B in this regard.
During cross examination on behalf of accused persons, said witness deposed that IO had prepared some rough notes of the places but he was not aware if IO had converted the same into site plans or not. His statement was recorded in PS. The witness was confronted with site plan of one place at Dhaula Kuan as also that of Wazirpur Depot but he could not tell as to whether said site plans were the same site plans which were prepared by IO on that day.
PW3 SI Mahesh: He is Draftsman who had prepared scaled site plan Ex.PW3/A after visiting the place of incident and taking rough notes and measurement over there. He has not been cross examined by accused persons despite grant of opportunity.
PW5 Inspector Jogender Singh and PW12 Ct. Kamal: The said witnesses are the Incharge and photographer of Mobile Crime Team, which had reached the spot and had carried out inspection. PW5 proved crime team report Ex.PW5/A while PW12 proved the photographs and their negatives as Ex.PW4/A1 to Ex.PW4/A5 and Ex.PW12/A1 to Ex. PW12/A5 respectively.
During cross examination on behalf of accused Bishan Singh, Samai Pal Singh and Rambir, PW5 deposed that he did not inform any police station about the recovery of dead body. PW5 admitted that on the photographs word 'Mangolpuri' is not mentioned. PW5 denied the suggestion that he had not visited the spot or that no dead body was found State V/s Bishan Singh Etc. ("Acquitted") Page 14 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 near the spot.
PW5 has not been cross examined by accused Dharamvir despite grant of opportunity.
PW12 has also not been cross examined by the accused persons despite grant of opportunity.
PW7 Ct. Satbir Singh: This witness had accompanied IO SI Sameer Jha on 21.01.09 to Rohini Court Complex where IO had arrested accused Rambir, Dharambir and Bishan after their interrogation, vide arrest memos Ex.PW7/A to Ex.PW7/C respectively and had also conducted their personal search vide memos Ex.PW7/D to Ex.PW7/F respectively. He deposed that IO had obtained three days' PC remand of said three accused persons on that day. He has not been cross examined on behalf of accused persons.
PW8 ASI Ved Pal: On receipt of DD No. 16A on 24.11.08, this witness alongwith Ct. Vijay had reached at Shamshan Ghat Road opposite Bharat Gas Agency, near Y Block, Mangol Puri, Delhi where dead body of one male aged around 30/32 years wearing pink colour shirt, grey colour pant, kesria colour baniyan, sky blue colour under wear, one sweater of black and green colour, one black colour shoe of right foot and grey colour socks, was found lying there. Crime team was called which inspected the spot and took the photographs. Despite efforts, dead body of said male could not be identified after which dead body was preserved in mortuary of SGM hospital.
State V/s Bishan Singh Etc. ("Acquitted") Page 15 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 PW8 deposed that he had recorded statements Ex PW8/A and Ex PW8/B of two persons during enquiry made by him for the purpose of identification of the dead body. He had also lodged DD no. 38B Ex.PW8/C in PS Vijay Vihar.
PW8 further deposed that on 30.11.08, postmortem on the dead body of said male was got conducted and his dead body was cremated at Shamshan Sudhar Samiti, Tilak Nagar, Delhi. He had collected receipt Ex.PW8/D in this regard. After postmortem, the aforesaid belongings of deceased were seized vide seizure memo Ex PW8/E and same were deposited in the Malkhana of PS Vijay Vihar.
PW8 further deposed that on 10.04.09, SI/Draftsman Mahesh Kumar had conducted the inspection and took rough notes and measurements for preparing the scaled site plan.
During his cross examination on behalf of accused persons, PW8 deposed that they were not having any information that dead body of driver of Indigo car had been thrown and he did not conduct any investigation in this regard after receipt of dead body. He denied the suggestion that he was aware about the identity of dead body recovered on 24.11.08.
PW10 Ct. Kusum Pal and PW22 SI Ravinder Singh: These are the police officials of SOS Crime Branch who had apprehended accused Bishan, Rambir and Dharambir on 20.01.09 at about 6.15 P.M U/s 41.1(D) Cr.PC based on secret information.
State V/s Bishan Singh Etc. ("Acquitted") Page 16 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 Both the said witnesses deposed that one mobile phone make Nokia 1100 was recovered from right side pocket of wearing pant of accused Bishan for which he could not produce any documentary proof nor he was able to give any satisfactory reply regarding possession of said mobile phone. Accordingly, the said mobile phone was seized vide memo Ex.PW10/A. Both the said witnesses further deposed that all the said three accused persons were arrested and their personal search was conducted vide memos Ex.PW10/B to Ex.PW10/G. All the said three accused had made disclosure statements Ex.PW10/H to Ex.PW10/K respectively during which they had confessed their involvement in the present case. They had also pointed out the place situated near back gate of Shamshan Ghat, Budh Vihar where they had thrown the dead body of driver of Indigo car on which pointing out memo Ex.PW10/C was prepared and intimation was given in PS S.P. Badli in this regard.
In his cross examination on behalf of accused persons, PW10 could not tell the description of public persons who were asked to join the investigation before going to the place where said three accused persons are claimed to have been apprehended. He deposed that public persons had gathered at the spot when said accused persons were apprehended. He testified that in case two mobile phones of similar kind are put together then he could not tell as to which of the said mobile phone was recovered from accused Bishan. He admitted that local police was not informed by them and public persons were available at or near Shamshan Ghat at that time.
During cross examination on behalf of accused persons, PW22 State V/s Bishan Singh Etc. ("Acquitted") Page 17 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 admitted that local police was not informed by them. He deposed that 810 public persons had gathered at the time of arrest of accused persons but nobody agreed to join the investigation despite request but he could not tell the physical description of those public persons. He admitted that mobile phone make Nokia 1100 is easily available in the market. He had verified from PS S.P. Badli by disclosing IMEI number of said mobile phone to confirm as to whether it was stolen or not and at that time, he came to know that said mobile phone was taken from deceased Sushil Kumar. He claimed to have told this fact to the IO in his statement U/s 161 Cr.P.C. but when he was confronted with his statement U/s 161 Cr.P.C. Ex.PW22/DA, no such fact was found recorded therein.
PW22 admitted that there was no specific secret information about the offenders who were involved in this case and the secret information was general in nature. He denied the suggestion that said accused persons were lifted from their respective houses and were falsely implicated in this case.
PW11 Retired SI Surya Narayan is the Duty Officer who has proved factum regarding registration of FIR in question in the present case. He proved copy of FIR as Ex.PW11/A and his endorsement Ex.PW11/B regarding registration of FIR.
Said witness further testified that on 21.01.2009, he had lodged DD No. 2A vide which SI Ravinder Singh of Crime Branch informed that three accused persons namely Rambir Singh, Dharambir Singh and Bishan had been arrested U/s 41.1(D) Cr.P.C. and they had made disclosure State V/s Bishan Singh Etc. ("Acquitted") Page 18 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 statements about the present case. He proved the copy of DD No. 2A as Ex.PW11/C. He has not been cross examined by accused persons despite grant of opportunity.
PW13 Ct. Anand: On 24.02.09, he had received mobile phone make Nokia 1100 from PS Crime Branch and deposited the same in Malkhana of PS S.P Badli vide RC no. 51/21/09. During cross examination, he could not tell the departure or arrival entry number for visiting to PS Crime Branch and returning back to PS S.P Badli.
PW15 WHC Sita Devi: She is the Duty Officer who had recorded the intimation that dead body of one male person was lying within the jurisdiction of PS Vijay Vihar on 24.11.08 vide DD no. 16A. She proved copy of said DD entry as Ex PW15/A and claimed that copy of said DD entry was given to Ct. Mahesh for handing over it to ASI Ved Pal (PW8). He has not been cross examined by accused persons despite grant of opportunity.
PW17 Ct. Ashok Kumar & PW18 Ct. Dhuni Lal: These two witnesses joined investigation of the case with initial IO SI Sameer Jha (PW30) on 22.01.09. They deposed that accused persons namely Rambir, Bishan and Dharambir had made their disclosure statements Ex.PW17/A to Ex.PW17/C before SI Sameer Jha in their presence and they also led them to Shamshan Ghat Road near Bharat Gas Agency Godown where they had thrown the dead body of driver of Indigo car for which pointing out memo Ex.PW18/A was prepared.
State V/s Bishan Singh Etc. ("Acquitted") Page 19 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 During cross examination, they denied the suggestion that disclosure statements were fabricated by them while sitting in PS and accused had not pointed out any place where from dead body was recovered.
PW23 HC Rajesh Kumar: He is the MHC(M) of PS Vijay Vihar who has proved relevant entries regarding deposit of nine articles by ASI Ved Pal in Malkhana. He prepared photocopy of relevant entry at serial no. 66 of register no. 19. He proved copy of said entry as Ex.PW23/A. He further deposed that all the said articles contained in one bag, were handed over by him to HC Rajender of PS S.P. Badli vide RC no. 21/21/09. He proved copy of said R.C. as Ex PW23/B. He has not been cross examined on behalf of accused persons despite grant of opportunity.
PW24 ASI Rajbir: He had joined investigation of this case with Inspector Satbir at PS S.P Badli on 12.04.09. He deposed that on that day, he alongwith Inspector Satbir had collected all the articles lying in bag from MHC(M) of PS Vijay Vihar vide RC no. 21/21/09 and thereafter, those articles were deposited with MHC(M) of PS S.P Badli. He has not been cross examined by accused persons despite grant of opportunity.
PW25 HC Chand Ram: He is the MHC(M) of PS Crime Branch. He deposed that on 20.01.09, SI Ravinder Singh had deposited one mobile phone make Nokia 1100 of grey and black colour having IMEI no. 35375300330521 in Malkhana of PS Crime Branch which was entered vide entry at serial no. 98 in register no. 19. He proved copy of said entry as Ex.PW25/A. He further deposed that on 24.02.09, said mobile phone was State V/s Bishan Singh Etc. ("Acquitted") Page 20 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 sent to PS S.P Badli through Ct. Anand vide RC no. 51/21/09. He proved copy of said RC as Ex.PW25/B. During his cross examination, he claimed that mobile phone was in unsealed condition.
PW26 HC Mahavir Singh & PW 31 Ct. Sanjay: These are the two witnesses who alongwith PWs namely ASI Suresh, HC Rajender and Ct. Suresh had apprehended accused Samar Pal @ Samai Pal Singh on 02.06.2010 from near Lokesh Cinema, Nangloi, Delhi U/s 41.1(c) Cr.P.C. based on secret information. They proved arrest memo, personal search memo and disclosure statement purportedly made by accused Samai Pal as Ex.PW26/A, Ex. PW26/D and Ex.PW26/C respectively. They also proved copy of Kalandra prepared vide DD No. 11 as Ex.PW26/B. They also proved copy of DD No. 11 as also copy of their departure entry made vide DD No. 8 vide memos Ex.PW26/E and Ex.PW26/F respectively. They deposed that intimation regarding arrest of accused Samai Pal was given in PS S.P. Badli on the next day i.e. 03.06.2010.
During their cross examination on behalf of accused Samai Pal, said witness deposed that they had gone in private Santro Car whose registration number could not be disclosed by them. They admitted that place of arrest of accused Samai Pal was a crowded place where there were shops, offices and cinema hall and public persons were also passing through the same. They claimed that public persons were requested to join the investigation but none agreed. However, they could not tell the description State V/s Bishan Singh Etc. ("Acquitted") Page 21 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 of those public persons who were requested to join the investigation. Local police was not infoemed at that time. They denied the suggestion that disclosure statement Ex.PW26/C of accused Samai Pal was fabricated by them. However, the said witnesses have not been cross examined on behalf of remaining accused persons despite grant of opportunity.
PW27 Inspector Rajender Dubey: This witness is formal witness who had obtained process U/s 82 Cr.PC against accused Samai Pal Singh on 02.09.09 and after getting the said process executed through HC Babu Ram, he had filed supplementary charge sheet against said accused in the Court.
During cross examination, he admitted that he cannot identify accused Samai Pal Singh. He also could not tell the complete address of accused Samai Pal Singh.
PW28 Inspector Satyavir Singh: He had carried out part investigation of this case. He deposed that he had obtained NBW against accused Samai Pal from concerned Court on 10.04.2009. SI/Draftsman Mahesh Kumar was called at PS S.P. Badli. He alongwith PW24 ASI Rajbir (the then HC) and SI / Draftsman Mahesh Kumar had went to the spot i.e. Shamshan Ghat Road, Mangolpuri, Delhi where ASI Ved Pal (PW8) of PS Vijay Vihar also came. SI/ Draftsman Mahesh Kumar took measurements of the spot and also prepared marginal notes at the instance of ASI Ved Pal.
PW28 further deposed that he had prepared rough site plan Ex.PW28/A at that time. He further deposed that on 11.04.2009, he had State V/s Bishan Singh Etc. ("Acquitted") Page 22 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 issued letter for providing call details record of mobile phone no. 9268393231 which was being used by accused Samai Pal.
He further deposed that on 12.04.2009, belongings of deceased Sushil Kumar were got transferred from Malkhana of PS Vijay Vihar through HC Rajender and got the same deposited in Malkhana of PS S.P. Badli. He also collected PCR form dated 24.11.2008 Ex.PW28/B from PCR Head Quarter.
He further deposed that on 15.04.2009, the complainant Jagmohan Singh and maternal uncle of deceased Sushil Kumar had produced copy of insurance certificate of Indigo car no. DL3CAF0492, photocopy of mobile phone bill dated 10.09.2004 and copy of salary slip of deceased Sushil Kumar, which were seized by him vide memo Ex.PW4/E. Thereafter, he prepared chargesheet against accused Rambir, Dharambir and Bishan Singh.
During his cross examination on behalf of accused persons, PW28 deposed that he did not come across any witness who had seen any of the accused persons throwing dead body of deceased or taking lift from deceased at Wazirpur fly over or having seen the accused persons hiring said Indigo car. He admitted that except disclosure statements of accused persons, there was no evidence against them. Although, he claimed that there was recovery of mobile phone from the possession of accused Bishan but he admitted that similar kind of mobile phones are available in the market. However, he clarified that IMEI of every mobile State V/s Bishan Singh Etc. ("Acquitted") Page 23 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 phone is different. He did not get the mobile phone identified from complainant Jagmohan Singh (PW6) who had provided him mobile phone bill.
PW28 admitted that as and when information regarding unknown dead body is received in any police station, the said information is registered in each and every police station. He could not tell as to whether IMEI number of mobile phone number had been mentioned in the chargesheet or not. He also could not tell if he had interrogated the owner of shop of M/s N.K. Electronics Pvt. Ltd. wherefrom mobile phone was purchased as per copy of mobile phone bill dated 10.09.2004 Mark PW6/B provided to him. He did not personally investigate as to whether the said mobile bill was genuine or not. He denied the suggestion that IMEI number mentioned on the bill Ex.PW6/B was manipulated by him in order to connect the accused persons with the present case and also that nothing was recovered from the possession of accused to connect them with the present case. It was also suggested to the witness that mobile phone recovered from accused Bishan Singh, was his own mobile phone but same was denied by him.
PW29 Inspector Sanjeev Parmar: He deposed that on 28.01.09, investigation of this case was entrusted to him. On 24.02.09, he got transferred the mobile phone which was recovered by Crime Branch, through Ct. Anand and same was deposited with the Malkhana of PS S.P Badli. State V/s Bishan Singh Etc. ("Acquitted") Page 24 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 Investigation remained with him till 06.03.09 after which it was transferred to Inspector Satbir Singh. He has not been cross examined by accused persons despite grant of opportunity.
PW30 Inspector Samir Kumar Jha: He is the initial IO of this case. He deposed that on 11.12.2008, one written complaint (Ex.PW6/DA) of Jagmohan Singh received from the office of DCP through dak, was marked to him by concerned SHO. He made endorsement Ex.PW30/A on the said complaint and got the FIR registered U/s 365 IPC in PS S.P. Badli.
He further deposed that on 21.01.2009, intimation was received in PS S.P. Badli vide DD No. 2A from SOS Crime Branch regarding arrest of accused Bishan, Rambir and Dharambir U/s 41.1(d) Cr.P.C. who had confessed their involvement in the present case. Accordingly, he went to the office of Crime Branch and collected relevant papers. He moved an application for interrogation of said accused at the time of their production before the concerned Court by SI Ravinder of Crime Branch and accordingly, he arrested all the said three accused persons vide arrest memos Ex.PW14/C, Ex.PW7/A and Ex.PW7/B respectively. He had also conducted their personal search. Thereafter, the accused persons pointed out the place situated near Wazirpur Bus Depot to be the place where they had taken lift from deceased Sushil Kumar of Indigo car on which he had prepared pointing out memo Ex.PW2/B. All the said three accused had also pointed out the place situated at Dhaula Kuan fly over where they had committed murder of driver of Indigo car no. DL3CAF0492 on which he prepared State V/s Bishan Singh Etc. ("Acquitted") Page 25 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 pointing out memo Ex.PW2/A. He further deposed that on the next day i.e. 22.01.2009, all the said accused persons made disclosure statements Ex.PW17/A to Ex.PW17/C and also pointed out the place situated near Shamshan Ghat, Bharat Gas Agency, Mangolpuri, Delhi where they had thrown the dead body on which he had prepared pointing out memo Ex.PW18/A. He further deposed that since the place of throwing of dead body was falling in the jurisdiction of PS Vijay Vihar, he made enquiry from said police station and came to know that one unknown dead body was recovered on 24.04.2008 vide DD No. 16A and relevant proceedings were conducted by ASI Ved Pal in this regard.
He further deposed that complainant Jagmohan Singh (PW6) was called in PS where he had identified all the articles/belongings of deceased Sushil Kumar vide his statement Ex.PW10/F. Thereafter, investigation was transferred to Inspector Sanjeev Parmar (PW29).
During his cross examination on behalf of accused persons, PW30 deposed that he did not find any witness who had seen accused persons boarding taxi no. DL3CAF0492 at Wazirpur Bus Depot or who may had seen accused persons taking away said taxi at Dhaula Kuan. He admitted that said taxi/Indigo car was not recovered from any of the accused persons during the course of investigation carried out by him. He also did not come across any witness who may had seen the accused persons throwing dead body of deceased Sushil outside cremation State V/s Bishan Singh Etc. ("Acquitted") Page 26 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 ground. He did not make any enquiry from priest of said cremation ground about throwing of dead body outside the said cremation ground by anyone.
PW30 admitted during cross examination that Bharat Gas Agency and Cremation Ground were situated on the same road at a distance of about 100 meters. He claimed to have made enquiries from employees of Bharat Gas Agency but none could give any clue about the incident in question. He conceded that he did not mention this fact or the names and other particulars of employees of Bharat Gas Agency who were so enquired by him, in the case diary. He further deposed that he had not personally seen the mobile phone recovered from accused Bishan Singh. He denied the suggestions that accused persons did not make any disclosure statement before him or that their disclosure statements were fabricated by him while sitting in the PS. PW32 SI Satish Kumar: He is the witness to the arrest of accused Samai Pal in the present case. He deposed that on 02.06.10, intimation was received vide DD no. 64B Ex PW32/A in PS S.P. Badli regarding arrest of accused Samai Pal U/s 41.1 Cr.P.C. vide DD no. 11 Crime Branch by the police officials of PS Crime Branch. Accordingly, he arrested the said accused pursuant to his production in Rohini Court and after carrying out his interrogation vide application Ex PW32/A. He proved arrest memo of said accused as Ex. PX1.
He further deposed that accused Samai Pal had made disclosure State V/s Bishan Singh Etc. ("Acquitted") Page 27 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 statement Ex.PW32/A1 and during police custody remand, said accused had also pointed out the place of incident i.e Dhaula Kuan fly over on which he had prepared pointing out memo Ex.PW32/B1. Said accused had also pointed out the place situated near Wazirpur Depot Bus Stand where from they had picked up the taxi on which he had prepared pointing out memo Ex.PW32/C1 and said accused had also pointed out the place i.e back gate of Shamshan Ghat, Budh Vihar where they had thrown the dead body on which he had prepared pointing out memo Ex.PW32/B1.
During his cross examination on behalf of accused Samai Pal, he admitted that he did not come across any person who had seen accused Samai Pal throwing dead body or driving the aforesaid Indigo car. He also admitted that nothing was recovered from the possession of accused Samai Pal and no public witness was joined at the time of pointing out the aforesaid three places by him. He denied the suggestion that accused Samai Pal did not make any disclosure statement and also did not point out any of the aforesaid places or that his signatures were obtained on blank papers.
PW32 has not been cross examined on behalf of remaining three accused persons despite grant of opportunity.
PW33 HC Suresh Kumar: He is MHC(M) of PS S.P. Badli. He deposed that on 24.02.09, SI Sameer Jha had deposited mobile phone make Nokia 1100 of grey and red colour which was got collected through Ct. Anand Singh vide RC No. 51/21/09, in Malkhana of PS S.P Badli. He had made relevant entry at serial no. 6502 in register no. 19. He proved copy of State V/s Bishan Singh Etc. ("Acquitted") Page 28 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 said entry as Ex PW33/A. He further deposed that on 12.04.09, HC Rajbir Singh had deposited nine pullandas collected by him from PS Vijay Vihar. He made entry at serial no. 6540 in register no. 19. He proved copy of said entry as Ex PW33/B. During his cross examination, he could not tell the time when case property was deposited.
MEDICAL EVIDENCE PW20 Dr. V.K. Jha of BJRM Hospital: This witness had conducted postmortem examination on the dead body of unknown male person aged about 32 years on the request of ASI Ved Pal of PS Vijay Vihar. He deposed that on external examination of the said dead body, no injury was noted.
He further deposed that on internal examination of head, there was sub scalp hematoma present over parieto occipital region and brain matter showed subdural hemorrhage over biparietal region and its mid part, subarchnoid hemorrhage was diffused all over at parieto occipital region, contusion of base of both frontal lobe.
He further deposed that cause of death of said unknown male person was due to intracerebral damage as a result of hard blunt object diverted upon skull base. All the injuries were ante mortem in nature and time since death was approximately six days. He proved PM report as Ex.PW20/A. During his cross examination on behalf of accused Samai Pal, he deposed that head injury was caused with hard and blunt weapon but he State V/s Bishan Singh Etc. ("Acquitted") Page 29 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 could not tell the nature of weapon which would have been used for causing such type of injuries. However, he clarified that such type of injuries found present on the head, had not been caused by sharp edged weapon. He could not tell the exact width of the weapon with which those injuries had been caused on head but explained that those injuries could have been caused by hard blunt object with broad surface.
ELECTRONIC EVIDENCE: PW9 Sh Israr Babu, Alternate Nodal Officer, Vodafone: He produced call details record of SIM number 9999208982 for the period between 22.01.08 to 11.12.08. He deposed that said number was issued to Gurmail Singh (PW14) R/o House no. 167, Arjun Nagar, Safdarjung Enclave, New Delhi. He proved copy of Customer Application Form (CAF), copy of Customer Declaration Form and copy of ID proof as Ex.PW9/A to Ex.PW9/C, copy of call details record for the aforesaid period as Ex.PW9/D and Certificate U/s 65B of Indian Evidence Act as Ex.PW9/E. During his cross examination, he admitted that no date is mentioned in Ex PW9/A to Ex PW9/C. He explained that only first 14 digits of IMEI number are counted and the last digit in every IMEI number is always zero as reflected in the CDR.
FORMAL WITNESS PW16 Sh. S.K Gupta, UDC, Transport Department: This witness produced relevant record regarding registration of vehicle no. State V/s Bishan Singh Etc. ("Acquitted") Page 30 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 DL3CAF0492. He deposed that as per their record, said vehicle was registered in the name of Jagmohan Singh (PW6) on 13.08.07. He proved computerized particulars of the said vehicle as Ex.PW16/A. He has not been cross examined by accused persons despite grant of opportunity.
I have already heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State, Ld counsel Sh. Shubham Asri Adv. on behalf of accused Bishan Singh and Rambir Singh, Ld. Counsel Sh. Neeraj Sharma, Adv. on behalf of accused Dharambir and Ld counsel Sh. Anil Bhardwaj Adv for accused Samai Pal Singh. I have also perused the material available on record. I have also duly considered the written arguments filed on behalf of accused Dharambir.
ARGUMENTS ADVANCED CASE LAW CITED While opening the arguments, Ld. Addl. PP argued that there are circumstantial evidence available on record which connect the accused persons with the commission of offence and thus, prosecution has been able to establish its case against the accused persons beyond shadow of doubt. The circumstantial evidence as pointed out by Ld APP are summed up as under:
(i) Recovery of dead body of deceased Sushil Kumar from near Shamshan Ghat, Budh Vihar near Bharat Gas Agency, Delhi on 23.11.08.
(ii) The death of deceased Sushil Kumar was homicidal in nature as per PM report Ex PW20/A. State V/s Bishan Singh Etc. ("Acquitted") Page 31 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014
(iii) There is recovery of mobile phone make Nokia 1100 of deceased Sushil Kumar from the possession of accused Bishan Singh at the time of his arrest besides arrest of co accused namely Dharambir and Rambir Singh U/s 41.1(D) Cr.PC by PW22 SI Ravinder Singh of Crime Branch on 21.01.09.
(iv) The disclosure statements made by accused persons wherein they confessed their involvement in the murder of driver Sushil Kumar Yadav of Indigo car and various pointing out memos of all the three places i.e Wazirpur Depot Bus Stand where from they had hired the said car, Dhaula Kuan fly over where they had committed his murder and the place situated near back gate of Shamshan Ghat, Budh Vihar, Delhi , prepared at their instance.
On the other hand, Ld defence counsel vehemently argued that prosecution has miserably failed to establish the charges levelled against the accused persons beyond reasonable doubt. In order to buttress the said contention, they argued that only incriminating piece of evidence relied by prosecution is the recovery of mobile phone of deceased. However, they vehemently argued that there are various material contradictions appearing in the testimonies of alleged recovery witnesses, which makes the recovery of mobile phone from accused Bishan Singh doubtful. They also contended that there is a discrepancy in IMEI number of the mobile handset allegedly recovered from the possession of accused Bishan Singh and IMEI number of mobile handset which was being used by deceased Sushil Kumar. In order to State V/s Bishan Singh Etc. ("Acquitted") Page 32 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 buttress the said submission, they referred to the photocopy of bill Mark PW6/B regarding purchase of mobile handset. Ld. defence counsel also referred to the testimony of PW9 Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd. who testified that the IMEI number of mobile handset remains the same even if SIM is changed therein.
The prosecution case is that the accused persons had committed the murder of Sushil Kumar. Nobody witnessed the occurrence and the case rests entirely on circumstantial evidence. It has been consistently laid down by Hon'ble Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
Hon'ble Apex Court in the matter titled as "Sharad Birdhichand Sarda vs. State of Maharashtra"reported at (1984) 4 SCC 116, has laid down the following five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence:
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 State V/s Bishan Singh Etc. ("Acquitted") Page 33 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 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 ShivajiSahebraoBobade Vs. State of Maharashtra, 1973 CriLJ 1783 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 distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be 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 probability the act must have been done by the accused.
Now coming to back to the facts of the present case. No doubt, the death of Sushil Kumar is shown to be homicidal in nature. The said fact State V/s Bishan Singh Etc. ("Acquitted") Page 34 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 has been proved by the testimony of PW20 namely Dr. V.K. Jha who had conducted postmortem examination on the dead body of deceased on 20.11.2008. In his testimony, PW20 deposed that on internal examination of head of deceased Sushil Kumar, there was subscalp hematoma present over parieto occipital region and brain matter showed subdural hemorrhage over biparietal region and its mid part, subarchnoid hemorrhage was diffused all over at parietooccipital region, contusion of base of both frontal lobe. He deposed that the cause of his death was intracerebral damage as a result of hard blunt object diverted upon skull base.
Postmortem report Ex.PW20/A further shows that time since death is mentioned as approximately six days which corroborates with the death of deceased Sushil Kumar as he had gone missing during the intervening night of 23/24.11.2008 and postmortem is shown to be conducted in the morning of 30.11.2008.
No doubt, the dead body of deceased Sushil Kumar has been recovered in this case but the Court does not find any force in the argument raised by ld. Additional PP that pointing out memos Ex.PW10/L (also exhibited as Ex.PW22/E) & Ex.PW18/A prepared at the instance of accused persons namely Bishan Singh, Dharambir and Rambir Singh whereby they allegedly pointed out the same place wherefrom dead body of deceased was recovered, should be treated as an incriminating piece of evidence connecting said three accused persons with the commission of offence involved in the present case. The reason is quite obvious that said place of recovery of dead body of deceased was already well within the knowledge of State V/s Bishan Singh Etc. ("Acquitted") Page 35 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 police authority much prior to the arrest of said three accused persons. It is an undisputed case of prosecution that dead body of deceased was recovered by PW8 ASI Ved Pal in the morning of 24.11.2008 whereas said three accused persons are claimed to have been apprehended by police officials of Crime Branch i.e. PW22 alongwith PW10, PW31 and other staff only on 20.01.2009 i.e. after a gap of about two months thereof.
Moreover, the aforesaid three accused persons as per the case of prosecution had jointly pointed out the place of recovery of dead body of deceased before PW30 Inspector Sameer Jha on 22.01.2009. There is nothing on record which may point out as to who was first amongst the said three accused who had pointed out the said place of recovery of dead body before PW30. That being so, the said piece of evidence is not admissible U/s 27 of Indian Evidence Act as joint pointing out at the instance of more than one accused persons is not recognized under the law i.e U/s 27 of Indian Evidence Act unless and until the prosecution has been able to establish on record as to which of the several accused persons had firstly pointed out towards the said particular place. Still, if any authority is required then reference with advantage can be made to the judgment of our own High Court in the matter titled as "Arun Kumar vs. State" reported at 1996 I A.D. (Delhi) 955 as also to the judgment of Division Banch of Hon'ble High Court of Sikkim in the matter of "Prem Bahadur Rai vs. State of Sikkim"
reported at 1978 Cr.L.J. 945.
The main bone of contention advanced on behalf of State is that State V/s Bishan Singh Etc. ("Acquitted") Page 36 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 there is recovery of mobile phone make Nokia 1100 belonging to deceased, from the possession of accused Bishan Singh at the time of his arrest U/s 41.1(d) Cr.P.C. by PW22 SI Ravinder Singh of Crime Branch on 21.01.2009. Ld. Additional PP vehemently argued that accused failed to explain as to how and under what circumstances, the mobile phone of deceased came to his possession and this particular circumstance, clearly point out towards their involvement in the commission of murder of Sushil Kumar.
The aforesaid argument appears to be impressive at the first instance but same is liable to be rejected for below mentioned reasons.
Firstly, there are several discrepancies appearing in the testimonies of relevant prosecution witnesses present at the time of arrest of accused Bishan Singh, Dharambir and Rambir Singh at the alleged date, time and place. For the said purpose, prosecution has produced two witnesses namely PW10 Ct. Kusum Pal and PW22 SI Ravinder Singh claimed to have received secret information that some boys involved in taking lift from vehicle and thereafter to kill driver of said vehicle, would gather at D Block, Mangolpuri on 20.01.2009 at about 6.30 pm. The said information was claimed to have been received at about 3.30 pm. Thereafter, raiding party is claimed to have been constituted as per the direction of ACP Udaivir Singh for appropriate action. Despite the fact that the raiding party consisting of several police officials including PW10, PW22 and PW31 had sufficient time before the arrival of those boys allegedly involved in taking lift from vehicle and thereafter, to kill driver of said vehicle, no sincere attempt is shown to State V/s Bishan Singh Etc. ("Acquitted") Page 37 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 have been made by them to join independent public witness either in the raiding party or even at the time of alleged recovery of mobile phone from accused Bishan Singh after his apprehension. Although, it has been claimed that PW22 SI Ravinder Singh had requested 78 passersby to join the raiding party but none agreed due to which no public witness could be joined in the raiding party but said explanation is nothing but a mechanical excuse furnished by the above named police officials in order to cover up lacuna in the case of prosecution. Even if it be presumed for the sake of arguments that several passers by were requested to join raiding party but none agreed, still, the aforesaid police witnesses failed to explain as to what prevented them to join independent public witness at the time of alleged recovery of mobile phone from the possession of accused Bishan Singh. This is more so when all the aforesaid three accused persons are claimed to have been arrested from Mangolpuri Bus Stand where public persons would have been available at the said place. Even otherwise, PW10 has admitted during cross examination that public persons had gathered at the place wherefrom said accused persons were apprehended.
Secondly, the mobile phone allegedly recovered from the possession of accused Bishan Singh was neither sealed by police officials of Crime Branch i.e PW10, PW22 or PW31 nor the said mobile phone was sealed at any subsequent stage. In other words, the mobile phone remained in unsealed condition throughout the investigation and till its production before the Court during the testimony of PW6 Sh. Jagmohan Singh. In view State V/s Bishan Singh Etc. ("Acquitted") Page 38 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 of this, the possibility of said mobile phone being planted upon the accused, cannot be ruled out.
Thirdly, PW10 Ct. Kusum Pal admitted during cross examination that in case two mobile phones of similar kind are put together, then he would not be in a position to disclose as to which of the mobile phone of similar make, similar colour and similar model, was recovered from accused Bishan Singh. This fact is also admitted by PW22 SI Ravinder Singh during cross examination that mobile phone make Nokia 1100 is easily available in the market.
Fourthly, PW22 SI Ravinder Singh claimed during cross examination that he had verified from P.S. S.P. Badli by telling IMEI number of mobile phone recovered from accused Bishan Singh, in order to confirm whether the said mobile phone was stolen one or not and at that time, he was informed that said mobile phone was belonging to deceased Sushil Kumar. However, said part of his testimony demolishes the case set up by the prosecution itself. It would be relevant to note that IMEI number of mobile phone used by deceased Sushil Kumar was never in the knowledge of police officials of P.S. S.P. Badli either till 20.01.2009. It may be noted that photocopy of mobile phone bill dated 10.09.2004 Mark PW6/B was seized by PW30 Inspector Sameer Jha on 15.04.09 when the photocopy of said mobile phone bill is claimed to have been produced for the first time by PW6 Sh. Jagmohan Singh before him. Moreover, the entire record is silent as to how PW22 SI Ravinder Singh acquired knowledge that FIR with regard to State V/s Bishan Singh Etc. ("Acquitted") Page 39 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 which the disclosure statements Ex PW10/H to Ex PW10/K(also exhibited as Ex PW22/B to Ex PW22/D) had been registered at PS S.P Badli. That being so, it is not clear as to how police officials of P.S. S.P. Badli could have confirmed PW22 SI Ravinder Singh on the basis of IMEI number that it was the mobile phone belonging to deceased Sushil Kumar.
Fifthly, no public person was joined even at the time of pointing out the place of throwing of dead body by accused Bishan Singh, Dharambir Singh and Rambir Singh before PW22 SI Ravinder Singh when pointing out memo Ex.PW10/L (also exhibited as Ex.PW22/E) is claimed to have been prepared by him. This is despite the fact that it has been admitted by PW10 and PW22 that public persons were available at that time and also that there was Bharat Gas Agency situated just near the said place. Not only this, no local police was informed at that time and no enquiry whatsoever was made from priest (pujari) of nearby Shamshan Ghat. Same also creates reasonable doubt in the story as propounded by the prosecution in the chargesheet.
Sixthly, IMEI number of mobile phone seized in this case is 353753003305213 of gray and black colour whereas IMEI number of Nokia mobile phone which was being used by deceased Sushil Kumar as mentioned in the CDRs Ex PW9/D is 353753503305210. In this backdrop, the testimony of PW9 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd. assumes significance as he deposed that IMEI number of every mobile handset is unique and remains the same even if different SIMs are inserted therein from time to time.
State V/s Bishan Singh Etc. ("Acquitted") Page 40 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 There is another important aspect which emerges from the testimony of PW9 when he deposed that there are 15 digits in IMEI number out of which first 14 digits are counted and last digit is '0' as also reflected in Call Details Record (CDRs) Ex.PW9/D in respect of SIM No. 9999208982 proved by him during trial. If one goes by the same, then the last digit of IMEI number of every mobile phone should be '0' whereas last digit of IMEI number of mobile handset Ex.P9 produced during trial is '3'. Same further cast serious doubt on the recovery of mobile handset from the possession of accused Bishan Singh. Same also shows that possibility of tampering with IMEI number of mobile handset, cannot be ruled out. Moreover, the original of mobile phone bill Mark PW6/B did not see light of the day. The Investigating Agency did not make any investigation on the point of genuineness of copy of said mobile phone as it was not difficult for him to join the shopkeeper of the shop which had purportedly issued the same. Neither said shopkeeper has been joined during investigation nor produced during trial. He would have material witness in order to prove the authenticity of the bill Mark PW6/B. Thus, material witness has been withheld by the prosecution from the Court and an adverse inference is liable to be drawn against it.
As is quite evident from the above discussion that the entire case of prosecution was rested upon the sole incriminating evidence i.e recovery of mobile hand set belonging to deceased Sushil Kumar from the possession of Bishan Singh at the time of his apprehension by Crime Branch on 20.01.09 on the basis of secret information. However, the prosecution has State V/s Bishan Singh Etc. ("Acquitted") Page 41 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 miserably failed to establish the fact that mobile hand set was actually recovered from the possession of accused Bishan Singh as also that said mobile handset was either belonging to deceased Sushil Kumar or was, in any manner, connected with the deceased.
Seventhly, the colour of Indigo car number DL3CAF 0492 was badami as per the case of prosecution but PW1 Mohan Dass who had hired the said taxi on 23.11.2008, deposed that the colour of said Indigo car was white.
There are several other reasons which create reasonable doubt in the case of prosecution and entitle the accused persons to benefit thereof. It is recorded in DD no. 38B dated 24.11.08 Ex PW8/C recorded in PS Vijay Vihar that colour of wearing shirt of deceased is pink, the colour of jacket is black, the colour of Baniyan(vest) is kesriya(orange), colour of pant is grey, colour of socks is blue and colour of underwear is sky blue and there was one leather shoe of black colour found on the body of deceased at the time of its recovery by PW8 ASI Ved Pal and there was no injury mark appearing on the dead body. However, the description of some of the aforesaid belongings of deceased were found to be somewhat different when those articles were produced during trial for the first time in the testimony of PW4 Amar Singh as the colour of shirt (Ex P2) was found to be of kesriya(orange), it was sweater (Ex P3) and not jacket, and the colour of socks (Ex P6 colly) was grey. Thus, the prosecution has failed to explain as to how and under what circumstances, the colour of said belongings of deceased were changed from State V/s Bishan Singh Etc. ("Acquitted") Page 42 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 the date of their recovery till their production in the Court. Moreover, all the aforesaid belongings of deceased were never sealed throughout the investigation and had been produced in unsealed condition during trial. The perusal of Mobile Crime Team Report Ex PW5/A would reveal that the only articles of deceased shown to have been seized by PW8 ASI Ved Pal as mentioned therein are clothes, Rs. 50/ and shoes of deceased whereas there is no mention of belt or socks therein. However, in addition to clothes of deceased, some more belongings claiming to be that of deceased, had been produced during trial whereas cash amount of Rs. 50/ as shown in column no. 12 of Crime Team Report Ex PW5/A, was never produced during trial and it was only one shoe and not shoes which was produced during trial. Thus, the possibility of tampering with the said belongings of deceased also cannot be ruled out for the said reason.
Although, it is claimed in DD no. 6 dt. 20.01.09 of SOS, Crime Branch(Ex PW22/A) that secret information was received by PW10 Ct. Kusum Pal that gang of persons who had been indulging in taking lift as passenger from drawers of cars and thereafter, to rob the said vehicles after murdering the drivers of said vehicles, would assemble at bus stand D Block, Mangol Puri at 6.30 P.M on 20.01.09. In this backdrop, the police officials of Crime Branch i.e PW10 Ct. Kusum Pal and PW22 SI Ravinder Singh ought to have interrogated the accused persons namely Bishan Singh, Dharambir and Rambir Singh regarding their involvements in other similar criminal cases besides the present case but the disclosure statements Ex PW10/H to Ex PW10/K( also exhibited as Ex PW22/B to Ex PW22/D) would State V/s Bishan Singh Etc. ("Acquitted") Page 43 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 reveal that except the disclosure relating to present case, said disclosure statements are totally silent about their involvement in any other case. There is nothing on record to show that any effort was made by said police witnesses to ascertain their involvement in any other case besides the present case. There is no iota of evidence available on record to show that any other case was worked out with the arrest of said three accused persons U/s 41.1(D) Cr.PC besides the present case. The said fact lends support to the argument raised on behalf of accused Dharambir that it is quite improbable that accused Bishan Singh, Dharambir and Rambir who are shown to be residents of different districts, would assemble at one particular place in the absence of any link or common factor being brought on record. Although, it has been submitted by Ld Additional PP that all the said three accused were related to each other as disclosed by them in their aforesaid disclosure statements but there is no substance in the said argument as there is no cogent piece of evidence led by prosecution on record which may show that all the said three accused were related to each other in any manner, except their disclosure statements which are inadmissible under the law.
It is well settled law that if a case is totally based upon circumstantial evidence, the motive also plays a vital role. No particular motive has been attributed or assigned to any of the accused persons which led them to commit the offences involved in the present case. It may be noted that there is no last seen evidence available on record as none of the prosecution witnesses claimed that deceased Sushil Kumar was lastly seen in the company of any of the accused herein immediately before his death. State V/s Bishan Singh Etc. ("Acquitted") Page 44 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 PW28 has admitted during cross examination that no witness has been cited on record who may have seen either of the accused persons taking lift from deceased Sushil Kumar in his aforesaid Indigo car no. DL3CAF0492 or committing his murder at Dhaula Kuan fly over or throwing his dead body near Cremation Ground, Budh Vihar.
It would also be useful to refer to the testimony of PW30 Inspector Sameer Kumar Jha(IO) who has also admitted during his cross examination on behalf of said three accused that he did not come across any witness who may had seen said accused persons taking away taxi no. DL3CAF0492 at Dhaula Kuan. He also admitted that no such taxi was recovered from accused persons during the investigation of the case with him. He also did not find any witness near Cremation Ground who may had seen said accused persons throwing dead body of deceased Sushil Kumar. He did not make any enquiry from priest of Cremation Ground about the factum of throwing of dead body outside the Cremation Ground by any one.
There is one another important aspect involved in the case. It has been admitted by PW28 Inspector Satyabir Singh who remained investigating officer of the case for some period, that whenever any information regarding unknown dead body is received, such information is registered in each and every police station. That being so, the factum regarding recovery of dead body of deceased Sushil Kumar was already within the knowledge of PW10 Ct. Kusum Pal, PW22 SI Ravinder Singh and PW31 Ct. Sanjay of P.S Crime Branch at the time of alleged apprehension of accused Bishan Singh, Dhararmbir and Rambir on 20.01.09. State V/s Bishan Singh Etc. ("Acquitted") Page 45 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 Moreover, no investigation seems to have been carried out on scientific lines in the present case. Nothing has been brought on record to show that investigating officer made any effort to ascertain mobile phone numbers being used by accused persons at the time of alleged occurrence and/or to collect Call Details Record of those mobile phone numbers for the relevant period in order to see that said accused persons were in touch with each other during said period or in order to show that said accused persons were present near the place of alleged occurrence or even near the place of recovery of dead body of deceased Sushil Kumar. Had it been so done, same would have proved to be an important piece of evidence which would have pointed out towards the guilt or otherwise of the accused persons in the commission of offences involved in this case.
As per the case of prosecution, deceased Sushil Kumar was driver on the taxi No. DL3CAF 0492 belonging to PW6 Sh Jagmohan Singh. However, there are contradictions appearing in the testimonies of PW6 Sh Jagmohan Singh visavis testimony of PW14 Sh. Gurmail Singh who is brother of PW6. PW6 claimed during cross examination that he had no business of taxi driving as also that he was having business of timber. He further deposed that his brother namely Sh Jogender Singh and Gurmender were doing the business of taxi driving and he had no knowledge of taxi driving. He also could not tell as to how much taxies his brother were having at that time. However, PW14 Gurmail Singh contradicted the said statement when he deposed that his brother Jag Mohan Singh(PW6) was doing the work of supplying taxies and mobile phone containing SIM State V/s Bishan Singh Etc. ("Acquitted") Page 46 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 number 9999208982 was given by them to deceased Sushil Kumar for using the same.
There are several vital aspects which remained unanswered during trial as prosecution witnesses either could not give satisfactory reply thereto or their testimonies are silent on those points. As per the case of prosecution, deceased Sushil Kumar driver had gone missing after dropping PW1 Mohan Dass and his family members at his residence situated at Sector 18, Rohini at about 11.00 P.M on 23.11.08 and thereafter, he had gone missing but FIR is shown to have been registered at PS S.P Badli. It is also not explained as to when dead body of unknown male bearing injury marks, had been received within the jurisdiction of PS Vijay Vihar as per DD no. 16A by PW8 ASI Ved Pal then why, no FIR was registered at PS Vijay Vihar.
At the same time, there is considerable delay in registration of FIR in this case but said delay has also not been explained by the prosecution witnesses examined during trial. Despite the fact that it has come on record in the testimonies of PW4 Amar Singh and PW6 Jag Mohan Singh that they had visited PS Rohini as also to other police stations on 24.11.08 onwards, no FIR was registered in any of the police stations of Delhi and the FIR in question U/s 365 IPC (Ex PW11/A) is shown to have been registered only on 11.12.08 at PS S.P Badli. The relevant column no. 8 meant for containing reasons for delay in lodging the report by complainant/informer in copy of said FIR (Ex PW11/A) has also been left blank. Ld Additional PP had argued that written complaint (Ex PW6/DA) was lodged by complainant Sh State V/s Bishan Singh Etc. ("Acquitted") Page 47 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 Jag Mohan Singh(PW6) immediately after the incident and therefore, delay if any is on the part of police authority for not registering the FIR but no benefit should be given to the accused persons on this account. However, the said argument is again considered to be without any substance for following two reasons.
Firstly, the said written complaint had been lodged on 26.11.08 whereas Sushil Kumar was suspected to have been kidnapped during the night time of 23.11.08 but still the delay of said two days has not been explained either in written complaint Ex PW6/DA or otherwise.
Secondly, there is every doubt on the genuineness of the complaint Ex PW6/DA in view of the relevant part of testimony of PW6 Jag Mohan Singh wherein he has stated that he himself had not written the said complaint as he did not know Hindi and that is why, he did not know as to what was written in the complaint Ex PW6/DA. He explained that complaint Ex PW6/DA was written by Sh Amar Singh(PW4). However, the testimony of PW4 Sh Amar Singh is totally silent on the said aspect. Rather, PW4 claimed that he alongwith Sh Jag Mohan Singh(PW6) had visited PS Hauz Khas but their complaint was not lodged and it was only on 22.01.09 that he was called at PS Vijay Vihar. It shows that possibility of complaint Ex PW6/DA being manipulated, cannot be ruled out.
So far as accused Samaipal Singh is concerned, there is no iota of evidence available against him except the disclosure statements made by co accused persons which are hit by Section 25 and 26 of Indian Evidence State V/s Bishan Singh Etc. ("Acquitted") Page 48 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 Act and are inadmissible under the law. Although, Ld Additional PP submitted that accused Samaipal Singh had also pointed out the place where from he alongwith co accused had taken lift from deceased Sushil Kumar at Wazirpur as also the place where he had committed his murder and also the place where dead body was thrown vide pointing out memos Ex PW32/B1, Ex PW32/C1 and Ex PW32/D1. However, all the said three pointing out memos are not admissible U/s 27 of Indian Evidence Act as all the said three places were already within the knowledge of police authority much before the arrest of said accused and no discovery of any new fact was made either in the disclosure statement Ex PW32/A1 purportedly made by said accused or on the basis of said three pointing out memos.
According to the case of prosecution, it was accused Samai Pal Singh who had taken away taxi no. DL3CAF 0492 after murder of deceased Sushil Kumar. The prosecution had also relied upon one public witness namely Sh. Balbir Singh in order to show that accused Samai Pal Singh had shown said Indigo car no. DL3CAF 0492 to him and had expressed his intention to sell the said vehicle but PW19 Sh. Balbir Singh did not support the prosecution case at all. He simply deposed that accused Samai Pal Singh was known to him as he used to come to him for repair of his scooter. He deposed that police came to him and threatened him despite the fact that he had told the police that he had no knowledge about the said car.
Despite cross examination conducted by Ld Additional PP of the State, he did not depose on the lines of prosecution story as he categorically denied that accused Samai Pal Singh had come to him alongwith Indigo car State V/s Bishan Singh Etc. ("Acquitted") Page 49 of 50 FIR No. 503/08; U/s 365/302/201/411B IPC; P.S. S.P Badli DOD: 26.08.2014 number DL3CAF 0492 in the year 2008 or had asked him to sell the same for Rs. 2,00,000/. In view of the testimony of PW19 Sh Balbir Singh, the case of prosecution qua accused Samai Pal Singh stands demolished in entirety.
It is settled law that criminal jurisprudence begins with the presumption that unless otherwise proved, the person facing the trial would be deemed to be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the act of the accused with the ultimate crime and where the material links constituting the evidence are found missing then the benefit of the same goes in favour of the accused.
In view of the aforesaid discussion, Court is of the view that prosecution has miserably failed to establish the charges levelled against all the four accused persons namely Bishan Singh, Dharambir Singh, Rambir Singh @ Lalla and Samai Pal @ Samar Pal beyond shadow of doubt. Consequently, said accused persons are acquitted of the charges levelled against them.
File be consigned to Record Room after compliance of Section 437A Cr.PC.
Announced in open Court today
dt. 26.08.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts,
Delhi
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