Delhi District Court
State vs Pawan Kumar S/O Sh Ambika Prasad on 17 August, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 91/10
State Vs Pawan Kumar S/o Sh Ambika Prasad
R/o Vill. Badhora, PS Ekona,
Distt. Bahraich, UP.
FIR No : 441/09
P.S. : Sangam Vihar
U/s. : 302 IPC
DATE OF INSTITUTION : 05.10.2010 (Initial date
of Institution: 11.03.2010 )
JUDGMENT RESERVED ON : 11.08.2011
DATE OF DECISION : 17.08.2011
JUDGMENT:
1. On receiving the information of the incident on 11.12.09, Inspector Satya Pal Singh alongwith other police officials reached at H.No. 145 Block E, Sangam Vihar, Gali No. 6 and found that the room at second floor of H.No. 145 locked from outside and by peeping inside from the roshandan saw a dead body and after break opening of lock found a highly decomposed dead body on which the insects were running but had not noticed any external injury on said body.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-1)
2. IO recorded the statement of landlady Smt. Arpana wife of Anek Pal who alleged that room was given on rent to one Pawan Kumar one month back. On 06.12.2009 he alongwith his associates at around 11 pm came to the house and handed over Rs. 500/ as a rent but she do not know when they left in the morning. The said room was locked since then and today on getting the bad smell called 100 number, pursuant to her statement FIR u/s 302 IPC was registered.
3. Crime team was called at the spot and photographs of the dead body were taken. Thereafter, on completion of inquest proceedings dead body was sent to AIIMS mortuary. Broken lock was seized and site plan of the spot was prepared. Further during investigation, deceased was identified as Vijay Kumar through his father Joginder Ram and brother Dalip Kumar. On 12.12.2009 accused Pawan Kumar was arrested and his disclosure statement was recorded and on his pointation, one muffler (black coloured) was recovered from an attachi lying in the room. Thereafter, key of lock of his room and mobile phone of deceased was recovered at his instance from his madrasi camp jhuggi.
4. During investigation police recorded statement of Rashmita wife of accused in which she alleged that she was residing with Vijay Kumar as his wife because accused Pawan Kumar used to do lot of quarrel and State Vs. Pawan, SC No. 91/10, (Contd.. pg-2) beating with her. But accused Pawan Kumar had searched her and called her to D Block Sangam Vihar. She further alleged that on 06.12.21009 at around 10 pm deceased Vijay Kumar had told her that he is going for taking money and will come back in the morning but in the morning he had not come back. When deceased Vijay had not come in the morning she tried to contact him but unable to contact thereafter, he tried to contact Pawan but as she did not knew his number and address of new room therefore, she could not contact him. On 08.12.2009 at around 8 pm, accused Pawan met her at Yusuf Sarai and told her that Vijay had left her and will never return and further made her to vacate H.No. D175, Sangam Vihar and taken her to rented jhuggi at Madrasi Jhuggi , Lajpat Nagar. On 09.12.2009 when she had seen the mobile of Vijay with accused Pawan, then accused Pawan told him that he had killed Vijay and when she told accused Vijay to complaint in police then he threatened her therefore, she kept mum.
5. After completion of investigation, chargesheet was filed and on committal charge was framed against the accused U/s 302 IPC.
6. Prosecution for substantiating charge examined 21 prosecution witnesses. PW1 Landlady was the witness to last seen, PW2 Anek Pal, the husband of landlady called police at the spot. PW6 Rashmita Goswami, the wife of accused Pawan Kumar witness to motive, other witnesses are doctors, the persons who identified deceased and the State Vs. Pawan, SC No. 91/10, (Contd.. pg-3) police officials. Brief summary of deposition of witnesses are as follows.
Deposition of main witnesses:
7. PW 1 Aparna landlady deposed that she rented one room at second floor of her house to accused Pawan Kumar on 10.11.2009 at the @ Rs. 700/ pm and on 06.12.2009 accused alongwith 3 persons came to room at about 11 pm and gave Rs. 500/ as balance rent and after paying rent he went alongwith other persons inside the rented room. On 11.12.2009 when she went on the second floor she got the foul smell from the room of Pawan and on opening the room by police she saw the dead body of male was lying in that room. In cross examination, she deposed that entire premises consists of 5 rooms and two rooms were on second floor. And at the time of incident there were two tenants in the premises. The second tenant was Ravi who was residing alongwith his family and at the time of incident he alongwith his wife and two brothers were residing in the adjoining room of Pawan Kumar. She further deposed that name of wife of Ravi was Laxmi who used to reside in the room as housewife. She further stated that she did not used to issue any receipt of rent to Pawan Kumar and no rent agreement was also executed with Pawan Kumar and the said tenant was brought by somebody in the neighbourhood namely Rajbir. She further deposed that at around 12/12.30 in the noon she felt foul State Vs. Pawan, SC No. 91/10, (Contd.. pg-4) smell coming from the room of Pawan Kumar. She had not gone to the second floor between 11.12.09 and 16.12.2009 and Laxmi had not told her anything regarding foul smell from that room. She further deposed that the entire premises built up in 25 yards and she always used to watch anybody entering in the house and going to second floor. She further deposed that she had not seen anybody going out of the room on 6.12.09. she denied the suggestion that accused was not residing in the said room on that day.
8. PW2 Anek Pal deposed that he had given one room on rent at second floor to accused Pawan Kumar on 10.11.09 @ 700/ pm. He further deposed that accused shifted to the rented room on 6.12.2009 in his absence when he was at his native place and returned back to his house on 7.12.09 in the morning and his wife told that accused Pawan Kumar came in the room on 6.12.09 alongwith some persons. He further deposed that his wife noticed foul smell from the rented room of Pawan Kumar and thereafter, he telephoned police at 100 number and they after coming to spot broke open the lock of said room and found dead body of male lying inside the room. Police conducted the proceedings at the spot and seized the broken lock in his presence. He further deposed that prior to opening of lock by breaking the lock police had taken the photographs and further identified the broken lock.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-5)
9. In cross examination, he deposed that lock was broke open by the police with the help of hammer and had searched the room. After that they seized the clothes, and also seized one attachi from the room which consists some clothes and further had taken away entire articles from the room.
10. PW6 Ms. Rashmita Goswami deposed that she married accused Pawan Kumar and having two children out of that wedlock. She further deposed that she never met or seen deceased Vijay Kumar and on inquiry by police she told that she do not know anything about murder of Vijay Kumar. This witness had not supported the prosecution version about her love affair with deceased Vijay Kumar and further staying with Vijay Kumar alongwith children as his wife. She was duly confronted with her statement u/s 161 Cr.P.C. She further denied the telephone call made to Vijay on 07.12.2009.
11. PW4 Dr. Shashank Punia deposed that on 15.12.09 Dr. Shiva Prasad conducted postmortem on the body of Vijay Kumar and he had worked with Dr. Shiva Prasad and seen him signing and writing several times and as per postmortem report Ex. PW4/A the cause of death is asphyxia due to strangulation and smothering by soft material and in subsequent opinion, the said smothering and strangulation could be possible from the muffler shown by the IO. In cross examination he deposed that he cannot comment from the postmortem report about the State Vs. Pawan, SC No. 91/10, (Contd.. pg-6) time since death.
12. PW10 Ajit Singh Asstt. Nodal officer from Idea Cellular deposed that mobile no. 9990903785 was issued in the name of Naveen s/o Kishan Chand and the call details of the said mobile number from period 10.11.2009 to 12.12.2009 and further from 10.11.2009 to 7.12.2009 are Ex. PW10/C and PW10/A
13. PW5 Sh Naveen Kumar deposed that he knew deceased Vijay Kumar as he used to work in a shop at Yusuf Sarai near his residence. As Vijay Kumar was not having identity proof therefore he requested him to get one mobile sim on his ID card. Therefore he handed over his identity card pursuant to which he took mobile phone connection bearing No. 9990903785 of Idea Cellular. He further denied suggestion that he had also brought Micromax mobile to the deceased. In cross examination he deposed that he knew Vijay Kumar for last 56 years but do not know at whose shop Vijay Kumar was working however, that shop used to had in ticket booking etc. PW18 Joginder deposed that on 15.12.09 he identified the dead body of his son Vijay Kumar. PW19 Dalip Kumar also identified the body of deceased Vijay Kumar being brother of the deceased.
Deposition of Police Officials:
State Vs. Pawan, SC No. 91/10, (Contd.. pg-7)
14. PW3 HC Subhash recorded 2 DDs no. 31 A and 38 A on 11.12.2009 and further recorded the FIR Ex. PW3/C at about 7.30 pm on the same day. PW7 SI Chand Singh on receiving DD no. 24 A on 11.12.2009 he alongwith SHO and Ct. Anil reached the spot and on keeping through ventilator (Roshandan) saw a dead body was lying in room and a photographer was called who took photographs of the room. And thereafter, the lock of the said room was broken. In cross examination, he stated there is one room at the second floor where the dead body was found and nobody was found residing in that room and the lock was broken with the help of iron rod and number of clothes were lying there. And he further denied that it is wrong to suggest that lock was already open before they reached the spot. PW8 HC Dharam Singh In his presence the dead body of deceased Vijay Kumar was identified by his brother Dalip and father Joginder and had taken 5 sealed parcels from the doctor and handed over to the IO. PW9 Ct. Narender Singh deposited exhibits handed over by MHC(M) to FSL, Rohini.
15. PW11 SI Sanjay Kumar deposed that he joined investigation on 12.12.2009 alongwith SI and apprehended accused Pawan on secret information. Thereafter, his disclosure statement was recorded. After that the accused had taken the police team to the spot where he took out one muffler from a suitcase which was lying in a room and told that he had killed deceased Vijay by tying his neck with that muffler.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-8) Further, accused taken them to Jhuggi at Jal Vihar from where one mobile make Micromax and one key was recovered. In cross examination, he deposed that he do not remember when he joined investigation on 12.12.2009. further he do not remember the time when he left the PS however it was afternoon but could not tell whether 3 pm, 4 pm or 2 pm. He also could not tell the diary number of departure and cannot say how many shops are there in Krishna Market whether 10,20,50,100. He further could not tell the width of the road of Krishna Market. He further deposed that accused was arrested from the road of Krishan market Lajpat Nagar and nobody else except himself, IO and Ct. Shrawan was with them and neither they were having any photo /sketch of the accused. He further deposed that there is lot of crowd and number of people passing through but he do not know whether there is any police picket at both the ends of Krishna Market. He further deposed that IO did not join any beat officer or any police or public person present at Krishna Market. He further deposed that disclosure statement of accused was written at the spot but no site plan of the place of arrest was prepared and IO might have recorded the statement of accused by sitting outside of shop however he do not know which shop and reached Sangam Vihar at about 7.30 pm. He further deposed that the room of accused Pawan Kumar was searched in the presence of landlady but he cannot tell the dimension of suitcase from which the muffler was recovered. IO did not make any efforts to take fingerprints from the said suitcase and landlady was not joined as State Vs. Pawan, SC No. 91/10, (Contd.. pg-9) witness to the recovery . He further states IO tried to join persons from the adjoining houses of the locality but they refused to join investigation. He further deposed that no blood stain was found on muffler and same was not in folded condition when recovered.
16. He further deposed that he do not remember when he reached Jal Vihar at the jhuggi of the accused where his wife was also present. Accused wife Rashmita is not joined as a witness to the recovery. IO did not verify the key recovered by inserting the same in any lock. He further deposed that he do not remember whether there was any sim card in the mobile phone.
17. PW12 SI Mahesh Kumar prepared the scaled site plan of the spot. PW13 Ct. Rajender Singh went to the spot on 11.12.2009 on the direction of DO and he was handed over rukka at the spot by the IO and taken the said rukka to the PS for registration of the case. In cross examination he submitted that there are two rooms on the second floor of the premises and the IO checked the clothes etc. lying in the suitcase but do not remember the colour of the suitcase. PW14 HC Gajraj duty officer recorded the DD no. 24 A dated 11.12.2009 regarding information from control room that the room at the spot lying lock and foul smell coming out of the same. PW15 Laxman had taken the photographs of the locked room on being called by the police and after that taken the photograph of the dead body inside that room.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-10) In cross examination he deposed that no public persons were there upstairs only one tenant was present in the adjoining room but do not know by what means lock was broken. He cannot say whether the lock was opened with the help of key. He further deposed that he do not remember whether there was any suitcase etc. or not. PW16 Ct. Rajender Singh delivered the copy of FIR to Ilaka Magistrate and Sr. officers on 11.12.2001. PW 17 HC Shish Pal is the malkhana mohrar deposed that on 11/12/15.12/2009 IO deposited sealed pulandas in malkhana and further on 21.1.2010 he sent the pulanda containing muffler to AIIMS hospital through IO which was redeposited on 15.02.2010. PW20 HC Shrawan deposed that on 12.12.2009 he joined investigation with IO and SI Sanjay and went to Krishna Market, lajpat Nagar from where accused Pawan Kumar was apprehended and thereafter, they had taken him to H.No. 145/6A, Sangam Vihar where accused recovered muffler from his suitcase and thereafter taken the team to Madrasi camp jhuggi and he got recovered the mobile make Micromax and one key of the house. In cross examination, he deposed that he joined investigation at around 4 pm on 12.12.09 and besides himself IO and SI Sanjay and driver of the gypsy , nobody was with them. He further deposed that he cannot tell the width of road of Krishna market whether 10,20 or 50 width. They only (i.e, himself, PW11, PW21 & PW20) went to the market and arrested the accused in the gali inside Krishna Market. He further deposed that IO had prepared the site plan of the place from where the accused was State Vs. Pawan, SC No. 91/10, (Contd.. pg-11) arrested. He further deposed that they reached Sangam Vihar at around 7.30 pm and went straightaway to the room of the accused however, IO had a talk with man inside the house but he do not know who was the said person. He do not remember whether there was any lady inside the house or not. He further deposed that IO had not taken out any key from his pocket to open the said room and he do not remember whether IO had removed any key from the said room. He further do not know who opened the suitcase and said suitcase was not locked. He further deposed that they reached Madrasi camp at night but cannot tell whether the jhuggi was open or closed. Further could not tell whether there was any lock or not. He do not remember whether wife of accused was inside jhuggi or not. No sim card was inside the phone. He do not remember at what time accused was again locked up in PS. He further deposed that no site plan was prepared by IO at the time when recoveries were effected at Sangam Vihar or Madrasi camp.
18. PW21 IO/Inspector Satya Pal Singh deposed that on 11.12.2009 reached spot on receiving the information of foul smell. Thereafter from roshandan, team saw the dead body inside the room, photographs of the locked room was taken thereafter, the said lock was broken and found the dead body. Owner Anek Pal told that the said room was given on rent to accused Pawan Kumar and on 6.12.2009 he came with two persons and had given him Rs. 500/ and went to his room alongwith these two persons. Thereafter, on DD no. 24 A he prepared State Vs. Pawan, SC No. 91/10, (Contd.. pg-12) rukka and sent Ct. Rajinder for registration of case. Crime team was called on the spot, photographs of the spot were taken and further recorded the statement of Anek Pal and his wife Aparna. Seized the broken lock and body was sent for postmortem. He further deposed that room owner Anek Pal told him that accused Pawan Kumar worked in B107 Krishna Market, Lajpat Nagar and on making inquiries from that office one Dr. Aggarwal told that Pawan Kumar has left the office by saying that he will come back from his village after 34 days and on 12.12.2009, he received a call from Dr. Aggarwal that Pawan Kumar will come to receive money from him and at about 5,.30 at the pointing out of one staff member of Bio Tech company, Pawan Kumar was arrested and thereafter, his disclosure statement was recorded. In disclosure statement he told them that he left the house at Sangam Vihar and shifted to Madrasi camp, Jal Vihar, thereafter they alongwith accused went to his jhuggi from where he recovered a mobile phone without sim and a key of the lock. Thereafter, accused was taken to the spot i.e, room at Sangam Vihar and accused recovered a muffler from the suitcase lying inside the room.
19. In cross examination, he deposed that the lock of the room was broke open with the help of hammer brought by the landlord and there were no articles except the bedding, utensils and some bag and bag was of rexin but he had not made any list of articles lying inside said room and further not seized any articles from the room but had opened the State Vs. Pawan, SC No. 91/10, (Contd.. pg-13) bag and suitcase found in the said room. He further deposed that he had not prepared the seizure memo of copy of verification form handed over by Anek Pal and had checked the record of PS Sangam Vihar but no such form was received. Original of verification form was not seen by him. Neither verified the handwriting on the said verification form mark A. he further deposed that he received information by Dr. Aggarwal at about 4/4.30 pm but do not remember if he recorded that information in DD register on 12.12.09. Dr. Aggarwal was not present when the accused was arrested. He further deposed that he do not remember the name of staff at whose instance the accused was apprehended and went to Office of Biotech at around 5 pm. Further had not seized any document from said office to know whether accused was working there or not and stated that he was not the employee but used to prepare tea there. He further deposed that he reached the jhuggi of the accused at about 6.45 7pm and there were numbers of jhuggis at that camp, public had gathered at spot but had not joined any public person in the investigation. Key and mobile were seized in front of wife of the accused but wife of the accused was not made the witness to seizure memo. He further deposed that he first time tried the key by putting into the lock on the last date of hearing but there is no key numbers engraved and further no nos were also mentioned on the lock. He further deposed that landlord Anek Pal was not made witness to the seizure of lock.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-14) Material Exhibits:
20. Ex.PW7/A , DD No. 24 A regarding information of foul smell coming from the room at spot. Ex.PW21/A is the rukka prepared by the IO at the spot pursuant to which FIR Ex.PW3/C was prepared.
Ex/PW21/A is the rough site plan, Ex.PW2/A is the seizure memo of the lock, Ex.PW11/A is the arrest memo of the accused, Ex.PW11/C is the disclosure statement of accused, Ex.PW11/D is the seizure memo of muffler and pointation memo of the spot, Ex.PW11/E is the seizure memo of key and mobile phone recovered at the instance of accused.
21. Ex.PW15/A1 to A7 are the photographs of the locked room and the dead body, Ex.PW10/C is the call detail record of mobile No. 9990903785 of deceased Vijay Kumar, Ex.PW4/A is the postmortem report of the deceased Vijay Kumar wherein doctor opined the cause of death is asphyxia due to strangulation and smothering by soft material, Ex.PW4/B is the subsequent opinion given by the doctor by opining that the injuries on the dead body could be caused by the muffler as produced by police.
22. In statement u/s 313 Cr.P.C accused denied all incriminating circumstances put to him and taken usual stand that he is falsely State Vs. Pawan, SC No. 91/10, (Contd.. pg-15) implicated and not opted to lead defence evidence .
23. Ld. Counsel for the accused submitted that the present case is based on the circumstantial evidence and the prosecution unable to prove even a single circumstance against the accused. Ld. Counsel for the accused submitted that the landlady PW1 had testified that on the day of incident, accused Pawan Kumar accompanied with three persons but none of the other three persons were examined by the police. Ld. Counsel for the accused further submitted that PW1 and PW2 Landlord and Landlady even could not show any rent receipt or rent agreement and there is no other independent corroboration that the accused Pawan Kumar was having room on rent in their premises. Therefore, it cannot be relied that the accused was their tenant. Ld. Counsel for the accused further submitted that there is no investigation how the police came to know about the location of accused Pawan Kumar. PW21 IO submitted that on the basis of tenant verification form, he came to know that accused is working in faith biotech company, Krishna Market, Lajpat Nagar but neither the landlord nor the landlady PW1 and PW2 had deposed that they had ever executed a tenant verification form nor that tenant verification form bears signature of landlady or landlord. The original of that tenant verification form is also not traced in the police records. Subsequently, PW11 & 20 had deposed that none had accompanied them for arrest of accused at Krishna Market, Lajpat Nagar. PW11 and PW20 further State Vs. Pawan, SC No. 91/10, (Contd.. pg-16) stated that they alongwith IO arrested the accused but none of them know the particulars of the accused before nor they were having any photograph or sketch of the accused. Therefore, the arrest of the accused by them is on the face of it fictitious. Ld. Counsel also submits that the IO PW21 testified that accused was arrested at the instance of staff member of faith Biotech company but no statement of staff of Biotech company was recorded nor they were made witness to the arrest.
24. Ld. Counsel for the accused further submitted that despite the presence of wife of accused at the time of recovery of mobile phone and further despite the presence of landlord and landlady at the time of recovery of muffler none of them were joined in investigation and nor their signatures were taken on the seizure memo of recoveries. Therefore, these recoveries are all false and fictitious. Ld. Counsel for the accused submitted that prosecution could not prove any of the circumstances alleged against the accused i.e, last seen, arrest of the accused, recoveries from the accused and the alleged motive because the only witness to motive wife of accused has not supported the prosecution case. Therefore, prosecution unable to prove its case beyond reasonable doubt and accused is entitled for benefit of doubt.
25. Ld. Addl. PP on the other hand submitted that last seen evidence is clearly proved by statement of PW1 landlady and the onus is on the State Vs. Pawan, SC No. 91/10, (Contd.. pg-17) accused to prove his innocence because the dead body was recovered from her room. Ld. Addl. PP also submitted that pursuant to the arrest of the accused, the incriminating recovery of mobile phone, key and muffler was recovered at the instance of accused. Ld. Addl. PP further submits that minor inconsistencies in the circumstances of arrest and recovery do not casts any suspicion over the prosecution case. Ld. Addl. PP further submits that PW6 Rashmita though had turned hostile and had not supported the prosecution case but in cross examination after being turning hostile, she stated that about one and half months prior to the incident, Pawan Kumar came to know about the room where she was residing with Vijay Kumar. This fact in itself shows that motive for killing the deceased was illicit relations of PW6 with the deceased Vijay Kumar. ld. Addl. P.P. submits that the accused had not even explained how the dead body of the deceased found in his rented room. Prosecution, therefore, have proved all the circumstances beyond doubt.
26. Arguments heard.
27. There is no direct evidence and entire prosecution case is based on circumstantial evidence. The material circumstances are last seen evidence, recovery of dead body from the rented room of accused Pawan Kumar, recovery of mobile phone of the deceased Vijay Kumar from the possession of accused Pawan Kumar. Further, recovery of State Vs. Pawan, SC No. 91/10, (Contd.. pg-18) muffler, key at instance of accused Pawan Kumar and the alleged motive of killing deceased Vijay Kumar by accused because of deceased love affair and illicit relations with the wife of accused Pawan Kumar.
28. The prosecution story is that accused Pawan Kumar had taken on rent one room at second floor in H.No. E145, E Block, Sangam Vihar, New Delhi owned by landlady PW1 Smt. Aparna and PW2 Anek Pal @ Rs.700/ pm. Accused Pawan Kumar on the night of 06.12.09 alongwith two associates at around 11 pm came to this rented room and met the landlady PW1 Smt. Aparna and handed over Rs. 500/ as balance. After that accused with his associates went to his room. On 11.12.09 PW Aparna noticed some foul smell coming out of the rented room of the accused Pawan Kumar. She told this fact to her husband who thereafter, called police and police on reaching the spot peeped through roshandan and found the dead body. Further police before breaking of lock of the room, taken its photographs and thereafter, removed the dead body to AIIMS. On postmortem, the cause of death opined to be asphyxia due to strangulation and smothering by soft material.
29. During investigation as per the testimony of investigating officer, the accused was found to be working in some 'faith biotech' company in Krishna Market and pursuant to call from his employer Dr. Aggarwal, State Vs. Pawan, SC No. 91/10, (Contd.. pg-19) he was arrested from near the Biotech office at Krishna Market on 12.12.2009 and thereafter, at his instance the rented room was pointed out and the mobile phone and key of the lock was recovered from his jhuggi at Sangam Vihar and thereafter, the statement of his wife PW6 Rashmita was recorded who stated that the accused Pawan Kumar killed deceased Vijay Kumar due to her love affair with deceased Vijay Kumar. The detail analysis of circumstances as relied by prosecution as follows.
Circumstance of last seen:
30. PW1 Aparna landlady testified that she rented one room on second floor of her premises to accused Pawan Kumar on 10.11.09 @ 700/ and accused on 06.12.09 at around 11 pm came alongwith 3 persons and paid Rs. 500/ to her as a balance rent and after paying the rent went alongwith those persons in rented room and on 11.12.09 when she went to second floor she got foul smell and thereafter, the police was informed by her husband Anek Pal (PW2). PW2 Anek Pal has also deposed that on 10.11.09 one room was let out to accused Pawan kumar and when he came back from his native place on 07.12.09 his wife Aparna had told him that accused Pawan Kumar had come to room with some other person and further on noticing foul smell, he called the police.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-20)
31. Ld. counsel for the accused tried to impeach the testimony of PW1 Smt. Arpana and PW2 Anek Pal by arguing that these PWs could not produce any rent receipt neither any rent agreement. Further, tenant who is residing adjoining to alleged room of Pawan Kumar though PW1 specifically stated that one Mr. Ravi resided with his wife and two brothers at the second floor in the adjoining room was not examined, therefore prosecution even cannot prove the tenancy of Pawan Kumar and his connection with the said room. Ld. counsel also submits that PW1 Smt. Aparna alleged witness of last seen even had not told in her statement that dead body recovered was of person who accompanied the accused on 06.12.09 at around 11 pm.
32. The entire premises where the rented room was located made up of 25 yards plot and consists of total 5 rooms and on second floor in room adjoining Pawan Kumar, one another tenant family was residing and in these kinds of places, one hardly came across with rent receipts and rent agreements. Both PW1 Smt. Aparna and PW2 Anek Pal landlord do not appear to be anyway interested witnesses and had no relations or enmity with Pawan Kumar. Therefore, their testimony with regard to the fact that accused Pawan Kumar was their tenant cannot be looked with suspicion and even non identifying the dead body of the person who accompanied accused Pawan on that fateful day on 6.12.09 by PW1 cannot be looked with suspicion in the facts and circumstances when accused came at 11 pm with his associates. Therefore, the State Vs. Pawan, SC No. 91/10, (Contd.. pg-21) testimony of PW1 Smt. Aparna that accused Pawan accompanied 3 other persons to the rented premises on the fateful day cannot be disbelieved and appears to be trustworthy.
Circumstance of finding dead body of deceased Vijay Kumar in the rented room of Pawan Kumar:
33. Both PW1 Aparna and PW2 Anek Pal deposed that they had rented the said room in which dead body was found to Pawan Kumar and police had also reached the said room on receiving the call from PW2 Anek Pal and after break opening the lock of the room, found the dead body in the said room. Number of photographs of locked rook of deceased were taken, number of other police witnesses deposed that dead body found in that rented room. Therefore, this circumstance that the dead body was found in the rented room of accused Pawan Kumar is reliable and credible.
Circumstance of Arrest of the accused:
34. As per prosecution story, accused was arrested vide arrest memo Ex.
PW11/A on 12.12.09 at around 6.15 pm by the investigating officer Satya Pal Singh PW21 in presence of PW11 SI Sanjay Kumar and PW20 HC Shrawan at Krishna Market, Lajpat Nagar.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-22)
35. PW11 SI Sanjay Kumar in his testimony stated that on secret information, accused Pawan kumar was arrested from Krishna Market, Lajpat Nagar whereas HC Shrawan (PW20) who joined investigation on 12.12.09 alongwith IO PW21 and SI Sanjay Kumar (PW11) deposed that they went to Krishna market and apprehended accused Pawan from there but had not stated anything about secret information or otherwise. On the other hand PW21 IO deposed that they went to Krishna market to arrest accused because of phone call received from Dr. Aggarwal employer of accused Pawan Kumar. Therefore, there appears inconsistency on the factum on what information accused Pawan Kumar was located at Krishna Market , Lajpat Nagar.
36. PW11 SI Sanjay Kumar in his statement has not mentioned anything about the name of the employer or the place of employment of accused i.e, faith biotech at Krishna Market, Lajpat Nagar neither this fact is disclosed by PW20 HC Shrawan. PW11 SI Sanjay Kumar in his cross examination even could not tell at what time they left the PS. He deposed in cross examination that he cannot tell whether it is 3, 4 or 2 pm and even could not tell how many shops are there in Krishna market Lajpat Nagar whether 10,15,20,100 nor could tell the width of road where the accused was arrested. He further deposed in cross examination that apart from 3 officials i.e, himself, IO and HC Sharwan nobody else was with them and IO was not having sketch or State Vs. Pawan, SC No. 91/10, (Contd.. pg-23) photo of accused with him and police had not joined any beat official or any public person in arrest proceedings. PW20 HC Shrawan deposed he joined the investigation at about 4 pm and he himself, IO and SI Sanjay nobody else was present and accused was arrested in front of his office but could not tell particulars of office and further he do not remember that IO had any photograph or sketch of accused.
37. Both these witnesses are wavering on answering the questions regarding when they left the PS and location from where accused was arrested, the width of the market, number of shops located there and how they identified the accused. Both these witnesses stated that only these 3 officials were present at the time of arrest of accused Pawan and none had seen accused Pawan before. PW11 stated that accused was arrested outside a shop, PW20 stated that he was arrested outside some office. Further when none of these witnesses had seen the accused Pawan Kumar, how they have identified and apprehended accused Pawan Kumar. This casts apparent doubt over arrest of accused in the manner alleged by these witnesses.
38. PW11 SI Sanjay Kumar in cross examination stated that the site plan of the place from where the accused was arrested was not prepared whereas PW20 in cross examination stated that site plan of place of arrest of accused was prepared.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-24)
39. PW21 IO deposed that he got a call from Dr. Aggarwal, the owner of faith Biotech where accused was working and on 12.12.09 and on pointing out of one staff member of that company, accused was arrested. PW11 and PW20 had not deposed about any staff member or any office of faith Biotech at Krishna Market. Further there is no statement of Dr. Aggarwal of Faith Biotech or staff member on whose instance the accused was arrested. There is no independent witness joined in at the time of arrest of accused.
40. PW11, PW20, PW21 (IO) deposed after arrest of accused, arrest memo Ex. PW11/A was prepared at place of arrest i.e, Krishna Market. Further, personal search memo Ex.PW11/C and disclosure statement was recorded. Perusal of coloumn no. 7 to arrest memo Ex.PW11/A shows that information of arrest was communicated to his wife Rashmita. Surprisingly, in that coloumn there exist signature of his wife Rashmita. The obvious question that arose when Rashmita was not present at place of arrest how her signatures were obtained on arrest memo which clearly points towards fact that arrest memo was not prepared at place of arrest. Therefore, entire circumstance of arrest as alleged by the prosecution appears to be false and fictitious. Circumstance of pointation of place of incident by accused and recovery of muffler at his instance after his arrest:
State Vs. Pawan, SC No. 91/10, (Contd.. pg-25)
41. PW11 SI Sanjay Kumar deposed that after arrest the disclosure statement of accused was recorded. Thereafter, they alongwith accused went to H. No. 145 E Block Sangam Vihar (i.e, spot) . Accused took out one muffler from a suitcase which was lying in the room.
42. PW20 also deposed on the same lines and stated that a muffler was recovered from a suitcase at instance of accused Pawan from said room. PW21 IO on the other hand submitted that after arrest of accused the accused was first taken to his jhuggi where the mobile and one key of the lock of the room at Sangam Vihar was recovered thereafter, the accused was taken to the spot at Sangam Vihar and a muffler was recovered at his instance from suitcase. This witness has changed the sequence whereas PW11 and PW20 had deposed that first they went to spot and thereafter to jhuggi at Sangam Vihar.
43. PW11, PW20 and PW21 deposed that accused recovered muffler from suitcase lying at his room (i.e, spot). PW2 Anek Pal in his cross examination stated that on 11.12.09 when the police came and recovered the dead body, they also seized the clothes from said room and also one attachi from there which consists some clothes and had taken away entire articles from that room. PW2 had categorically stated that police had taken away the clothes and attachi from the room and further taken away entire articles from that room. Therefore, there is no question of lying of a suitcase in that room.
State Vs. Pawan, SC No. 91/10, (Contd.. pg-26)
44. The muffler was seized vide seizure memo Ex. PW11/D witnessed by PW20 and PW11 SI Sanjay. PW20 HC Shrawan in his cross examination deposed that after arresting accused they straightaway went to room without taking any permission from landlord or landlady though IO had talk with a man inside house but he do not know the said man and further do not remember whether there was any lady in the house or not, further said man did not accompany them to room. There were two rooms but he do not know whether anybody was present in adjoining room or not. He further deposed that IO had called a person who met him downstairs to witness proceedings but he did not come. PW11 SI Sanjay Kumar deposed that after arrest of accused they reached the spot at around 7.30 and on knocking the door the said house was opened by landlady and they went upstairs and landlady accompanied them to second floor and room was opened in presence of the landlady. But landlady was not joined as a witness to recovery proceedings.
45. PW21 IO deposed that at the time of recovery of muffler landlord Anek Pal (PW2) was present but he was not made the witness of seizure. PW11 SI Sanjay do not talk of the landlord and only of the landlady and stated that when they went, she opened the ground floor whereas PW20 Shrawan Kumar stated that said house ground floor was already open and they straightaway went to second floor and one State Vs. Pawan, SC No. 91/10, (Contd.. pg-27) man was at ground floor called by IO but he did not come to become witness, IO stated that he did not joined Anek Pal as a witness. There is apparent inconsistency in statement of all these three witnesses with regard to presence of landlady and landlord. PW20 stated that the man refused to become the witness whereas PW21 IO stated that he had not joined landlord as a witness. And according to PW11 landlady was present and the said room was opened in her presence but she was not joined as a witness to recovery. The non joining of independent witness to the recovery of muffler in present facts and circumstances therefore casts grave suspicion on the alleged recovery of muffler and pointation of spot by the accused.
46. PW1 landlady Aparna and PW2 landlord Anek Pal in their deposition even had not stated that the above said police officials came with the accused at their house on 12.12.09 therefore, this circumstance that the police recovered a muffler from his room at the instance of the accused appears to be all false and fictitious.
Circumstance of Recovery of mobile phone and lock key at the instance of accused Pawan Kumar:
47. As already discussed there is an inconsistency of sequence. PW11 and PW20 stated that accused after arrest was taken to the spot i.e, the room from where dead body was recovered whereas PW21 IO stated State Vs. Pawan, SC No. 91/10, (Contd.. pg-28) that accused after arrest was taken at his jhuggi from where at his instance a mobile phone and key of the lock were recovered, thereafter, he was taken to the spot.
48. PW11 deposed that from the jhuggi at Jal Vihar Lajpat Nagar, accused recovered mobile phone made Micromax and a key which is key of lock of the rented room (i.e, spot). In cross examination he stated that wife Rashmita was present at jhuggi but she was not joined as a witness in recovery proceedings and other public persons were also not joined as a witness to recovery proceedings and do not remember whether there was any sim card in mobile phone or not. PW20 deposed that there were 4050 jhuggis in the said Jal Vihar , Madrasi Camp, Lajpat Nagar and he do not know whether jhuggi was closed or open or there was any lock or not and number of other people from other jhuggis were collected at the time of recovery but he is not sure whether anybody was inside the jhuggi and do not remember whether wife of accused was inside the jhuggi and further there was no sim card inside the phone. IO PW21 in his cross examination deposed that public gathered at the spot but he had not joined them in investigation nor his wife was made witness to seizure memo. Despite presence of number of public persons no one was joined a witness to recovery proceedings. Further PW20 even could not tell whether wife of accused was present at jhuggi or not or that jhuggi was open or closed which clearly creates doubt whether police had taken accused to said State Vs. Pawan, SC No. 91/10, (Contd.. pg-29) jhuggi. No explanation given for non joining of Ms. Rashmita, wife of accused in proceedings. Therefore, this circumstance of recovery of mobile phone and key in the manner suggested by prosecution if seen cumulatively with other circumstances of arrest and recovery of muffler etc., then it all appears to be false and fictitious. Motive:
49. Prosecution for the purpose of motive has recorded the statement of Rashmita wife of accused Pawan who stated to the police in her statement that she was residing with Vijay as wife because accused Pawan used to do lot of beating and quarrel with her but accused Pawan somehow searched her and took her at D Block Sangam Vihar. On 6.12.09 at around 10 pm, deceased Vijay Kumar had told her that he is going for taking money from accused and will come back in the morning but he did not come back on the other hand she tried to contact him but could not contact deceased Vijay. And on 09.12.09 when she saw the mobile of Vijay with accused, he told her that he had killed Vijay. This witness Ms. Rashmita wife of deceased Pawan is examined as PW6 but she in her deposition before court had not supported the prosecution version and turned hostile.
50. Ld. Addl. PP submits that on being declared hostile she was cross examined and in her cross examination she deposed that after 1 and State Vs. Pawan, SC No. 91/10, (Contd.. pg-30) half month prior to incident Pawan Kumar knew about her relation with Vijay Kumar and one day in absence of Vijay, accused came and took her and children forcibly to his house in D block. Ld. Addl PP submits that this witness therefore had admitted that she was living Vijay Kumar and Pawan kumar had taken her to D block on knowing the same therefore, the connection of Vijay Kumar deceased and Ms. Rashmita established despite her bare denial that she do not know any person in the name of Vijay Kumar.
51. Ld. Defence counsel submitted that in the later lines she again denied that accused Pawan had taken her form the house of deceased Vijay forcefully to D block, Sangam Vihar therefore, this witness had not supported on the factum that she was living with deceased Vijay Kumar. Ld. Counsel for defence submitted this prior omission is only due to fact as witness is illiterate and could not understand questions very clearly. This witness in cross examination further deposed that she do not know about any relations with deceased Vijay and Pawan Kumar.
52. The entire prosecution case on the circumstance of motive bank upon the statement of PW6 Ms. Rashmita wife of the accused and she had not supported the same. In her statement u/s 161 Cr.P.C she has deposed that she stated to the police that she got to know Vijay Kumar because he was residing in Chirag Delhi near to the house of his State Vs. Pawan, SC No. 91/10, (Contd.. pg-31) brother Krishna and thereafter had come with him in B Block sangam Vihar but the police has not investigated from his brother or any member of the vicinity at Chirag Delhi or B Block Sangam Vihar about her relationship with deceased Vijay Kumar. In her statement she also stated that she tried to call Vijay Kumar on 07.12.09 on his number 9990903785 but police has not investigated from which mobile phone she called the mobile of deceased Vijay Kumar. Call details of Mobile phone record Ex.PW10/C shows that one call was received on the mobile of deceased on 07.12.09 from 9899019882 but police has not investigated to whom this mobile number belong. Police has not investigated on the associated circumstances which could help the police to further corroborate the aspect of motive. Therefore, once PW6 Rashmita had not supported the prosecution version in her deposition before court then on her mere disclosure that accused took her from house of Vijay in no manner could help in proving this circumstance of motive conclusively without further corroboration. Mobile phone of deceased Vijay Kumar:
53. According to police the Micromax mobile phone recovered from accused was having the Idea cellular number i.e, 9990903785 and this was in the name of PW5 Naveen Kumar. PW5 Naveen in his deposition deposed that he had given the identity proof to deceased Vijay Kumar to get the mobile connection because deceased did not State Vs. Pawan, SC No. 91/10, (Contd.. pg-32) had the ID proofs. Therefore, this circumstance that the deceased was having mobile no. 9990903785 is proved. Mobile call details is ex. PW10/C which shows that on this mobile one call was recieved on 7.12.09 at around 18.36 (6.36 pm) and duration of that call was of 28 seconds from mobile no. 9899019882 but police has not investigated to whom this number belonged. It creates suspicion that deceased might be alive even on 07.12.09. as from medical evidence it can't be definitely inferred how many days back the deceased got died. Further there are number of calls received on this mobile on 6.12.09, 3.12.09 and 1.12.09 but there is no investigation by the police on call details. No recovery of SIM card:
54. As per seizure memo of mobile recovered from accused of deceased Vijay Kumar, there was no SIM card found present in the mobile. The circumstances of arrest, recovery of muffler, mobile, keys are as discussed before are all disbelieved. PW11 in cross deposed that he do not remember whether there is any sim card in mobile or not, though PW20, PW21(IO) stated that no SIM card was there in mobile. SIM card was important piece of evidence which could help to unfold the true story. Further, investigation also not conducted over the phone numbers in call details. Police has not interrogated accused in his disclosure Ex.PW11/C to elicit information where SIM card has gone.
This non explanation of missing of SIM card created further suspicion State Vs. Pawan, SC No. 91/10, (Contd.. pg-33) on police version.
Tenant verification form:
55. PW21 IO in his deposition testified that from the tenant verification form supplied by landlord Anek Pal (PW2) he came to know that accused was working in Faith Biotech company, Krishna Market, Lajpat Nagar. Thereafter, he contacted Dr. Aggarwal of Faith Biotech and at the instance of staff member accused Pawan was arrested. This tenant verification form is Mark A and this witness stated that the original deposited in police station is not found. This tenant verification form even do not bear the signature of landlord Anek Pal, there is no seizure of this tenant verification form prepared when taken from PW2 Anek Pal. PW2 Anek Pal in his deposition of his wife PW1 Aparna had not stated that any tenant verification form was filled by them. No other PW or police official stated that a tenant verification form was received by IO from landlord Anek Pal. Further even no employee of Faith Biotech was ever examined during investigation by police. This tenant verification form looks completely fictitious and appears to prepared by the IO to connect the accused with Faith Biotech company to legitimise his arrest.
56. Ld. Addl. PP submitted that the deceased Vijay Kumar died in the room of accused Pawan Kumar and therefore the onus is on the State Vs. Pawan, SC No. 91/10, (Contd.. pg-34) accused Pawan Kumar to rebutt this circumstance. The last seen evidence is duly proved through the deposition of PW1 Aparna. This contention of Ld. Addl. PP has some force that now it is the duty of the accused to at least offer an explanation how the deceased body came to his room .
57. PW1 Landlady Aparna in her deposition stated that accused Pawan on that day (i.e, 06.12.09) accompanied with 3 other persons went to his room and thereafter he had not seen all of them and noticed the foul smell on 11.12.09 i.e, after 5 days. None of the witnesses has seen when these persons had left the house. Police has not investigated what are all other 3 persons . PW21 IO in cross examination stated that he tried to inquire from the accused about the other persons but he had not told him. Whereas, as per disclosure statement of the accused Ex.
PW11/C, accused disclosed that there are two persons and second person has left even before going to his room at second floor though this fact is not corroborated by PW 1 Aparna who stated that all associates of accused went inside the room alongwith accused.
58. This bald explanation of investigating officer (PW21) in cross examination that accused had not told about the other persons cannot be relied upon because there are circumstances as already discussed which police had not investigated. A call was received on mobile of deceased on 7.12.09 at around 6.36 pm i.e, after one day of the incident State Vs. Pawan, SC No. 91/10, (Contd.. pg-35) but that call was not investigated by the police, no explanation for non investigation on that call was given. Further number of other calls which were received on mobile of Vijay were investigated nor any investigation conducted where SIM card was gone, which creates doubt that it was not at all with accused. Further the fabrication of tenant verification form by the police points towards fishy investigation conducted by the police appears just to legitimise the arrest of accused Pawan Kumar. It is also come in evidence that there is adjoining room to the rented room of accused where one Ravi alongwith his wife and two brothers were residing and the police has not even examined those persons who can very well tell what happened in the second floor of 25 yards premises on the day of incidence i.e, 06.12.09. Further, why foul smell is not noticed by them. These lapses coupled with fictitious circumstances of arrest and recoveries as already discussed, made this last seen circumstance amorphous and weak.
59. It is settled principle of appreciation of evidence in criminal case based on circumstantial evidence that when the case of the prosecution rests solely on the circumstantial evidence, the circumstances from such conclusion of the guilt of the accused is sought to be drawn must be cogently and firmly established and they should be conclusive in nature. The circumstances, taken together must form a chain of evidence, which is so complete that it does not give a reasonable ground to draw a conclusion consistent with the innocence of the State Vs. Pawan, SC No. 91/10, (Contd.. pg-36) accused and must show that in all human probabilities the offence was committed by none other than the accused. The prosecution in present case could not prove any of the circumstances i.e. motive, last seen, arrest of the accused, recovery of mobile phone, muffler and key of the locked room from where the dead body was recovered.
60. Thus, prosecution failed to prove its case beyond any reasonable doubt hence accused is granted benefit of doubt and therefore acquitted of charge u/s 302 IPC. Accused is further directed to furnish personal bond in sum of Rs. 20,000/ and one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 17th August, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Pawan, SC No. 91/10, (Contd.. pg-37)