Delhi District Court
State vs Hira Lal on 17 March, 2018
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST: TIS HAZARI COURTS: DELHI
SC No.57505/2016
FIR No.162/2012
U/s. 302/34 IPC
P.S Punjabi Bagh
In the matter of :
State
versus
1. Hira Lal
S/o Manmod
R/o Jhuggi no.150,
Mahatma Gandhi
Camp, West Punjabi
Bagh, Delhi.
2. Nitin @ Nanhe
S/o Hari Shankar
R/o Jhuggi no.199,
Mahatma Gandhi
Camp, West Punjabi
Bagh, Delhi.
Sessions Case No. 57505/16 Page 1/55
Date of Institution : 10-09-2012
Date of reserving Judgment : 20-02-2018
Date of pronouncement : 17-03-2018
Appearances:
For the State : Ms. Reeta Sharma,
Additional Public Prosecutor
For Accused Hira Lal :Sh. Vikram Dua, Advocate
For Accused Nitin :Sh. Shanker Dutt, Advocate
JUDGMENT
Accused persons namely Hira Lal son of Manmod, aged 25 years and Nitin @ Nanhe son of Hari Shankar, aged 20 years were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973, (Cr.P.C) i.e. charge-sheet submitted on 08.08.2012 upon conclusion of investigation into First Information Report (FIR) No. 162/2012 of Police Station Punjabi Bagh for offence punishable under Section 302 /34 of the Indian Penal Code, 1860 (IPC).
Prosecution Version:
2. As per the prosecution story, on 10.05.2012,on receipt of DD No.11A regarding Sessions Case No. 57505/16 Page 2/55 a dead body found lying near Nala (drain), Mahatma Gandhi Camp, Assistant Sub Inspector (ASI) Sanwar Mal alongwith Constable Madan Lal reached at Ganda Nala (drain), Mahatma Gandhi Camp, West Punjabi Bagh, New Delhi, where they found the dead body of one male person, aged about 24-25 years, whose head was towards West and legs were towards East, wearing blue colour jeans, light orange colour black and yellow strip T-
shirt and one red colour underwear. There was a warm patti (bandage) on the right hand of the dead body and there was a black thread in his neck which had a black colour zarkan locket. On the right wrist of the dead body, words 'Pankaj' and 'Ma' were tattooed in Hindi. There were also symbol of Hindu, Muslim, Sikh and Christian religions tattooed on the right arm of the dead body with 'PK' word tattooed in English. On the forehead near the right eye, there was an injury from which the blood was oozing. Beside the dead body, there was a concrete road stone weighing about 15 kg, which had blood stains on it. One slipper was Sessions Case No. 57505/16 Page 3/55 there towards legs and other was towards the head. On inquiry, the name of the deceased was revealed to be Pankaj son of Ram Swarup resident of Jhuggi no.40, Rajiv Gandhi Camp Road No.77, West Punjabi Bagh, New Delhi. SI Sanwar Mal informed the SHO and called the crime team at the spot. The spot was photographed by the crime team. SI Sanwar Mal seized the blood sample, earth control, blood stained earth control, slippers and the blood stained road stone. SI Sanwar Mal also prepared the rukka and sent the same through constable Madan Lal to police station for registration of FIR and prepared inquest papers. Thereafter, Inspector Virender Dalal reached at the spot who sent the dead body to Sanjay Gandhi Memorial (SGM) Hospital for postmortem examination and prepared the site plan. Further investigation of the case was handed over to Investigating Officer (I.O) Inspector Maninder Singh. During the investigation, I.O recorded the statement of Ram Kumar @ Bunty, brother of the deceased who stated that on 8.5.2012, the deceased had Sessions Case No. 57505/16 Page 4/55 telephonic conversation with him and told that he had a quarrel with one boy namely Hira Lal resident of Mahatma Gandhi Camp, who had threatened to kill the deceased. Ram Kumar @ Bunty further stated that he had given one mobile phone Make Nokia 1650 to the deceased for using the same. I.O also recorded the statement of one Ram son of Nathu Ram who stated that on 9.5.2012, he consumed liquor with his friends Guddu and Hira Lal and at about 9.30/10 p.m, after consuming liquor, when they started to leave for their house, accused Nitin @ Nanhe came to them and told Hira Lal that deceased was sitting near the nala (drain). Thereafter, Hira Lal left with Nitin @ Nanhe. Ram further stated that on the next day, he came to know that Pankaj was murdered at night.
3. During the investigation, on 9.5.2012, on the secret information that both the accused persons were trying to abscond, I.O formed a team and apprehended both the accused persons namely Hira Lal and Nitin @ Nanhe on the pointing out of the secret informer from ring Sessions Case No. 57505/16 Page 5/55 road bus stop, near crematorium, Punjabi Bagh. On interrogation, both the accused persons admitted their involvement in the commission of the offence and stated that they murdered the deceased as he used to bully and insult them in front of others. Accused persons also stated that they took out two mobiles from the pocket of the deceased. I.O recovered the mobile phone from the possession of accused Hira Lal, while accused Nitin stated that he dropped the mobile phone while running after the incident under the influence of liquor. I.O recorded the disclosure statement of both the accused persons. Both the accused persons got recovered the clothes which they were wearing at the time of incident. Accused persons also got recovered weapon of offence i.e blood stained stone with which they had killed the deceased and threw the same thereafter.
4. I.O also recorded the statement of the witnesses, sent the exhibits to FSL, collected the postmortem examination report, obtained subsequent opinion, got the Call Detail Record (CDR) and got the scaled site plan prepared, Sessions Case No. 57505/16 Page 6/55
5. After completion of the investigation, the I.O came to the conclusion that sufficient evidence had come on record against the accused persons namely Hira Lal and Nitin @ Nanhe for commission of offence under Section 302/34 IPC. The charge-sheet was prepared against accused persons namely, Hira Lal and Nitin @ Nanhe and filed in the court.
6. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate, Delhi took cognizance of offence under Section 302/34 IPC and vide order dated 30.08.2012 after complying with the provisions contained in Section 207 Cr.P.C committed the case to the Court of Session for 10.09.2012.
Charge:
7. On 20.09.2012, after hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused persons, charge was framed against the accused persons namely, Hira Lal and Nitin @ Nanhe for commission of offence punishable under Sessions Case No. 57505/16 Page 7/55 Section 302/34 IPC. The charge so framed was read over and explained to the accused persons to which they did not plead guilty and claimed trial.
Prosecution Witnesses:
8. To bring home the afore-mentioned charge to the accused persons, the prosecution got examined H.C Shanti Swarup (PW-1), H.C Narender Kumar (PW-2), SI Mahesh Kumar (PW-3), Ram Kumar @ Bunty (PW-4), Ram (PW-5), SI Gian Singh (PW-6), constable Goverdhan (PW-7), ASI Raj Kumar (PW-8), constable Madan Lal (PW-9), H.C Devender Kumar (PW-10), SI Kamal Singh (PW-11), constable Chand Prakash (PW-12), SI Sandeep Kumar (PW-13), Inspector Virender Dalal (PW-
14), Dr. Manoj Dhingra (PW-15), Woman S.I Prisilla (PW-16), SI Sanwar Mal (PW-17) and Inspector Maninder (PW-18), Documentary Evidence:
9. The prosecution also relied on following documents tendered into evidence i.e DD Sessions Case No. 57505/16 Page 8/55 No.11A (Ex.PW-1/A), DD No13A (Ex.PW-
1/B), DD No.14A (Ex.PW-1/C), DD No.41/A (Ex.PW-1/D), DD No.53A (Ex.PW-1/E), DD No.15A (Ex.PW-1/F), Entry in store register at serial no.3328 (Ex.PW-2/A), Entry in store register at serial no.3330 (Ex.PW-2/B), Road Certificate (RC) No.84/21/12 (Ex.PW-2/C), Road Certificate (RC) No.95/21/12 (Ex.PW- 2/D), acknowledgment of sealed parcels at serial no.2 and 3 (Ex.PW-2/E and Ex.PW-2/F), scaled site plan (Ex.PW-3/A), dead body identification statement (Ex.PW-4/A), seizure memo of mobile phone Make Nokia 1650 (Ex.PW-4/A), Receipt of dead body (Ex.PW- 4/B), mobile phone Nokia 1650 IMEI No.354163 025414242 with battery and Vodafone Sim card No.80050396572HLR2 ( Ex.P1), statement under Section 161 Cr.P.C of Ram Kumar @ Bunty (Ex.PW-4/PX), seizure memo of earth with blood, blood, earth control, slipper and two stones (Ex.PW-8/A), pair of chappal (slippers) (Ex.PW-8/P1), cloth piece (Ex.PW-8/P2), stone of road pieces in four pieces (Ex.PW-8/P3), cloth piece (Ex.PW-
Sessions Case No. 57505/16 Page 9/558/P4), one stone of road piece (Ex.PW-8/P5), one cloth bearing particulars of the present case (Ex.PW-8/P6), photographs of stones lying with the dead body (Ex.PW-8/DA, Ex.PW- 8/DB, Ex.PW-8/DC), and photographs in which stone is not visible (Ex.PW-8/DD and Ex.PW- 8/DE), statement under Section 161 Cr.P.C of SI Sanwar Mal (Ex.PW-9/PX), seizure memo of viscera, pullanda of cloths and blood gauge (Ex.PW-9/A), statement under Section 161 Cr.P.C of Ct. Madan Lal (Ex.PW-9/PX1), photographs Ex.PW-10/A to Ex.PW-10/J), 16 negatives (Ex.PW-10/B-1 to Ex.PW-10/B-16), one brown shirt (Ex.PW-12/P1), one T-shirt (Ex.PW-12/P2), one black colour pajama (Ex.PW-12/P3), purse containing currency note of Rs.500/- denomination, one I.D Card of accused Nitin and one colour photograph of accused Nitin (Ex.PW-12/P5 collectively), mobile phone Make Samsung recovered from accused Nitin (Ex.P-6), mobile phone Make Tata recovered from accused Nitin(Ex.P-7), Chinese mobile recovered from accused Hira Lal (Ex.P-8), arrest memo of accused Nitin Sessions Case No. 57505/16 Page 10/55 (Ex.PW-13/A), arrest memo of accused Hira Lal (Ex.PW-13/B), personal search memo of accused Nitin (Ex.PW-13/C), personal search memo of accused Hira Lal (Ex.PW-13/D), seizure memo of Nokia mobile 1650 (Ex.PW- 13/E), disclosure statement of accused Nitin (Ex.PW-13/F), disclosure statement of accused Hira Lal (Ex.PW-13/A), seizure memo of clothes of accused Hira Lal (Ex.PW-13/G), seizure memo of clothes of accused Nitin (Ex.PW-13/H), seizure memo of shirt of accused Hira Lal (Ex.PW-13/I), seizure memo of blood stained stone (Ex.PW-13/J), recovery memo of blood stained stone at the instance of accused Nitin (Ex.PW-13/K), pointing out memo of the spot prepared at the instance of accused Nitin (Ex.PW-13/L), pointing out memo of the spot prepared at the instance of accused Nitin (Ex.PW-13/K), site plan without scale (Ex.PW-14/A), postmortem examination report (Ex.PW-15/A), opinion (Ex.PW-15/B), endorsement on Rukka (Ex.PW-16/A), FIR (Ex.PW-16/B), Rukka (Ex.PW-17/A), Death report (Ex.PW-17/B), application for preserving Sessions Case No. 57505/16 Page 11/55 the dead body (Ex.PW-17/C), Birth certificate of accused Nitin (Mark Ex.PW-18/A1), copy of school leaving certificate of accused Nitin (Mark Ex.PW-18/A2), seizure memo of date of birth certificate as well as school leaving certificate (Ex.PW-18/B), request for conducting postmortem examination (Ex.PW- 18/C and Ex.PW-18/C1), brief facts of the case (Ex.PW-18/C2), application for subsequent opinion (Ex.PW-18/D), seizure memo of photographs of the scene of crime (Ex.PW- 18/E), Viscera result (Ex.PW-18/F) and report of blood in gauze, clothes of the accused as well as the deceased (Ex.PW-18/F) collectively.
Statements of Accused persons:
10. After conclusion of prosecution evidence, on 15.02.2017, statements of accused persons namely, Hira Lal and Nitin @ Nanhe under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were falsely implicated in the present case. The accused Sessions Case No. 57505/16 Page 12/55 persons also stated that no recovery of any weapon of offence i.e. stone was made at their instance. Further, they have been falsely implicated in the present case at the instance of Ram Kumar @ Bunty, brother of the deceased.
11. The accused persons desired to lead evidence in their defence. Accordingly, accused Hira Lal got examined his brother-in-law (Jija) Ram Lal (DW-1) and accused Nitin got examined his mother Poonam (DW-2) in their defence.
Final Arguments:
12. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State, Shri Vikram Dua, learned counsel for accused Hira Lal and Shri Shanker Dutt, learned counsel for accused Nitin @ Nanhe & also perused the entire material available on record.
13. Learned Additional Public Prosecutor argued that the present case is based on circumstantial evidence. Ram Kumar (PW-4) had a telephonic talk with the deceased who Sessions Case No. 57505/16 Page 13/55 informed him about his quarrel with the accused persons. Similarly, the testimony of Ram (PW-
5) is relevant to explain the conduct of the accused persons. Further, the mobile of the deceased was recovered from the possession of accused Hira Lal whereas the weapon of offence i.e. stone was recovered at the instance of accused Nitin which is relevant under section 27 of the Evidence Act. Learned Prosecutor further argued that there are no material discrepancies in the testimonies of prosecution witnesses. The recovery of blood stained clothes at the instance of accused persons are also relevant under section 27 of the Evidence Act. Further, the prosecution properly explained about the delay in conduct of postmortem examination wherein time since death was opined to be about 36 hours. Further, the missing of head bone as observed by the examining doctor during postmortem examination is not material as crush injury to the deceased was caused by the stone. Further, the blood group of the deceased matched with the blood group found on the clothes of accused Sessions Case No. 57505/16 Page 14/55 Nitin whereas human blood was found on the clothes of accused Hira Lal which could not be explained by the accused persons. Learned Prosecutor lastly argued that the prosecution succeeded in proving its case beyond reasonable doubts against accused persons and both the accused persons deserve conviction.
14. Per contra, learned defence counsel argued that both the accused persons were falsely implicated in the present case at the instance of Ram Kumar @ Bunty (PW-4) who made substantial improvements and deposed contradictory facts in his testimony while deposing in the court. Further, neither Ram Kumar (PW-4) nor Ram (PW-5) can be considered as last scene witnesses. The testimony of Ram Kumar (PW-4) who was a drug addict, is not worth believing and his testimony does not inspire confidence as he kept changing his version. In view of contradictory statements by the prosecution witnesses, the recovery of weapon of offence is not free from doubts nor the same is supported with the testimonies of independent public Sessions Case No. 57505/16 Page 15/55 witnesses. Further, the prosecution could not establish a clear motive on the part of the accused persons for committing murder of the deceased. The identity of weapon of offence i.e. stone is also not clear which shows that the same was planted by the IO in order to work out the clueless case. Learned defence counsel, therefore, argued that the prosecution failed to establish its case beyond all reasonable doubts and the chain of circumstances put forward by the persecution is not complete which entitle the accused persons for acquittal.
15. Learned counsel for accused Hira Lal also relied on Pappu @ Jolly v. State 2014 SCC OnLine Del. 4291, Rahisa v. State of NCT of Delhi 2011 SCC OnLine Del. 1630 and Mohd. Yunush & Anr. v. State passed on 28.01.2016 by the Hon'ble High Court of Delhi in criminal appeal no. 809/2015 in support of his contentions.
16. I have given my thoughtful consideration to the submissions of both the sides.
Sessions Case No. 57505/16 Page 16/55Statutory Provisions:
17. In the present case, both the accused persons have been charged for commission of offence under Section 302/34 IPC. The aforesaid provision under Section 302 IPC is reproduced as under:
302.Punishment for Murder-
Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
18. The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or -
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Sessions Case No. 57505/16 Page 17/55Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
19. Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299. Culpable homicide-
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
Points for Determination:
20. In the light of facts and circumstances of the case, following points for determination are arising in the present case:
(a) Whether the dead body found in between ganda nala (drain) and wall of road no.77, West Punjabi Bagh, near Mahatma Gandhi Camp, Delhi, was of one Pankaj son of Ram Swarup ?Sessions Case No. 57505/16 Page 18/55
(b) If so,whether Pankaj (deceased) had received injuries on his person which were sufficient to cause death in ordinary course of nature ?
(c) Whether the death of Pankaj (deceased) was homicidal ?
(d) Whether the accused persons were responsible for causing such injuries on the person of Pankaj (deceased) ?
Testimonies of prosecution witnesses:
21. To prove the afore-mentioned charges against the accused persons, the prosecution got examined 18 witnesses in all. For the sake of convenience, a brief description of the testimonies of all the prosecution witnesses in tabular form is as under :-
Sl.No. Name of Nature of Documentary of PW PW testimony Evidence.
PW-1 H.C Shanti Deposed about Ex.PW-1/A,
Swarup recording DD Ex.PW-1/B,
entries. Ex.PW-1/C,
Ex.PW-1/D,
Ex.PW-1/E &
Ex.PW-1/F
PW-2 HC Deposed about Ex.PW-2/A,
Narender deposit of exhibits Ex.PW-2/B,
Kumar and various entries Ex.PW-2/C
(MHC (M) ) in store room ,Ex.PW-2/D,
register. Ex.PW-2/E &
Ex.PW-2/F,
Sessions Case No. 57505/16 Page 19/55
PW-3 SI Mahesh Preparation of Ex.PW-3/A.
Kumar scaled site plan.
(Draftsman)
PW-4 Ram Kumar Identified the dead Ex.PW-4/A ,
@ Bunty body. Ex.PW-4/B
( Brother of and Ex.P1.
the Last seen witness.
deceased)
PW-5 Ram Deposed about
(Friend of accused Nanhey
accused Hira coming to accused
Lal) Hira Lal to tell him -
about the deceased
who was sitting near
nala (drain) after
consuming liquor.
PW-6 SI Gian Deposed about Ex.PW-6/A.
Singh inspecting the spot
(Incharge and preparation of
Mobile crime scene report.
Crime Team)
PW-7 Ct. Delivered the copy
Goverdhan of FIR to the senior -
(Messenger) officers and the
Learned Area M.M.
PW-8 ASI Raj Deposed about Ex.PW-8/A,
Kumar receiving Ex.PW-8/P1,
information Ex.PW-8/P2,
regarding dead body Ex.PW-8/P3,
lying near Nala Ex.PW-8/P4,
(drain) while Ex.PW-8/P5
patrolling, informing and Ex.PW-
the police station, 8/P6.
witnesssing the
seizure of case
property and
identifying the same.
PW-9 Ct Madan Joined the Ex.PW-8/P1,
Lal investigation and Ex.PW-8/P2,
witnessed the Ex.PW-8/P3,
seizure of the case Ex.PW-8/P4
Sessions Case No. 57505/16 Page 20/55
property. However, and Ex.PW-
he did not depose 8/P5
the complete facts
and was cross-
examined by the
learned Addtional
Prosecutor.
PW-10 H.C Deposed about Ex.PW-8/DD,
Devender taking photograhps Ex.PW-8/DD,
Kumar of the spot. Proved Ex.PW-8/DE,
(Photograhp negatives and Ex.PW-8/DB,
er) photographs. Ex.PW-8/DC,
Ex.PW-10/A
to
Ex.PW-10/J.
Ex.PW-10/B1
to
Ex.PW-
10/B16
PW-11 SI Kamal Deposed about Ex.PW-2/D,
Singh deposit of sealed Ex.PW-2/E,
parcels with FSL Ex.PW-2/F.
Rohini and receipt
thereof with MHC
(M).
PW-12 Ct. Chand Joined investigation, Ex.PW-12/P1,
Prakash witnessed arrest of Ex.PW-12/P2
accused persons and and Ex.PW-
conducted their 12/P3
personal search, Ex.P1, Ex.P5,
witnessed seizure of Ex.P6, Ex.P7
mobile phones and Ex.P8.
recovered from the
accused persons. .
Also witnessed
recovery of clothes
of the accused
persons, stones etc.
PW-13 SI Sandeep Deposed about Ex.PW-13/A,
Dabas arresting the Ex.PW-13/B,
accused persons Ex.PW-13/C,
Sessions Case No. 57505/16 Page 21/55
alongwith I.O, Ex.PW-13/D,
witnessed their Ex.PW-13/E,
arrest and personal Ex.PW-13/F,
search memos. Also Ex.PW-13/G,
witnessed seizure of Ex.PW-13/H,
the case property, Ex.PW-13/I,
recording of Ex.PW-
disclosure statement, 13/J,Ex.PW-
recovery of clothes 13/K, Ex.PW-
of the accused 13/L and
persons, recovery of Ex.PW-13/M.
weapon of offence Ex.PW-8/P5,
i.e stone. Identified Ex.P1,
the case property. Ex.PW-12/P1,
Ex.PW-12/P2,
Ex.P7
PW-14 Inspector Deposed about Ex.PW-14/A
Virender preparing rough site
Dalal plan and recording
statement of the
witnesses.
PW-15 Dr. Manoj Conducted the Ex.PW-15/A
Dhigra postmortem and Ex.PW-
(Incharge, examination on the 15/B
Mortuary dead body,
SGM mentioned injuries
Hospital) and gave subsequent
opinion.
PW-16 Woman SI Deposed about Ex.PW-16/A
Prisilla registration of FIR and Ex.PW-
and endorsement on 16/B
Rukka.
PW-17 SI Sanwar Prepared rukka, Ex.PW-17/A,
Mal death report, made Ex.PW-17/B,
(Initial application for Ex.PW-17/C.
Investigation presevering the dead Ex.PW-10/A
Officer) body, lifted exhibits to Ex.PW-
from the spot. 10/J.
Deposed about Ex.PW-
investigation and 8/P2,Ex.PW-
identified the case 8/P3 and
property. Ex.PW-8/P5.
Sessions Case No. 57505/16 Page 22/55
PW-18 Inspector Deposed about the Ex.PW-4/A,
Maninder investigation, Ex.PW-13/A,
(Investigation recording statement Ex.PW-13/B, Officer) of witnesses, sent Ex.PW13/C the dead body for Ex.P1,Ex.PW-
postmortem 13/D,Ex.PW-
examination and 13/E, Ex.PW-
preparation and 13/F ,Ex.PW-
witness of seizure 13/G, Ex.PW-
memos and 13/J, Ex.PW-
identified the case 13/L, Ex.PW-
property. 13/M, Ex.PW-
13/K, Ex.PW-
13/I, PW-
13/H,Mark
Ex.PW-18/A1,
Mark PW-
18/A2,
Ex.PW-18/B,
Ex.PW-18/C,
Ex.PW-18/C1,
Ex.PW-18/C2,
Ex.PW-18/D,
Ex.PW-18/F
Testimony of Defence Witness:
22. In defence evidence, accused Hira Lal examined Ram Lal (DW-1) in his defence.
23. Ram Lal (DW-1), brother-in-law (Jija) of accused Hira Lal deposed that on 10.5.2012, he alongwith accused Hira Lal was going to his work place at 8 a.m. He further deposed that there was a big crowd near nala (drain) at Punjabi Bagh. They went to see as to what had happened. DW-1 further stated that the police Sessions Case No. 57505/16 Page 23/55 came there and apprehended Hira Lal alongwith 5-6 other persons. Thereafter, DW-1 went to police station, but accused Hira Lal was not allowed to go from there. DW-1 stated that police officials also threatened to arrest him.
24. Accused Nitin also examined Poonam (DW-2) in his defence.
25. Poonam (DW-2), mother of accused Nitin, deposed that on 11.05.2012, while she was present in her jhuggi, some police personnel came from police station Punjabi Bagh and took her son Nitin to police station on the pretext of making some inquiry. DW-2 further stated that on the next day, police personnel again came to her jhuggi and asked her to give the copy of school certificate of Nitin for his date of birth proof which she submitted to the concerned police official on 12.5.2012.
Points for Determination no. (a) (b) & (c):
26. As per the testimony of ASI Raj Kumar (PW-8), on 10.05.2012 while he was patrolling the area in beat no.6 falling withing the Sessions Case No. 57505/16 Page 24/55 jurisdiction of police station Punjabi Bagh and had reached at road no.77, Mahatma Gandhi Camp at around 7:15 a.m, he was informed by some public persons about one dead body lying near the nala (drain). PW-8 reached at the spot alongwith those public persons where the said dead body was lying. PW-8 noticed the word 'Pankaj and 'Maa' written on the right hand of the dead body. On the right shoulder the signs of Hindu, Muslim, Sikhs and Christian religions were tattooed. On the right arm word 'PK' was also tattooed. PW-8 also noticed that there was a deep wound between the right side of forehead and a small injury on the cheek of the deceased. The blood was also lying on the ground near the dead body and the clothes of the deceased were smeared with blood. One big concrete stone and another small concrete stone, smeared with blood were also found near the dead body. PW-8 telephonically informed the police station Punjabi Bagh in this regard. PW- 8 came to know about the name of the deceased as Pankaj from the public persons. He also Sessions Case No. 57505/16 Page 25/55 stated that the deceased was bad character (B.C) of the area.
27. Ram Kumar @ Bunty (PW-4) had identified the said dead body to be of his younger brother Pankaj vide statement Ex.PW-
4/A. He received the dead body after postmortem examination vide memo Ex.PW- 4/B.
28. Dr. Manoj Dhingra (PW-15) alongwith Dr. Munish Wadhawan, conducted postmortem examination on the dead body of Pankaj son of Ram Swarup on 11.05.2012 which was sent by Inspector Maninder Singh of police station Punjabi Bagh with the history of found dead on 10.5.2012 at about 7.30 a.m, near ganda nala (drain), road no.77, West Punjabi Bagh. PW-15 found the following external injuries on the dead body:
(i) Deformity and fractures present over face and skull bond. Fracture of frontal temporal and partial bones of right side and the brain matter coming out of fractured side.
(ii) Deformity and fracture of nose present.Sessions Case No. 57505/16 Page 26/55
(iii) Deformity and fracture of mandible bone.
(iv) Bone missing from right frontal region of size 11 c.m. x 7 c.m.
29. On internal examination, PW-15 found the injuries to the head. Vide postmortem examination report Ex.PW-15/A, the cause of death was opined to be cranio cerebral damage due to blunt force. All injuries were ante- mortem in nature and the time since death was opined to be 36 hours.
30. In view of the testimonies of PW-8, PW-4 and PW-15, it is evident that Pankaj son of Ram Swarup sustained injuries to his head which were sufficient to cause his death in ordinary course of nature. Apparently, the death of Pankaj (deceased) was neither accidental nor suicidal, but homicidal.
31. The points for determination no.(a),(b) and (c) are decided accordingly.
Sessions Case No. 57505/16 Page 27/55Point for Determination no. (d):
32. The prosecution sought to prove following circumstances in order to bring the charge home to the accused persons:
A. Ram Kumar @ Bunty, elder brother of the deceased, had seen the deceased lastly in the company of accused Hira Lal B. Accused Nitin informed accused Hira Lal, in presence of PW-Ram, about the location of the deceased at about 10 p.m on 08.05.2012 consequent upon which both the accused persons left from the said place.
C. Both the accused persons were arrested from the bus stand situated near Shamshan Ghat, Punjabi Bagh, Delhi.
D.Mobile phone make Nokia belonging to the deceased, was recovered from the possession of accused Hira Lal.
E. The weapon of offence i.e. one stone made of concrete and tarcoal was recovered at the instance of accused Nitin.
F. Both the accused persons got recovered their blood stained clothes.Sessions Case No. 57505/16 Page 28/55
G. Both the accused persons had a motive to commit murder of the deceased who used to bully them.
33. The testimonies of prosecution witnesses to prove the afore-mentioned circumstances are discussed under the following heads:
(i) Last Seen Evidence:
34. The prosecution got examined Ram Kumar @ Bunty (PW-4), elder brother of the deceased who claimed to have seen the deceased with accused Hira Lal on 08.05.2012 at 9 a.m., at his jhuggi. A scrutiny of testimony of PW-4 reveals that initially, PW-4 expressed his ignorance about the person who murdered the deceased but later on he claimed to have seen the deceased with accused Hira Lal on 8.5.2012 at 9 a.m., at his jhuggi. PW-4 deposed that deceased was residing with him in his jhuggi. Further, one day prior to the incident i.e on 8.5.2012, the deceased had come to his jhuggi. PW-4 again said that he was residing at that time at Chanchal Park, Nangloi, Najafgarh Sessions Case No. 57505/16 Page 29/55 Road. In his further examination, PW-4 deposed that he had received a call from his brother (deceased) on 8.5.2012 that he had quarrelled with some boys of the locality. PW-4 further stated that his brother had disclosed the name of one Sanjay with whom he had quarrelled who had also torn his shirt. On 20.10.2014, while deposing in the court, PW-4 stated that the deceased had told him on telephone that accused Hira Lal and Nitin had given him injuries and quarrelled with him.
35. PW-4 was allowed to be cross-examined by the learned Prosecutor wherein he denied the suggestion that the deceased had told him on telephone that accused Hira Lal had threatened him to kill. PW-4 was confronted with his statement under Section 161 Cr.P.C Ex.PW- 4/PX wherein the said fact was recorded from point A to A. In further examination-in-chief, learned Prosecutor asked PW-4 that in his statement dated 5.9.2014, he had deposed that the deceased had disclosed the name of Sanjay who had quarrelled with him, whereas that day PW-4 deposed that deceased told him that Sessions Case No. 57505/16 Page 30/55 accused Hira Lal and Nitin had quarrelled with him and had also given injuries. Learned Prosecutor asked which of his statement was correct, on which PW-4 answered that both of his statements were correct.
36. In his cross-examination by the learned Defence counsel, PW-4 stated that the deceased had told him about quarrel with Sanjay on which PW-4 was confronted with his statement Ex.PW-4/PX where the said fact was not found recorded. PW-4 voluntarily said that the police officials told him that there was no evidence against Sanjay and PW-4 could not implicate any person in this manner.
37. On further cross-examination, PW-4 deposed that he had told the police that he had seen the deceased with accused Hira Lal, however, this fact was also not found recorded in his statement Ex.PW-4/PX. PW-4 further stated that the deceased had lastly called him at about 9/10 p.m. on 8.5.2012. However, the date 9.5.2012 was found mentioned in his statement Ex.PW-4/PX. On further cross-examination, PW-4 stated that he had not noticed the number Sessions Case No. 57505/16 Page 31/55 from which the deceased had called and then voluntarily stated that the deceased had not called him on telephone, rather he had called his elder brother Suresh.
38. In view of the above-mentioned deposition of PW-4, it is clear that the version given by PW-4 is not consistent. The testimony of PW-4 regarding having seen the deceased lastly in the company of the accused Hira Lal is inherently contradictory in nature. PW-4 kept on changing his version which makes it hard to believe his testimony.
39. It is also clear from the testimony of PW- 4 that he was intimated by the police about the murder of the deceased and the accused persons were also shown to him in the police station. PW-4 also stated that besides the accused persons, one Ram and son of Nathni were also shown to him by the police in the police station on the next day of the incident at about 10 a.m and all four persons were handcuffed. Further, the police had told PW-4 that blood of the deceased was found on the clothes of accused Hira Lal and on the mobile phone recovered Sessions Case No. 57505/16 Page 32/55 from accused Nitin. PW-4 also stated that he had seen blood stains on the clothes of accused Hira Lal who was wearing shirt and pant, when he saw him in the police station. It is worthy to note here that as per the prosecution version, accused Hira Lal, after his arrest on 11.5.2012 at around 7 p.m., led the police to his jhuggi from where he got recovered his shirt which he was wearing at the time of incident. However, the same was not blood stained.
40. PW-4 also deposed to have mentioned the name of accused Nitin in his statement dated 8.5.2012, but when confronted with statement Ex.PW-4/PX, this fact was also not found recorded.
41. In these circumstances, the testimony of PW-4 is not worth believing. PW-4 kept on changing his version again and again and stated self contradictory facts while deposing in the court. PW-4, therefore, is not a witness of truth and his testimony cannot be relied upon.
42. Another witness namely Ram (PW-5) was examined by the prosecution who deposed about a day in the month of May, 2011, when he Sessions Case No. 57505/16 Page 33/55 was on leave and had enjoyed the day with his friends namely Hira Lal and Guddu by taking liquor behind the wall of office of one Sunil under the tree of Kikar. PW-5 further deposed that at about 9.30/10 p.m on that day, accused Nanhe had come there and told the accused Hira Lal that Pankaj (deceased) was sitting near the nala (drain) after drinking liquor at a distance of 100 metres. Accused Nanhe had asked accused Hira Lal to accompany him to that place and both of them had gone away. In the morning, PW-5 came to know that Pankaj was murdered.
43. In his cross-examination, PW-5 stated that he came to know about the murder of the deceased at about 7 a.m but he had not gone to the place where the dead body was found, before going to his job. He further stated that the dead body of the deceased was found at a place which was accessible to all. PW-5 was detained by the police and thoroughly interrogated. On further cross-examination, PW-5 failed to remember the description of clothes worn by accused Hira Lal though he Sessions Case No. 57505/16 Page 34/55 claimed to be with him throughout the day. Further, PW-5 stated that he alongwith accused Hira Lal and one Guddu had consumed liquor at 11 a.m on 09.05.2012. PW-5 further stated that on that day, they had not consumed liquor after 11 a.m. Such deposition by PW-5 goes to imply that he alongwith accused Hira Lal and Guddu had remained at the said place throughout the day till 9.30 p.m but had not taken liquor after 11 a.m which does not appeal to common sense. Moreover, PW-5 could not disclose any particulars about the said Guddu. During investigation, IO also could not come across any such person namely, Guddu who might have been with PW-5 and accused Hiral Lal on 09.05.2012. Even if the deposition of PW-5 is assumed to be correct, he merely had overheard accused Nitin @ Nanhey telling accused Hira Lal that the deceased was sitting near the drain after drinking liquor which in itself is not admissible in evidence.
44. A combined reading of testimonies of both PW-4 and PW-5 reveal that their testimonies are not worth placing reliance on.
Sessions Case No. 57505/16 Page 35/55As observed earlier, PW-4 deposed inconsistent and contradictory facts and kept on changing his version again and again. The testimony of PW-5 remained in the realm of hearsay evidence. Therefore, in my considered opinion, the prosecution failed to prove the circumstance of deceased having been seen lastly in the company of accused Hira Lal, by PW-4 beyond reasonable doubt.
(ii) Arrest of accused persons :
45. In this regard, the testimonies of mainly Ct. Chand Prakash (PW-12), SI Sandeep Kumar (PW-13) and Inspector Maninder Singh (PW-
18) are worth consideration besides the testimonies of other prosecution witnesses.
46. As per the testimonies of PW-12, PW-13 and PW-18, both the accused persons were arrested on 11.05.2012 at the instance of one secret informer while they were standing at the bus stand situated near Shamshan Ghat (cremation ground), Punjabi Bagh, Delhi at around 7 p.m. Accused Nitin was arrested vide arrest memo Ex.PW-13/A and accused Hira Lal Sessions Case No. 57505/16 Page 36/55 was arrested vide arrest memo Ex.PW-13/B. The testimonies of afore-mentioned prosecution witnesses regarding arrest of both the accused persons from the said place at the relevant time, could not be contradicted in their cross- examination by the learned defence counsel.
47. Accused Hira Lal got examined Ram Lal, his brother-in-law (Jija) as DW-1 who deposed that on 10.05.2012 DW-1 and accused Hira Lal, while going to their work place at about 8 a.m, had gone near nala (drain) at Punjabi Bagh where there was a big crowd and there accused Hira Lal was apprehended by the police alongwith 5-6 other persons. In cross- examination by learned prosecutor, DW-1 stated about the presence of about 500 persons near the nala (drain) at around 7 a.m. He again stated the time to be 7.30 a.m. On further cross- examination, DW-1 stated that somebody had informed about one dead body found lying near nala (drain) on which all the persons of jhuggi camp were going there to have a look and therefore, he had also gone there with accused Hira Lal. When DW-1 was confronted with his Sessions Case No. 57505/16 Page 37/55 earlier statement about going to their work place and stopping near the nala (drain) on seeing crowd there whereas he subsequently stated about someone informing about the dead body found there which prompted them to go to have a look at the same, DW-1 stated his earlier version to be correct. DW-1 also could not explain why the police apprehended about 6-7 persons including accused Hira Lal out of the said crowd.
48. Similarly, accused Nitin got examined his mother Poonam (DW-2) who deposed that on 11.05.2012 when she was present in her jhuggi, some police personnel from PS Punjabi Bagh came and took accused Nitin with them on the pretext of making some enquiry from him. In her cross-examination, DW-2 stated that she had not taken any action when the police officials took accused Nitin from her house. She had visited the police station on the next day though as per her claim, accused Nitin was taken by the police officials on 11.05.2012 at around 10.11 a.m. Admittedly, neither DW-1 nor DW-2 ever made any complaint to the Sessions Case No. 57505/16 Page 38/55 police authorities or filed any case in the court with regard to false implication and illegal arrest of the accused persons in the present case.
49. Since the testimonies of PW-12, PW-13 and PW-18 regarding arrest of accused persons on 11.05.2012 from bus stand near Shamshan Ghat at about 7 p.m remained intact and the testimonies of both DW-1 and DW-2 are not worth believing in this regard, there is no doubt in arrest of both the accused persons from the place and at the time as mentioned by PW-12, PW-13 and PW-18.
(iii). Recovery of mobile phone make Nokia belonging to the deceased from accused Hira Lal :
50. As per the testimony of PW-12, after arrest of accused persons, he personally searched accused Hira Lal and two mobile phones i.e. one Chinese phone and other make Nokia were recovered from his possession. PW-12 further stated that one purse containing Rs. 500/-, one voter ID, one photograph and two mobile phones i.e. one of TATA company Sessions Case No. 57505/16 Page 39/55 and other of Samsung company were recovered from accused Nitin. Further, the arrest memo and personal search memo of accused persons were prepared but PW-12 had not signed the same as SI Manohar and SI Sandeep Dabas had put their signatures on the memos. In cross- examination, PW-12 failed to remember if any personal search memo of accused Hira Lal was prepared by the IO or not. It is noteworthy here that search memo Ex.PW-13/D in respect of accused Hira Lal mentions only about one Chinese phone.
51. PW-13, on the other hand, deposed that one Nokia mobile phone was recovered on cursory search of accused Hira Lal who disclosed the same to belong to the deceased. The said mobile phone was seized vide seizure memo Ex.PW-13/E. Both PW-12 and PW-13 identified the Nokia mobile phone Ex.P-1 to be the same which was recovered from the possession of accused Hira Lal.
52. PW-18, IO of the case while deposing stated in categorical terms that after arrest of accused Hira Lal, he had conducted his casual Sessions Case No. 57505/16 Page 40/55 search to find one mobile phone make Nokia from right side pocket of his pant which belonged to the deceased. PW-18 also identified the mobile phone Ex.P-1 to be the same which was seized by him. In his cross-examination, PW-18 explained that he had taken the search of accused Hira Lal twice within interval of 15-20 minutes and on both the occasions, he himself had taken his search. On further cross- examination, PW-18 stated that he had not verified about the ownership of mobile phone Ex.P-1. PW-18 also deposed that during investigation he had also seized the photocopy of one page of diary (Ex.PW-4/B) which was maintained by the brother of the deceased namely, Bunty on which IMEI number of mobile phone make Nokia was written. In cross-examination PW-18 stated that the diary from which photocopy of page (Ex.PW-4/B) was produced by witness Ram Kumar @ Bunty (PW-4) had remained in his possession and only photocopy was produced by him. The said diary in original, if any was not shown by Ram Kumar @ Bunty (PW-4) to PW-18 nor PW-18 Sessions Case No. 57505/16 Page 41/55 verified about the writer of photocopy document Ex.PW-4/B.
53. It is worthy to note here that in seizure memo Ex.PW-13/E of mobile phone make Nokia, there is a mention about one SIM number 97114 82248 of Vodafone company which was inside the said mobile phone. In cross-examination, though PW-18 stated that he had obtained the call detail record (CDR) of the said mobile number, the same was not made part of the charge-sheet. The reason furnished by PW-18 for not making the CDR part of the charge-sheet is that the IMEI number of the mobile phone Ex.P-1 matched with the IMEI number provided by Ram Kumar (PW-4) vide photocopy page Ex.PW-4/B and therefore, PW- 18 did not find it relevant to put the said CDR on record. Such explanation speaks in volumes about the professional competence of PW-18 in conducting investigation in such a heinous crime. PW-18 was rightly suggested by the learned defence counsel that the CDR of mobile phone Ex.P-1 was deliberately withheld which otherwise would have revealed the user of the Sessions Case No. 57505/16 Page 42/55 said mobile phone to be some other person than the deceased and which would have exposed the falsity of the prosecution case.
54. In the above-discussed circumstances, the recovery of mobile phone make Nokia Ex.P-1 from the possession of accused Hira Lal has become doubtful. There is no evidence available on record to establish that the mobile phone Nokia Ex.P-1 belonged to the deceased or was ever used by him. There is no evidence about the ownership of mobile phone Nokia Ex.P-1 and, therefore, this circumstance i.e. the mobile phone Ex.P-1 belonged to the deceased and was recovered from the possession of accused Hira Lal , could not be established by the prosecution beyond reasonable doubt.
(iv). Recovery of weapon of offence i.e. stone at the instance of accused Nitin :
55. As far as the recovery of weapon of offence i.e. one stone Ex.PW-8/P5 is concerned, there are material contradictions in the testimonies of prosecution witnesses in this regard. As per the testimony of Ct. Chand Sessions Case No. 57505/16 Page 43/55 Prakash (PW-12) both the accused persons got recovered one stone made of concrete and tarcoal weighing about 7-8 kg from the bushes near the scene of crime whereas in cross- examination PW-12 stated that the said stone was recovered at the instance of accused Nitin. SI Sandeep Dabas (PW-13) deposed about the accused Nitin leading the police party to the place of occurrence to get the stone Ex.PW- 8/P5 recovered from bushes which was seized vide memo Ex.PW-13/J. In cross-examination, PW-13 also stated that both the accused persons led the police party to the place of occurrence and got the stone recovered. Inspector Maninder (PW-18) also stated that both the accused persons led the police team to the place of occurrence where the stone Ex.PW-8/P5 was got recovered at the instance of accused Nitin. In cross-examination, PW-18 asserted that he had seized only one stone Ex.PW-8/P5.
56. At this juncture, the testimony of ASI Raj Kumar (PW-8) who had firstly reached at the place of occurrence is relevant to take note of. PW-8 deposed about one big concrete stone and Sessions Case No. 57505/16 Page 44/55 another small concrete stone present near the dead body which were smeared with blood. PW-8 identified those stone in four pieces Ex.PW-8/P3 and one stone Ex.PW-8/P5. The seizure memo Ex.PW-8/A prepared by SI Sanwar Mal (PW-17) and witnessed by PW-8 also speaks about two blood stained stones seized from the spot in the present case. Further, SI Gyan Singh (PW-6), incharge of mobile crime team who proved his scene of crime report (Ex.PW-6/A) deposed about one black colour stone having blood stains which was found lying near the dead body whereas the scene of crime report (Ex.PW-6/A) mentions about four stone pieces of road. Blood with earth control and earth control was mentioned separately therein. In this regard, SI Sanwar Mal (PW-17) deposed about four stone pieces Ex.PW-8/P3 which he had taken from the spot and another stone piece made of tarcoal and concrete Ex.PW-8/P5 which he had lifted from the spot.
57. Ct. Madan Lal (PW-9) who had reached at the spot alongwith SI Sanwar Mal (PW-17) Sessions Case No. 57505/16 Page 45/55 deposed about one stone (Ex.PW-8/P5) which was lying near the big stone i.e. Ex.PW-8/P3 which were seized by the IO. PW-9 was cross- examined by the learned prosecutor wherein he stated that the stone Ex.PW-8/P5 was not recovered in his presence. On cross- examination by the learned defence counsel, PW-9 admitted that he had seen the spot but he failed to depose where the stone Ex.PW-8/P5 was lying at the spot. It is also noteworthy here that the seizure memo Ex.PW-8/A, which mentions about seizure of two stones from the spot itself, was only witnessed by PW-9.
58. In view of above-discussed facts and circumstances, it is evident that the prosecution witnesses deposed in contradictory terms about the existence of purported weapon of offence i.e. stone (Ex.PW-8/P5). There is no mention about the use of the stone (in four pieces) Ex.PW-8/P3. The testimony of ASI Raj Kumar (PW-8) contradicts the testimony of PW-12, PW-13 and PW-18 who deposed about the recovery of stone (Ex.PW-8/P5) at the instance of accused Nitin. The seizure memo Ex.PW-8/A Sessions Case No. 57505/16 Page 46/55 which was prepared by SI Sanwar Mal (PW-17) clearly mentions about the seizure of two blood stained stones from the spot itself. SI Sanwar Mal (PW-17) also deposed in categorical terms about the stone (Ex.PW-8/P5) as well as stone (in four pieces) (Ex.PW-8/P3) which he had lifted from the spot. Therefore, in the entire facts and circumstances, the recovery of weapon of offence i.e. stone (Ex.PW-8/P5) purportedly at the instance of accused Nitin is completely shrouded in doubts which is compounded by the contradictory deposition of PW-12, PW-13 and PW-18. It is, therefore, evident that the prosecution failed to prove this circumstance beyond reasonable doubts.
(v) Recovery of clothes:
59. As far as the recovery of clothes worn by the accused persons at the time of commission of offence is concerned, the same is also not free from doubts. For instance, as per the testimony of Ct. Chand Prakash (PW-12), accused Nitin got recovered his blood stained T- shirt and pajama and accused Hira Lal got Sessions Case No. 57505/16 Page 47/55 recovered his shirt. SI Sandeep (PW-13) on the other hand, deposed that both the accused persons got recovered their blood stained clothes from their respective jhuggies. Inspector Maninder (PW-18) also deposed about blood stained T-shirt belonging to accused Hira Lal which was got recovered by the accused Hira Lal and T-shirt and pajama which was got recovered by accused Nittin.
60. As per FSL result Ex.PW-18/G, blood was detected on one shirt of accused (Ex.10) and one T-shirt (Ex.11a) but no blood could be detected on one lower (Ex.11b). In serological analysis, blood of 'A' group was found on T- shirt (Ex.11a).
61. In view of the above-mentioned testimonies of prosecution witnesses, it is not clear if a shirt or a T-shirt was recovered at the instance of accused Hira Lal or if the same was stained with blood or not. Similarly, it is also not clear if the T-shirt recovered at the instance of accused Nitin was having blood stains or not. Moreover, no blood stains could be found on pajama (lower) though it is most likely if a Sessions Case No. 57505/16 Page 48/55 stone is hit on the head of a person lying on the ground, blood stains, if any would firstly be there on the lower garment worn by the assailant. Accordingly, the recovery of the blood stained wearing clothes at the instance of the accused persons is also not free from doubts. Resultantly, the prosecution also failed to prove the said circumstance against the accused persons beyond reasonable doubts.
(vi) Motive:
62. Though the prosecution sought to establish that the deceased, being a bad character of the locality, used to bully and beat the accused persons which prompted the accused persons to seek revenge, the fact remains that except the disclouser statement of the accused persons, there is no evidence available on record to indicate in this direction. Needless to say, the disclouser statement (Ex.PW-13/F and Ex.Pw-13/G) are not admissible in evidence. Not a single person from the locality, could be examined by the IO who could have deposed in this regard. It is, Sessions Case No. 57505/16 Page 49/55 therefore, clear that the prosecution miserably failed to prove the motive on the part of the accused persons to commit the murder of the deceased.
Testimonies of prosecution witnesses qua investigation:
63. As far as the testimonies of rest of the prosecution witnesses are concerned the same do not incriminate the accused persons on their own. For instance, HC Shanti Swaroop (PW-1) deposed about recording of information about the dead body lying near drain of Mahatma Gandhi Camp vide DD no. 11A (Ex.PW-1/A), Ct. Madan Lal (PW-9) deposed about taking the rukka to the police station for registration of FIR, taking the dead body to the hospital and proceeding to the hospital for conduct of postmortem examination etc. Sub-Inspector Prisilla (PW-16) deposed about registration of FIR Ex.PW-16/B and her endorsement on rukka Ex.PW-16/A. Ct. Goverdhan (PW-7) deposed about delivery of copies of FIR to the learned Area Metropolitan Magistrate and the Sessions Case No. 57505/16 Page 50/55 senior police officers. SI Mahesh Kumar (PW-
3) had prepared the scaled site plan Ex.PW-3/A. HC Devender Kumar (PW-10) deposed about the photographs taken by him. Inspector Virender Dalal (PW-14) had prepared the rough site plan Ex.PW-14/A. HC Narender Kumar (PW-2) , MHC(M) of PS Punjabi Bagh deposed about the deposition of case property in the malkhana and SI Kamal Singh (PW-11) deposed about taking sealed parcels from MHC(M) for depositing at FSL Rohini.
Conclusion:
64. As per the settled propositions of the law, it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. In Sharad Birdhichand Sarda v. State of Maharashta (1984) 4 SCC 116, which is considered a locus classicus on circumstantial evidence, it was laid down that the facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other Sessions Case No. 57505/16 Page 51/55 hypothesis except that the accused is guilty. Further, the circumstances should be of a conclusive nature and tendency and 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.
65. In Sujit Biswas V. State of Assam - (2013) 12 SCC 406, in the contextual facts constituting circumstantial evidence, it was also ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstance established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused.
66. Further, in Dhan Raj @ Dhand V. State of Haryana - (2014) 6 SCC 745, while dwelling on the imperatives of circumstantial evidence, it was ruled that the same had to be of highest order to satisfy the test of proof in a criminal Sessions Case No. 57505/16 Page 52/55 prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only an inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjectures.
67. In the present case, prosecution failed to prove each circumstance beyond reasonable doubt as discussed-above. The chain of circumstances sought to be proved by the prosecution is not complete. Prosecution failed to establish that the accused persons had any proximity with the deceased or had any motive to commit his murder. As discussed above, the prosecution could not establish if the mobile phone Ex.P-1 belonged to the deceased or was recovered from the possession of accused Hira Lal. Similarly, the recovery of weapon of offence i.e. stone Ex.PW-8/P5 allegedly at the instance of accused Nitin remained entirely Sessions Case No. 57505/16 Page 53/55 doubtful. A serious doubt has arisen in the entire prosecution story. From the entire evidence available on record, inference of guilt of the accused persons cannot be drawn so as to exclude all possible hypothesis of their false implication and innocence. All the circumstances as discussed above do not lead to the irresistible conclusion that the accused persons and only the accused persons are the perpetrator of the offence in the present case.
68. Therefore, in the given facts and circumstances as discussed above, I extend the benefit of doubt to the accused persons and acquit them. Accused persons namely, Hira Lal S/o Manmod and Nittin @ Nanhe S/o Hari Shanker are hereby acquitted of the charge for commission of offence punishable under section 302/34 IPC.
69. Point for Determination no. (d) is decided accordingly.
70. Bail Bond under Section 437-A Cr.P.C were furnished by both the accused persons with photograph and residential proof of the sureties.
Sessions Case No. 57505/16 Page 54/5571. In view of Section 365 Cr.P.C, a copy of the judgment be sent to District Magistrate concerned for his information.
72. The Legal heirs of Pankaj (deceased) are referred to District Legal Services Authority, (West) for award of suitable compensation.
73. File be consigned to Record Room after due compliance. Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2018.03.17 13:07:31 +0530 (Pronounced in the open (Kuldeep Narayan) Court on 17-03-2018) Additional Sessions Judge (Pilot Court) West :Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 57505/16 Page 55/55