Delhi District Court
State Of U.P. vs . Satish, Air 2005 Supreme Court 1000. ... on 13 August, 2010
1
IN THE COURT OF SH. GURDEEP SINGH
ADDL. SESSION JUDGE04, NORTHEAST DISTRICT
KARKARDOOMA COURTS, DELHI.
FIR No. : 529/2004
PS : Gokalpuri
U/s : 302/201/34 IPC
Unique Case ID : 02402R0 0093122005
In the matter of
The State
Versus
Giripal @ Ginni S/o Sh. Jagram
R/o 295, Gali No. 1+5, Roshan Vihar
Sadatpur, Delhi.
....ACCUSED
Session Case No. : 21/08
Date of Institution : 22.02.2005
Date of reserving order/judgment : 13.08.2010
Date of pronouncement or order/judgment : 13.08.2010
J U D G E M E N T
1. The accused Giripal @ Ginni and the accused Rajat Panchal @ Monu (juvenile) were sent up for trial by police of police station Gokalpuri for offence punishable U/s 302/201/34 IPC on the allegation that on 26.11.2004 on the receipt of PCR call vide DD No. 2 A regarding recovery of male dead body, ASI Gajender alongwith Ct. Tej Pal Singh reached as Transformer Wali Gali, FIR No. : 529/2005, PS: Gokalpuri Page 1 of 43 2 Sadatpur Delhi, where a dead body was found facing the sky and sharp edged weapons wounds were seen over deceased neck and abdomen. The pant of deceased was having open Zip and underwear was visible. ASI Gajender made appeal to the crowd for identification of the deceased and on his appeal one lady named Roshni wife of the deceased came forward and identified the deceased as that of her husband Sujan Singh and made her statement to ASI Gajender Singh. District Crime Team and photographer was called on the spot and SHO Gokalpuri Inspector Satyapal Singh was informed. Smt. Roshni stated in her statement that her husband Sujan Singh used to work as Tent Tailor, sometimes at home and sometimes at the vendors home. He was stitching tent at home for last 15 days. Yesterday i.e. 25.11.2004 about 7:00 on one tent vendor from Libaspur namely Virender, whose tent was stitched by her husband, came to her house and gave Rs.2400/ and took away his tent. At about 8:00 pm, her husband returned back at home and she told him about Virender and Rs. 2400/. On this her husband told her that work was worth of Rs.3500/ and Virender gave less money and he is going to Virender's relative Prahlad at Chand Bagh for remaining money. At about 8:30 pm her husband took dinner and went on his cycle. At that time, he wore blue colour shirt and black full sleeves banian FIR No. : 529/2005, PS: Gokalpuri Page 2 of 43 3 (vest), and black leather chappals. Her husband did not return in night and now one Vishnu, known to her, came to her house at about 8:00 am and told that dead body of her husband was lying at Gali Transformerwali Gali. On this information, she alongwith her elder son Sikander reached at the spot where police met her. Somebody killed her husband. On her statement FIR was registered. Inspector Satyapal Singh, the then SHO PS Gokalpuri took up the further investigation. The postmortem on the dead body was got conducted. Blood on gauze from earth, blood stained earth and earth control were taken from the spot. Statement of one Yasin was recorded. IO collected the telephone number of Virender Singh and contacted him, and interrogated Vishnu and recorded his statement and also recorded statement of Virender Singh. IO also recorded the statement of Rakesh Kumar from whose STD deceased Sujan Singh made telephone call to Virender Siingh. IO also interrogated one Gopal Singh who disclosed that the cycle of the deceased was lying in his shop and on whose instance one cycle was taken into possession. IO also recorded statement of Dinesh, who informed the police about lying of dead body. IO interrogated Ginni Panchal, Rajat Panchal and his sister Usha but all of them narrated different stories. On 27.11.2004 postmortem on the dead body was conducted at Mortuary, GTB Hospital by Dr. Arvind FIR No. : 529/2005, PS: Gokalpuri Page 3 of 43 4 Kumar, who gave cause of death as haemorrhagic shock as a result of antemortem injury to neck and abdominal vessels produced by pointed blunt weapon and found 24 injuries on the body of deceased Sujan Singh. Thereafter IO alongwith Raju Togadiya, son of deceased reached at the house of accused Ginni Panchal and IO interrogated accused Ginni Panchal and Rajat Panchal and on thorough interrogation both confessed their crime and gave disclosure statement. They were arrested and in pursuance to their disclosure statement they produced one blue shirt of deceased Sujan Singh. IO took shirt of accused Ginni Panchal and Rajat Panchal into his possession and two blood stained dusters were also recovered at their instance. Accused Ginni Panchal also got recovered blood stained knife. They pointed out the place ie Gali Transformerwali, Sadatpur where they dropped the dead body and also pointed out the place ie Shiv tent House, Gali No.8, Prem Nagar, from where they had taken the wooden rickshaw rehri whose floor was blood stained. On 29.11.2004, Sh. Naresh Kumar, Expert Biology Division, FSL Rohini came to scene of crime and inspected the room and lifted one sample from wall, which was seized by Inspector Satyapal Singh. Subsequent Opinion regarding weapon of offence was taken. Dr. Arvind, who conducted the postmortem on the dead body, gave the subsequent opinion that FIR No. : 529/2005, PS: Gokalpuri Page 4 of 43 5 injury no, 2,3 and 6 can be caused by weapon. After completion of the investigation, the chargesheet was filed in the court.
2. The accused Rajat Panchal was found to be juvenile and therefore he is being tried by Juvenile Justice Board (JJB).
3. After supplying the necessary copies, the case was committed to court of session by Ld. MM vide order dated 29.03.2005.
4. My Ld. Predecessor, after finding primafacie offence punishable u/s 302 IPC and u/s 201 read with section 34 IPC charged the accused Giripal @ Ginni vide order dated 3.5.2005, to which he pleaded not guilty and claimed trial. The charge was amended vide order dated 1.5.2010 regarding the place of occurrence and regarding throwing of dead body to screen themselves and accused was charged for offence punishable u/s 302/34 IPC and 201/34 IPC, to which the accused also pleaded not guilty and claimed trial.
5. Prosecution in support of their case examined as many as 26 witnesses.
6. The prosecution examined the following material witnesses :
PW1 Smt. Roshini Devi who proved her complaint made to the police as Ex.PW1/A, seizure of blood, earth control from spot vide FIR No. : 529/2005, PS: Gokalpuri Page 5 of 43 6 memo Ex.PW1/B, seizure of bicycle vide memo Ex.PW1/C and she identified the cycle as Ex.PW1/1. PW2 Gopal Singh is the witness of last seen. PW3 Dinesh is the witness who informed the police regarding lying of dead body. PW4 Vishnu informed the wife of deceased regarding lying of dead body of Sujan Singh. PW 5 Sh. Sikandar son of deceased Sujan Singh proved the statement regarding identification of dead body of his father as Ex.PW5/A and received the dead body vide receipt Ex.PW5/B. PW6 Raju Tobaria another son of the deceased Sujan Singh, proved the statement regarding identification of dead body of his father as Ex.PW6/A, seizure of knife as Ex.PW6/B, seizure of shirt of deceased as Ex.PW6/C, seizure of blood stained shirt of accused Ginni as Ex.PW6/D, seizure of pochhas (clothes) as Ex.PW6/E, seizure of rickshaw rehri vide memo Ex.PW6/F, pointing out memo of the place of incident as Ex.PW6/G, sketch of chura as Ex.PW6/H. He identified the chura as Ex.P1, pochhas as Ex.P2 collectively, blood stained shirt of accused as P3, blood stained half pant and full pant of his father as Ex.P4 and P5 respectively, blue colour shirt as Ex.P6 and rickshaw rehri as Ex.P7. PW7 Virender, whose tents were stitched by deceased Sujan Singh. PW8 Rakesh is the witness from whose STD Shashi Telecom, the deceased has made telephone call. PW9 Sh. Aman Singh is the witness whose FIR No. : 529/2005, PS: Gokalpuri Page 6 of 43 7 rehri was taken by nephew of Ginni on 26.11.2004.
7. The prosecution also examined the following formal witnesses :
PW10 Sh. Naresh Kumar, Sr. Scientific Assistant Biology FSL Rohini who deposed regarding lifting of blood from the wall of room. PW11 Dr. Arvind Kumar conducted the postmortem on the dead body of deceased Sujan Singh and found as many as 24 injures and opined that injury no. 1, 2, 3, 6, 7, 8 and 15 were caused by pointed blunt weapon and injury no. 4, 5, 9, 10, 11, 12, 13 and 14 were caused by sharped edged weapon and injury no. 16 to 24 were produced by blunt force impact and injury no. 4, 5, 6, 7 and 15 were sufficient to cause death in ordinary course of nature. He proved the MLC as Ex.PW11/A. He also gave subsequent opinion regarding weapon and opined that injury no. 2, 3 and 6 can be caused by the weapon and proved the description of weapon in subsequent opinion as Ex.PW11/B. PW12 SI Rakesh Kumar, Incharge crime team, got the place photographed and tried to lift the fingerprint and prepared the report Ex.PW12/A. PW13 ASI Kusum Latta, is duty officer, who registered the FIR on the basis of tehrir brought by Ct. Tejpal and sent by ASI Gajender and proved the carbon copy of the FIR as Ex.PW13/A and her endorsement on rukka as Ex.PW13/B. PW14 HC Vinod Singh is the MHC(M) FIR No. : 529/2005, PS: Gokalpuri Page 7 of 43 8 with whom the case properties were deposited, he sent the knife to doctor for opinion, received it and also sent exhibits to FSL for examination and received them with result. He proved the relevant entries to that effect as Ex.PW14/A, PW14/B, PW14/C, PW 14/D, PW14/E, PW14/F, PW14/G and PW14/H. PW15 ASI Rajmal Singh was the duty officer who recorded DD No. 2 A i.e. information regarding lying of dead body at Karawal Nagar Main Road, Transformer Wali Gali No.1 and proved the same as Ex.PW 15/A and also proved departure entry of IO as Ex.PW15/B. PW 16 Ct. Shamsher Singh had delivered the special report to the area magistrate and joint CP. PW17 HC Raj Kumar received 13 sealed parcels from MHC(M), deposited the same at FSL, Rohini vide RC No. 145/21 and handed over the receipt of the same to MHC(M).
PW18 HC Prahlad Singh is the witness who went to FSL to call the expert, Sh. Naresh Kumar, Expert from the spot lifted blood from the wall with the help of guaze, kept in envelop and handed over to him, who handed over the same to IO, who seized the same vide seizure memo Ex.PW18/A. PW22 HC Sushil Kumar, was the photographer at Crime Team, who took seven photographs of the dead body and the spot from different angles and proved the photos as Ex.PW22/A1 to PW22/A7 and its negatives as Ex.PW22/17. PW24 Inspector Gurmit Singh, is the SHO PS FIR No. : 529/2005, PS: Gokalpuri Page 8 of 43 9 Gokalpuri who sent a sealed pullanda containing weapon of offence alongwith an application regarding subsequent opinion to GTB Hospital on 8.1.2005 and proved the copy of application Mark PW 24/A and receiving the opinion filed it on record and deposited the exhibits with mallkhana. He also proved the FSL Result as Ex.PW 24/A and application regarding filing the same on record as Ex.PW24/B. PW25 SI Sanjeev Kumar had taken the parcel alongwith application for subsequent opinion and handed over the sample to the Dr. Arvind Kumar, who had handed over the subsequent opinion and a parcel duly sealed to him and thereafter he deposited the parcel with MHC(M) and handed over the opinion to IO. PW26 Sh. V. Shankarnarayan, Sr. Scientific Assistant (Biology), FSL Rohini had examined the exhibits biologically and serologically and proved the detailed reports as Ex.PW24/A and PW26/A respectively.
8. The prosecution also examined the following witnesses of investigation :
PW19 ASI Gajender Singh firstly reached at the spot alongwith PW20 Ct. Tejpal, as he the then was, recorded the statement of Smt. Roshini and prepared rukka upon her statement and proved the rukka as Ex.PW19/A in addition to other documents. PW20 HC Tejpal Singh received blood gauge, sample seal of AK and FIR No. : 529/2005, PS: Gokalpuri Page 9 of 43 10 pullanda of cloth of deceased duly sealed from doctor and handed over the same to IO, who seized the same vide seizure memo Ex.PW20/A. PW21 HC Raj Kumar proved the arrest memos of accused Giripal @ Ginni and Rajat Panchal (Juvenile) as Ex. PW 21/A and Ex. PW21/B and their personal search vide memos Ex. PW21/C and Ex. PW21/D, their disclosure statement Ex. PW 21/E and Ex. PW21/F. He is also witness of recoveries at the instance of accused Ginni Panchal. PW23 Inspector Satpal Singh is the investigating officer (IO). He in addition to other memos proved site plan of the place of occurrence Ex.PW23/A and site plan of the place of recoveries at the instance of accused as PW 23/B.
9. Statement of accused persons were recorded U/s 313 Cr.PC. He denied the prosecution evidence and claimed innocence.
10. Accused stated in his statement u/s 313 Cr.PC that all witnesses are interested and false witnesses and this is a false case. He further sated that he is innocent and had business rivalry with Virender, Yasin and Prahlad. He was called at the police station where Virender, Prahlad and Yasin were already sitting and police officials released them and falsely implicated his in this case. He further stated that her sister had no relation with the deceased. She was married and living with her husband at village Subanpur, Dist. FIR No. : 529/2005, PS: Gokalpuri Page 10 of 43
11 Bagpat, UP. He stated that he want to lead evidence, however, later on chose not to lead evidence in his defence.
11. I have heard Sh. Virender Singh, Ld. Addl. PP for the state and Sh.
Y. P. Singh, Advocate for accused persons. I have also gone through the record.
12. The case of the prosecution is based on circumstantial evidence consisting of last seen evidence, recoveries, at the instance of accused, of blood stained clothes of the deceased, blood stained clothes of the accused, weapon of offence (knife), two dusters allegedly used for sweeping the blood stains from the floor and one cycle rickshaw rehri used for transportation of the dead body to the place from where it was found.
13. The law on the subject is well settled by Hon'ble Supreme Court in State of U.P. Vs. Satish, AIR 2005 Supreme Court 1000. Observed with approval the law laid down in Padala Veera Reddy Vs. State of A. P. (AIR 1990 SC 79) it was held by Hon'ble Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;
ii) those circumstances should be of a definite tendency FIR No. : 529/2005, PS: Gokalpuri Page 11 of 43 12 unerringly pointing towards guilt of the accused;
iii) the circumstance, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
The accused can be convicted on the basis of circumstantial evidence, if the chain of circumstance is complete.
14. PW3 Dinesh testified that he is residing at Gali No. 1, Village Sadatpur, Karawal Nagar, Delhi. On 26.11.2004, he was coming back to his house while driving his TSR and at about 6:00 am, when he reached near the corner of Gali at a distance of 50 meters of his house, he saw some public persons gathered there and one dead body of a male person was lying there. Dead body was wearing pant but the upper part of the dead body was nude and there were several wound injuries on the abdomen and neck of the dead body. He telephoned at no. 100. He did not know the name of the deceased. Police reached at the spot. In his crossexamination he was confronted with the statement, he came at the spot at about FIR No. : 529/2005, PS: Gokalpuri Page 12 of 43 13 6:00 am, where time is not mentioned and only word 'morning' is mentioned.
15. PW4 Vishnu testified that on 26.11.2004 at about 7:00 am, he had gone to Moonga Nagar, Delhi by cycle and at about 7:30 am, when he was coming back to his house via Karawal Nagar Road and reached at Gali No.1 Transformer Wali Gali, Sadatpur, he saw that public persons were gathered there and dead body of a male person was lying there. Police officials were also present there. He identified the dead body as that of one Sujan Singh, his neighbourer. Thereafter, he went to the house of Sujan Singh and told her wife about dead body of Sujan Singh lying in the Transformer Wali Gali. He denied the suggestion in his cross examination that he did not inform Roshini.
16. PW19 ASI Gajender Singh testified that on intervening night of 25/26.11.2004, he was on emergency duty and on receiving DD No. 2A, he alongwith Ct. Tejpal (PW20) reached at the spot at Sahadatpur Transformer Wali Gali, where he found one dead body was lying on the road and same was in the blood of pool. He found that there was sharp edge injuries at the stomach and near the neck. He started inquiries from the persons gathered there and in the meantime one lady came to him whose name known as Roshini, who had identified the dead body as her husband. He recorded FIR No. : 529/2005, PS: Gokalpuri Page 13 of 43 14 statement of Roshini. In his crossexamination he stated that DD was received at 7:15 am. He reached at the spot at about 7:35/7:40 am. PW20 HC Tejpal Singh similarly corroborated him. In his crossexamination he stated that DD entry was lodged at 7:12 am and they reached at the spot after about 20 minutes approx. Therefore the spot where the dead body was found is given by all the witnesses as Gali No.1 Sahadatpur Transformer Wali Gali at the southwest corner of the gali and dead body was seen in the morning between 6:00 am to 7:30 am.
17. As regards the witness of link evidence, the prosecution examined PW9 Sh. Aman Singh. He testified that he is running the tent house in the name of Shiv Tent House in the gali No.8 at Prem Nagar, Karawal Nagar, near Gola Factory. He knows Ginni Panchal and his nephew, whose (sic) name he does not know. He (accused Ginni Panchal) is running tent house in the name and style of Vishwkarma Tent House in Roshan Vihar. On 25/11/04 nephew of Ginni i.e. Rajat Panchal (juvenile) asked for Rikshaw reddy (rehri) from his wife Sunita saying that the wheel of their rickshaw has been broken and took the same on 26.11.2004 in the morning he returned the rickshaw and parked at near his shop and told his wife hat he has returned the rickshaw. On 27.11.2004 police had made inquiry from him. In his crossexamination he has stated that he did FIR No. : 529/2005, PS: Gokalpuri Page 14 of 43 15 not tell the name of the nephew of the Ginni. He was confronted with the statement where the name of nephew has been recorded. Police never met with his wife. His wife told him regarding the taking of the rickshaw on the same evening to him. She had told him after threefour hours. He was present at that time on a site at Ganga Vihar and he remained busy throughout the night and they kept on transferring the tent from marriage to the second booking till 8:00 am in the next morning and his wife had also told him about the leaving of the rickshaw on the next morning. He admitted that he did not see the taking away the rickshaw and leaving the same. Therefore, this witness is neither the witness of taking of the rickshaw nor returning of the rickshaw. He is hearsay witness, therefore, his evidence cannot be read against the accused. Even otherwise as per his statement on 25/11/04 the rickshaw was asked for and on 26/11/04 in the morning the rickshaw was taken. Therefore, had there been planning of transporting the dead body, he would not have asked for rickshaw one day prior and taken the same after committing murder. It is nowhere stated as to what time he had taken the rickshaw in the morning. Further, as per the prosecution case the alleged murder was committed when the accused saw the deceased Sujan Singh in compromising position with his sister and therefore, he could not have planned the same FIR No. : 529/2005, PS: Gokalpuri Page 15 of 43 16 one day in advance and therefore, it could not be proved that nephew of the accused had taken the rickshaw (rehri) on 25.11.2004 and left in the morning on 26.11.04.
18. PW2 Gopal stated that the deceased has come to his shop on 24.11.2004 whereas as per the prosecution case he had come to his shop on 25.11.2004 and he (witness) had gone with him to the house of accused Ginni Panchal. Similarly, he stated that his statement was recorded on 26.11.2004 at about 9:30 am at his shop. He reiterated that wife of deceased had also come at around 10/10:15 pm on 24.11.2004 to his shop. Therefore the prosecution could not prove that on the night of 25.11.2004 the deceased Sujan Singh had gone to the house of accused Ginni Panchal alongwith PW2 Gopal and left him in the company of accused, his nephew Rajat Panchal (Juvenile) and his sister.
19. The photographs of the dead body were taken. From the photographs, it is not visible that the zip of pant of deceased was open and the red colour underwear was visible. It appears that the dead body was shifted because as per the description given the witnesses the dead body was facing sky. Photographs EX.PW 22/A7, PW22/A1 and PW22/A2 show that the dead body facing ground, Ex.PW22/A3 depict dead body facing one side Ex.PW 22/A4 show the dead body facing sky. Therefore it is not very sure FIR No. : 529/2005, PS: Gokalpuri Page 16 of 43 17 that the dead body was lying facing sky although there is no cross examination on this aspect.
20. Now coming to the scientific evidence. As per the FSL result, the blood was detected on the full pant and half pant of the deceased, blood sample of the deceased and blood on gauge of the deceased, earth, weapon of offence and on one shirt, dirty towel clothe (pocha), gauge piece having brown stains, wooden piece, and guage cloth piece having brown stains. Blood group on Pant, half pant and blood stained gauge cloth having human blood of group 'B', shirts, towel and piece of cloth was also having blood of 'B' group. Others' group could not be found.
21. To prove the last seen evidence, the prosecution examined PW1 Smt. Roshni Devi, wife of deceased Sujan Singh, PW2 Gopal Singh, PW6 Raju Togadiya, son of deceased Sujan Singh, PW8 Rakesh from whose STD shop the telephone call was made.
22. PW1 Smt. Roshni Devi, wife of deceased Sujan Singh testified that on 25.11.2004 at about 7:00 pm, Virender Tent Wala of Libaspur came to her house. At that time, her late husband Sujan Singh was not present at residence. He (Virender) came to our house as her late husband stitches his tents and he came to collect his finished/stitched goods. Virender had given to her Rs.2400/ and he FIR No. : 529/2005, PS: Gokalpuri Page 17 of 43 18 took away his stitched tents. Thereafter at around 8:00 pm her late husband Sujan Singh reached home. She handed over him the above mentioned sum of Rs.2400/ and she told him that the said amount was given to her by Virender and she also told her husband that she delivered the stitched tents to Virender. Her husband told her that a sum of Rs.3500/ was due against Virender and as to why she has received Rs.2400/ from him. Her husband asked her for dinner and after having dinner, he went to Prahlad, relative of Virender to ask about the remaining money due against Virender. Her son was also present at that time and her husband had dinner and her son Raju went outside to play and her husband late Sujan Singh also went on his bicycle to see Prahlad. He also told her that he will be returning within 30 minutes. She waited for her husband till 10:00 pm but he did not return. Thereafter she asked her children Raju and Sikander about her husband. Then her son Raju informed her that he had seen her late husband Sujan Singh going on scooter with Gopal. She alongwith both sons reached at the of Gopal and she asked Gopal that her husband had gone with him and as to where Gopal left her husband. He told her that he had left her husband Sujan Singh at the house of accused Ginni in Roshan Vihar. Thereafter she returned back to her residence. She waited for her late husband Sujan Singh for the whole night but he did not return. FIR No. : 529/2005, PS: Gokalpuri Page 18 of 43
19
23. In her crossexamination she stated that she is illiterate and she had not stated to the police that her son was present at her house at the time when her husband went to the house of Prahlad. She stated that her son Raju was not at home when her husband went to the house of Prahlad, however, her son Sikander was at home at that time. She was confronted with her statement made to the police to this effect. Her husband left at about 8:00/8:30 pm. She does not remember whether she had stated to the police that her husband told her that he will be returning within 30 minutes. She had not informed the police that her husband will be returning at 10:00 pm. She had not informed the police officials, who had recorded her statement Ex.PW1/A that she had asked her children Raju and Sikandar to go and inquire about her husband and voluntarily stated that she had told this fact to the higher police officials but is not in her knowledge whether it was reduced into writing or not. She had also not told the police at the time of recording of her first statement that her husband had left with Gopal on his scooter and again voluntarily stated that she had told this fact to the higher police officials but it is not in her knowledge whether it was reduced into writing or not. The higher police officials had arrived at the scene after half an hour from the time when initial statement was recorded. She was also confronted with her examinationin FIR No. : 529/2005, PS: Gokalpuri Page 19 of 43 20 chief from point X to X, wherein she had stated that she alongwith her both son had gone to the house of Gopal to inquire about the fact as to where her husband has gone till she waited whole night for her husband, which was not recorded in statement Ex.PW1/A. She again stated that she had told this fact to the higher police officials but it is not in her knowledge whether it was reduced into writing or not. Therefore, as per the evidence of PW1 Smt. Roshini her husband left the house to go to Prahlad, the relative of Virender, her son Raju was not at home but Sikandar was at home. PW5 Sikandar, son of deceased Sujan Singh does not say in his examinationinchief anything regarding his father leaving for going to Prahlad.
24. PW6 Sh. Raju Togadiya, son of the deceased Sujan Singh testified that his father used to work of stitching tents. On 25.11.2004 at about 7:00 pm, his father Sujan Singh had gone to Libaspur Tent Wala to take money for his stitching work but his father, thereafter, did not come back. In his crossexamination he stated that his father had come to house at about 8:00 pm on the date of occurrence i.e. 25.11.2004. Virender tent wala came to his house at about 7:00 pm. He and his mother, brother and sister were present at the home when Virender had come to their house. His father left the home after his leaving for play at the drain. His father had told to his FIR No. : 529/2005, PS: Gokalpuri Page 20 of 43 21 mother in his presence that he would go to Prahlad who is relative of the Virender to inquire about the payment. He reached at about 9:30 pm after playing at home. When he reached his father was not at home. He does not say that he had seen his father going alongwith Gopal on his scooter. Therefore statement of PW1 Smt. Roshni does not find corroboration to this effect and therefore evidence of these witnesses to the extent that Sujan Singh deceased had left his house to Prahlad to talk about money received from Virender, they had seen Sujan Singh alive at 8:00 pm night on 25.11.2004 is only reliable and other part is improvement and liable to be rejected.
25. PW8 Sh. Rakesh testified that in the year 2004, he was running STD shop in the name and style Shashi Telicom at his residence. On 25.11.2004 at about afternoon time one person came at his shop for making telephone call. He was crossexamined by the prosecutor. He admitted that on verification by the police, he told (sic) the police that on 25.11.2004 at about 12:30 pm one person Sujan Singh S/o Sh. Prabhati Lal came at his shop and he made telephone call to the mobile number. He also admitted that person was saying on telephone "tu gharwali ko kam paise dekar aaya hai, tatha maal ke hishab se kam paise dekar gaya". He further admitted that the persons was talking on the telephone in angry FIR No. : 529/2005, PS: Gokalpuri Page 21 of 43 22 mood. In his crossexamination he stated that police met him on 26.11.2004. Police did not come to his shop on 25.11.2004. Police told me the name of Sujan Singh on verification from him. Therefore according to this witness Sujan Singh had come on 25.11.2004 in the after noon for making telephone call from his STD booth and saying regarding taking of less money whereas the wife of the deceased PW1 Smt. Roshini Devi claims that the Virender had come to their house at about 7:00 am and had given the less amount. Therefore according to her in the afternoon it was not known to her husband that he had given less money to her. Therefore this witness falsifies prosecution version that Sujan Singh had gone in night after taking dinner from his house to Prahlad.
26. PW7 Virender is the another witness to whom deceased had allegedly gone for making telephone call. He testified that he have been running a shop of tent in the name and style of V. K. Tent House at Jeevan Park, Libaspur, Delhi since 2002. Prahlad is son of his Tau and he is residing at Khajuri. On 17.11.2004, he had given cloths of 700 mtrs to the deceased Sujan Singh for stitching, who promised to return the same on 25.11.2004. On 25.11.2004 he telephone him to take clothes back from his house as the same had been stitched. In the evening time, he went to the house of deceased Sujan Singh where the wife of Sujan Singh and children met him. FIR No. : 529/2005, PS: Gokalpuri Page 22 of 43
23 After handing over Rs.2400/ , he took back his clothes. Later on Sujan Singh telephoned him for less payment, which he(witness) promised. On 26.11.2004 in day time, he received telephone call from police station Gokalpuri that Sujan Singh was murdered. In his crossexamination he stated that in the night of 25.11.2004 Sujan Singh telephoned him regarding less payment. Therefore, according to PW7 he had received the telephone call from Sujan Singh deceased in the night of 25.11.2004 and thereby claims of PW8 Rakesh that the call was made in the afternoon appears to be false and there are inconsistencies between the two.
27. PW2 Sh. Gopal Singh testified that he is running shop of giving CD on rent (hire). His shop is situated at the Nala in Harijan Basti, Patel Vihar, Karawal Nagar. On 25.11.2004 at about 8:45/9:00 pm deceased Sujan Singh had come to his shop on his cycle. He locked and parked the cycle near his shop. He knew the deceased from earlier as he was his neighbourer (sic). He (Sujan Singh, deceased) requested him to accompany with him to Roshan Vihar as he had some urgent work in Roshan Vihar. He took his two wheeler scooter and went with him in Roshan Vihar. They reached at the house of Ginni Panchal, who used to deal in tent. He had seen a board of Tent House affixed on his house. He and Sujan Singh sat in his house. At that time, there were one woman and two gents present in FIR No. : 529/2005, PS: Gokalpuri Page 23 of 43 24 that house. Ginni was one of those two gents, present there. But at the time when they reached there he did not know the name, which came to his knowledge later on. They had talked with each other for about 2/3 minutes regarding providing tent on the next day morning. He asked Sujan Sinigh that as he was becoming late, so he would like to leave and whether he would like to accompany him or not. On which Sujan Singh asked him that the house was like his own home and he would come later on and he (witness) could leave. On which he came back to his shop on his two wheeler scooter. He waited for about 10/15 minutes for return of Sujan Singh but he had not come. After waiting, he kept his cycle in his shop. He locked his shop and went to his house. Next day, police officials came at his shop and he produced that cycle to the police. Police had taken the cycle. The make of the cycle was Avon of the blue colour. On its chain cover words "SHIV SHAKTI TENT SILAYEE CENTRE" and a telephone number was written. He identified the cycle as Ex.P1. In his crossexamination he stated that he is graduate. He can read and write English and Hindi. He knew deceased Sujan Singh 23 years prior to his death as he was residing in their colony at a distance of about 67 streets. They were on regular visiting terms. He used to run a shop at New Pulia, Patel Vihar. The distance between his shop and house is about 100/125 FIR No. : 529/2005, PS: Gokalpuri Page 24 of 43 25 meters and the distance between his shop and house of deceased Sujan is about 5560 meters. Sujan Singh was wearing blue colour shirt and black colour pant and chappal at the time when he came to his shop on 24.11.2004. His statement was recorded by the police on 26.11.2004 at about 9:30 am at his shop. There were several police officials including SHO and Crime Team but he does not remember who recorded his statement whatever were his responses to the interrogation. All the police officials interrogated him simultaneously. He himself did not state anything to the police and whatever was asked he replied to the same. He stated that he had not stated about seeing a signboard of a Tent House to the police officials because they did not ask about the same. He had informed the police officials that a lady was also present at the house of Ginni Panchal at Roshan Viihar, he was confronted with the portion wherein it is not so recorded. He further stated that there are two rooms in the house of Ginni Panchal. The door of front room is on southern side and of another room is on western side. The main gate is also on the southern side. He does not remember whether there was a gate/door fixed on the main gate or not. The inside rooms have doors. He does not know if there are any tenants in second room but the first room facing south side is in occupation of Ginni Panchal. There are houses on both sides of this house but he FIR No. : 529/2005, PS: Gokalpuri Page 25 of 43 26 does not know who are the occupants of the same. Sujan Singh came to him at about 7:45/9:00 pm. Sujan Singh talked to him at his shop for about 45 minutes. There are no other employee at his shop. He had locked his shop before he left with Sujan Singh. He had not seen the cycle of Sujan Singh before the date of incident. The distance between his shop and the house of accused Ginni Panchal is about 1 ½ to 2 km. They reached at the house of Ginni Panchal at about 9:15 pm. Although he had informed everything to the police officials on 26.11.2004 about this case but the fact that wife of deceased came to his shop at around 10/10:45 pm on 24.11.2004 and had inquired about her husband Sujan Singh and he told her that he had dropped him (deceased) at the house of Ginni Panchal in Roshan Vihar and cycle of Sujan Singh was parked at his shop, was not told by him to the police officials because they did not ask him in this regard. He did not stated so therefore this part is improvement in his crossexamination. He had come to know the name of accused on the next day from police officials on 25.11.2004. He was also confronted with his statement, that when he had dropped Sujan Singh at Roshan Vihar there were two male persons and one female the said house, where it is not so recorded. He was also confronted with the statement that Sujan Singh had talked with those two persons for 2/3 minutes regarding FIR No. : 529/2005, PS: Gokalpuri Page 26 of 43 27 delivery of tents on the next day, wherein it is also not so recorded. He was also confronted with the statement that he requested Sujan Singh to accompany him back to his shop as he was getting late or whether he would like to come with him or not, wherein it is also not so recorded. He left the house of Ginni Panchal after about 5/6 minutes. He came back directly to his shop at about 9:45 pm. Chand Bagh colony is at a distance of about 3.5/4 km from his house. Sujan Singh had not handed over the key of cycle to me. He had not handed over the key of the cycle to the police officials and the cycle was taken by the police officials in a cycle rickshaw to the police station at about 9/9:30 am. He was not called by the police in the police station for enquiry regarding the incident. He had not seen the accused between the period when he had dropped Sujan Singh at his (accused) house and the date when he came to depose in the court. He had not seen Ginni Panchal prior to the date when he had dropped Sujan Singh at the house of Ginni Panchal. The witness had seen accused Ginni only once for short interval and he had identified him in court but there is no TIP of accused regarding his identification that he is the same person with whom he had left deceased. Further this witness claims in his crossexamination that Sujan Singh had gone with him on 24.11.2004, which would show that he is not the witness of last seen as on the night of 25.11.2004 FIR No. : 529/2005, PS: Gokalpuri Page 27 of 43 28 he was at his house. Therefore the testimony of this witness cannot be relied upon for the purpose of last seen. Even if we believe that it was an error on his part in stating date, he cannot be relied upon for lack of TIP.
28. Now coming to the testimony of recovery witnesses. PW1 Smt. Roshini stated that police asked her as to who Gopal is and she informed them that Gopal was running a CD shop in Karawal Nagar near pakka pul. Then police took her to the shop of Gopal alongwith her son Raju. At the shop of Gopal, bicycle of her husband was lying. She identified the bicycle of her husband as belonging to her husband. It was seized by police. She further states that thereafter the police had taken her to the house of accused Ginni Panchal and she identified accused Ginni Panchal and Rajat Panchal (juvenile) who were present there and in his presence, police arrested both of them. Thereafter police brought dog squad and dogs also smelled accused persons to be the culprits. The dogs were taken inside the house of accused persons and they searched two pochas (clothes used for the purpose of cleaning the house). The said pochas were having blood stains and seized by the police. Thereafter both the accused persons led police to the roof of their house and got recovered a chhura which might have been used as a weapon of offence in the commission of murder of his husband. FIR No. : 529/2005, PS: Gokalpuri Page 28 of 43
29 Again stated that the chura was used as weapon of offence in committing murder of her husband. Thereafter both the accused persons led police and her to Prem Nagar where accused persons left the rehri which was used in taking the dead body of her husband. The rehri was of blue colour. The said rehri was having one broken fatta and one burnt fatta. In her presence the police cut portion of one fatta which was burnt and was blood stained and seized it. The dead body of her husband was handed over to him. He took the same to her village where it was cremated by her relatives.
29. PW5 Sh. Sikandar son of deceased Sujan Singh stated that the postmortem on the dead body was conducted on 27.11.2004. He identified the dead body of his father after postmortem and received. In his crossexamination he stated that the statement of his mother was recorded at the spot i.e. on 26.11.2004. He went straight to his house where his sister was alone. His mother and brother came at about 5:00/6:00 pm. His brother Raju did not accompany the dead body to the village. He, his mother and other relatives had gone to the village. They left for village at about 12:00/1:00 noon. They returned to Delhi after four days (Chauhta) of cremation.
30. PW6 Raju Togadiya testified that on 26.11.2004 he came to know FIR No. : 529/2005, PS: Gokalpuri Page 29 of 43 30 that his father was lying dead at Sadatpur, Gali Transformer Wali and dead body of his father was kept in GTB Hospital Mortuary for its postmortem where the postmortem was got conducted and thereafter the dead body of his father was entrusted to them for its cremation. He knows Ginni Panchal Tentwawla. Police apprehended accused Ginni Panchal, as well as Rajat Panchal (Juvenile). During interrogation, accused Ginni Panchal made disclosure statement of having committed the murder of his father Sujan Singh and got recovered one chura, one shirt belonging to his father and one another wearing shirt having blood stains of accused Ginni was also taken into possession. Accused also got recovered two pochhas (clothes). He also got recovered one rickshaw rehri which was lying outside shiv tent house, Gali No.8, Prem Nagar, Karawal Nagar. In his crossexamination he stated that he alongwith his mother after the removal of the dead body from the spot went with the police to the Gopal CD wala. They had gone to the shop of Gopal in police jeep. The shop of Gopal was opened but he does not remember whether adjoining shops were opened or not. SHO had made inquiries from Gopal. Police did not record any statement at the shop of Gopal. Thereafter he alongwith police officials left for the home of accused Ginni Panchal. He does not remember the time when he reached at the house of Ginni Panchal. FIR No. : 529/2005, PS: Gokalpuri Page 30 of 43
31 The distance between the house of Ginni Panchal and shop of Gopal is about 2 km. The house of accused Ginni Panchal was locked. There was no tenant in the house of accused Ginni Panchal. He again joined the investigation on 27.11.2004. On 27.11.2004 he alongwith his mother, brother and chacha (uncle) had gone to the hospital in the morning hours. He does not remember the time when they received the dead body of his father. His mother, his brother and his uncle Vijay had gone to the village alongwith the dead body of his father in noon hours. He further stated that after the cremation his mother had come to the house at about 6:00 or 6:30 pm on the same day from Mahender Garh. His mother and his chacha came on that day. His brother and sister stayed back at village. His brother and sister came from village after tehrenvi rituals (after 13 days.) His mother remained at home only upto 7:00 pm and thereafter two police officials in uniform came and he alongwith his mother accompanied them. We went alongwith them to the house of accused Ginni Panchal. They (police) disclosed to them that they had apprehended the accused Ginni Panchal and you have to (sic) identify him. He and his mother went on cycle rickshaw and police officials were on motorcycle. They reached at the house of accused at about 7:30 pm. Police prepared 8/9 papers, which were signed by him and ASI FIR No. : 529/2005, PS: Gokalpuri Page 31 of 43 32 Gajender Singh and his mother did not sign the papers. The police officials did not ask the neighbourers and his mother to sign the papers and again said those papers were signed by SI Suman, Ct. Raj Kumar, SHO, him and of accused Ginni Panchal. All the papers were signed by the above named persons. He cannot tell who is living in the adjacent house. The house of accused is faced by school. The house of accused is single story built on the ground floor. He does not remember how many rooms were there in the house of accused. He does not know the direction of the door of house of accused. He does not remember as to what was the source of the light where the writing work was done. The accused firstly got recovered the knife. Accused Ginni Panchal had disclosed that the knife is concealed on the roof and thereafter SI Suman Kumar, SHO, Ct. Raj Kumar, himself and accused Ginni Panchal went to the roof but he does not remember as to who had picked up the knife with the handkerchief. The knife was kept on the roof of the shop which was concealed underneath the corrugated tin sheets. The blade and handle of the knife was having blood stains. He does not remember as to what was recovered after the knife whether it was dusters (pocha) or shirts. The dusters were recovered from the house of latrine of the house of accused. The dusters were wet and blood stained. Firstly shirt belonging to his father was recovered FIR No. : 529/2005, PS: Gokalpuri Page 32 of 43 33 before the shirt of accused. The shirt was recovered underneath the bed in the room. He did not go (sic) inside the room at the time of taking out of the shirt.
31. PW1 Roshini Devi in her crossexamination made improvement at vital points, which she was confronted with. She had categorically stated that the arrest of the accused and recoveries effected thereafter were done in the presence of herself and her son Raju but only Raju had signed the said documents and she had not signed the same. The dead body of her husband was received by them on 27.11.2004 and her elder son Sikandar had accompanied the dead body to the native village. She herself and her son Raju had gone to the village. Her native village is in District Mahendergarh in Haryana which is about 200250 km. from her residence. She had gone to her native village on 28.11.2004 after her statements were recorded. They came back to Delhi after 67 days.
32. Her son PW6 Raju Togadiya as well as PW5 Sikander had categorically stated that mother had gone alongwith dead body with Sikander and other relatives to native village for cremation on the day when the dead body was handed over to them after postmortem and only Raju Togadiya remained in Delhi. As per statement of PW1 Roshini, the arrest of accused persons made on the day when the dead body was discovered and recoveries were effected, FIR No. : 529/2005, PS: Gokalpuri Page 33 of 43 34 whereas as per Raju Togadiya he again joined the investigation on 27.11.2004. His mother, his brother and his uncle Vijay had gone to the village alongwith the dead body of his father deceased Sujan Singh in noon hours and remained with the police officials. After the cremation her mother had come to the house at about 6:00 or 6:30 pm on the same day. On the other hand PW23 Inspector Satpal Singh, IO stated that on 27.11.2004 they stayed at the hospital upto 2:00/2:30 pm and handed over the dead body to Sikander Togadiya and Vijay cousin of the deceased probably at about 2:00 pm and the dead body was taken to the native place at Rajasthan for cremation. Keeping in view the distance between Delhi and Dist. Mahendergarh, Harayana ie. native village of PWs, which is about 200/250 km, it is highly unlikely and unbelievable that when the dead body was received by them in the afternoon itself, at about 2:00 pm according to IO, she after going to the native village in the afternoon and after cremation would return within six hours. Therefore the witnesses have stated falsehood about the same. Therefore it is not believable that recoveries were effected in the presence of PW Roshini who is trying to make improvement and showing herself as witness of recoveries.
33. On the other hand, as per investigation officer PW23 Inspector Satpal Singh, testified that on 27.11.2004 he alongwith FIR No. : 529/2005, PS: Gokalpuri Page 34 of 43 35 investigating team left for the postmortem and after postmortem handed over the dead body. He stated that the rest of the members of the deceased family left for cremation but one of his son Raju Togadiya remained with them and they left for the further investigation in case and reached at the residence of the accused. According to him, on 26.11.2004 they visited the house of accused where accused Giripal @ Ginni, Monu @ Rajat Panchal (juvenile) and Usha were present in their house. They were asked about master Sujan Singh. They gave contradictory statement and since it was quite late they went to the house of Roshini. He further stated that the pochas were produced which were lying near the bathroom. On 29.11.2004 he directed HC Prahlad to bring some expert from FSL Rohini to get the place of occurrence inspected by an expert, who brought Sh. Naresh Kumar, who lifted the blood from the wall of the room of north side (place of murder i.er the house of accused Giripal @ Ginni). PW18 HC Prahlad and PW10 Sh. Naresh Kumar, Sr. Scientific Assistant Biology corroborated the same. PW10 Sh. Naresh Kumar in his crossexamination admitted that one cannot detect from the naked eye whether it is human blood or paint or colour material any other red material. PS23 IO in his crossexamination stated that he had examined the accused Giripal, Rajat Panchal (Juvenile) and Ms. Usha but their statement was not FIR No. : 529/2005, PS: Gokalpuri Page 35 of 43 36 recorded as they were the suspects in this case. He stated that they for the first time had gone to the house of accused on 26.11.2004 at about 9:00 pm where accused Giripal, Rajat Panchal and Usha were present. The house of Giripal @ Ginni is in the area of 80/90 yards. It is single story house, built in half area. There were two rooms in the house but he cannot tell the area of the room. One room was occupied by tenant, who at that time was not present and he did not meet them at any point of time. At that time Raju Togadiya was with them. There was one almirah, one bed and some chairs in the room. Firstly he made inquiries from accused Giripal @ Ginni. He noted down the points on the inquires from Giripal @ Ginni, Rajat Panchal and sister of accused Giripal @ Ginni. From the inquiries, he concluded that the Giripal @ Ginni and Rajat Panchal are the culprits. The Giripal and Rajat Panchal were arrested and admitted their guilt. Again said that on 26.11.2004 he only made inquiries and noted down the points. He formed the opinion regarding the guilt on 27.11.2004. He categorically stated that he did not notice any blood stains on any articles in room and on the wall and on clothes. Once the witness has categorically stated that he had visited one day prior and also inspected the place but did not notice any blood stains on the wall then how bloodstains would appear after about two days of arrest of the accused persons. It is highly FIR No. : 529/2005, PS: Gokalpuri Page 36 of 43 37 unbelievable that the officer of the rank of the SHO is investigating the case had visited the room and did not notice bloodstains on the wall and again went on the next day arrested the accused, made all recoveries including bloodstains dusters (pochas) and it was disclosed to him that the murder was committed in the said room but he had not noticed any blood. Therefore it is highly unbelievable that bloodstains would appear after two days on the wall and the alleged blood stains on the wall is doubtful.
34. Now coming to the recoveries. The recoveries are doubtful as PW 1 Roshini claims that dog squad was called and searched two dusters (pochas) and thereafter the accused got recovered chura whereas her son PW5 Sikander contradicts her and claims that he alongwith his mother had gone to the village for the cremation of his father and had returned after chotha i.e. four days whereas PW 6 Roju Togadiya claimed that his mother returned on the same day at about 6:00/6:30 pm. Therefore, the presence of all witnesses at the time of recoveries are highly doubtful. Disclosure statement of accused Ginni does not bear the signature of his mother. Disclosure statement of accused Ginni and Rajat Panchal (juvenile) Ex.PW21/E and Ex.PW21/F respectively find the signature of Raju Togadiya without particulars whereas other memos finds signature of Raju Togadiya alongwith the details as FIR No. : 529/2005, PS: Gokalpuri Page 37 of 43 38 witness. Another significant noticeable point is that pointing out memos Ex.PW6/G finds the name of Raju Togadiya below the signature of preparer of memo. Similarly memos Ex.PW21/G, PW 6/D, PW6/E finds the signature of Raju Togadiya below or parallel to the signature of the preparer. It appears that his signatures were subsequently obtained and cited as witness. My view is further fortified by the seizure memo of rickshaw rehri Ex.PW6/F wherein there is over writing in name of witness no.2 Ct. Raj Kumar and Raju Togadiya has signed on the margin and shown as witness on the margin of the memo. Had he been present would have signed and the preparer would have mentioned him as witness on the right side and he would have been shown as witness no. 3. This clearly shows that Raju Togadiya was subsequently impleaded in these memos as witness to fortify the prosecution case.
35. The prosecution has examined Ct. Raj Kumar apart from Raju Togadiya, Roshini and IO. Lets examine his testimony. PW21 HC Raj Kumar deposed that on 27.11.2004, he alongwith Inspector Satpal Singh, SI Suman Kumar, SI Sanjeev Kumar and one boy namely Raju Togadiya, son of the deceased reached at the house no. 295, Gali No. 1+5, Roshan Vihar, Delhi in the investigation of this case, where accused Ginni and Rajat met them. IO interrogated FIR No. : 529/2005, PS: Gokalpuri Page 38 of 43 39 them. Both confessed the murder and both were arrested. Their disclosure statements were recorded. On the pointing out of Ginni one shirt of blue colour of deceased recovered lying under the bed in the same room having bloodstains. Son of deceased had identified the shirt. Whereas PW Raju Togadiya claims that he was not present inside the room at the time when the shirt was recovered. Thereafter Ginni Panchal and Rajat taken off their shirts which they were wearing at that time, which were seized. Thereafter both of them pointed out blood stains dusters, which were lying near toilet. They were found having blood stains. Thereafter accused Ginni Panchal led them to the roof of the house from where underneath the tin which was lying on the wall of the ground floor, he had taken out one chura (knife) having blood stains at the top of the blade. Thereafter they led the police party at Gali No. 8, Prem Nagar, where they pointed out towards the rehri in front of Shiv Shakti Tent House, and disclosed that they had carried the dead body of the deceased in the same rehri and thrown the same at near transformer, Roshan Vhar, IO seized the same. He was confronted with the statement that dusters were recovered at the instance of both the accused whereas it is recorded that it was recovered at the instance of accused Ginni Panchal. He was also confronted with the portion that accused Ginni Panchal had led FIR No. : 529/2005, PS: Gokalpuri Page 39 of 43 40 them to the roof of the house and from under the tin which was lying on the wall of ground floor wherein it is not so recorded, however it is recorded that the accused Ginni taken out the knife from roof underneath a tin. He stated that they reached at the house of the accused at about 4:00 pm. Accused alongwith his brother Rajat Panchal met. They were arrested at about 8:00 pm. From 4:00 pm to 8:00 pm they were only interrogated. He also admitted that one room in the house was let out but he does not remember whether the tenant or his wife and children were present. He cannot admit or deny whether there were family members of the accused persons and tenant and his family members were present in the house. He stated that there is a latrine in the house but he cannot say whether it is adjacent to the entrance gate. Accused Ginni opened the door of the house. He does not remember whether the main gate was of iron or wooden.
36. Inspector Satpal Singh in his crossexamination stated that Giripal, Rajat and Usha were present in their room but he did not record their statement. He did not record the statement of Ms. Usha before arrest of the accused persons. He made efforts to record her statement but she did not depose properly. No notice was given to her in this regard. He made effort to join the public witness but they refused to join. No notice was given nor their names were recorded. FIR No. : 529/2005, PS: Gokalpuri Page 40 of 43
41 He admitted the the suggestion that Raju Togadiya was not witness of their arrest. PW21 does not say that Usha was also present and IO made any effort to interrogate and made her witness in this case. IO claims that Usha was present but she did not give any statement. As already observed the presence of Raju Togadiya is highly doubtful at the time of recoveries. Raju Togadiya has shown as witness since the time of arrest and recovery but his signature does not appear on the arrest memo whereas both the forms provides space for three witnesses. In view of glaring inconsistencies between testimonies of IO, PW21 HC Raj Kumar in the manner the recoveries were effected and presence of persons in the house at the time of recovery, I am of the opinion that recovery of shirt of deceased, bloodstained dusters, shirt of the accused and blood stained knife is doubtful.
37. The prosecution has proved the following circumstance i. That dead body of deceased was found on 26.11.2004 between 6:00 am to 7:30 pm having injuries at Shahadatpur Transformer Wali Gali.
ii. That the dead body was having 24 injuries and injury no. 1, 2, 3, 6, 7, 8, 15 were caused by pointed blunt weapon and injury no. 4, 5, 9, 10, 11, 12, 13 and 14 were caused by sharped FIR No. : 529/2005, PS: Gokalpuri Page 41 of 43 42 edged weapon and injury no. 16 to 24 were produced y blunt force impact and injury no. 4, 5, 6, 7 and 15 were sufficient to cause death in ordinary course of nature.
38. The prosecution has failed to fully prove the following circumstances i. Last seen. That Sh. Gopal had seen the deceased on 25.11.2004 night in the company of accused Ginni Panchal, Rajat Panchal and Usha.
ii. Recoveries.
iii. That rehri was taken by Rajat Panchal (Juvenile) for
transporting the dead body
iv. Recoveries made at the instance of accused persons in
pursuance to their disclosure statement i.e. of dusters. v. That there was blood stains on the room where the alleged murder has taken place
39. Therefore the chain of circumstances is not completed and has been broken and the circumstances proved by the prosecution did not in any manner connect the accused Giri Panchal @ Ginni with the alleged offence. Therefore as per discussion above, I am of the opinion that the accused is entitled to benefit of doubt. Accordingly, FIR No. : 529/2005, PS: Gokalpuri Page 42 of 43 43 accused Giri Panchal @ Ginni is acquitted of the charge. His bail bond stands cancelled. Surety discharged. Case property, if any, be destroyed after the period of appeal. File be consigned to record room.
Announced in the open court today i.e. on 13.8.2010 GURDEEP SINGH ASJ04/NE/KKD/13.8.2010 FIR No. : 529/2005, PS: Gokalpuri Page 43 of 43