Delhi District Court
State vs . Rajeev Etc. Page No. 1 on 16 May, 2015
IN THE COURT OF SH.ATUL KUMAR GARG, ASJ - 03,
(CENTRAL) TIS HAZARI COURTS: DELHI
SC No. 80/11
State
... Complainant
Versus
1. Rajeev (Declared PO on 25.07.2013)
S/o Rameshwar Dayal
H.No. E-8, Prem Nagar-III
40 Foota Road, Kirarim
Nangloi, Delhi.
2. Rameshwar Dayal
S/o Shiv Dayal
H.No. E-8, Prem Nagar-III
40 Foota Road, Kirarim
Nangloi, Delhi.
3. Lakhan Singh
S/o Kartar Singh
H.No. E-92, Prem Nagar-III
40 Foota Road, Kirarim
Nangloi, Delhi.
... Accused Persons
FIR No. : 03/10
PS : Burari
U/S : 302/201/365/404/120-B IPC
FIR No. 03/10
State Vs. Rajeev etc. Page No. 1
Date of institution : 05.06.2010
Date of arguments : 15.05.2015
Date of Decision : 16.05.2015
JUDGMENT
1. Standards of proof to convict a person on circumstantial evidence has been couched by the Apex Court in the proposition that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused, when taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else, and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the 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. It needs no reminder that legally established circumstances and not merely anguish of the court can form basis FIR No. 03/10 State Vs. Rajeev etc. Page No. 2 of conviction and more serious the crime the greater should be the care taken to scrutinize the evidence, least suspicion takes place of proof.
2. Whether the prosecution could establish a complete chain of evidence which is conclusive in nature and consistent with the hypothesis of guilt of the accused and inconsistent with his innocence? For this, facts of the case are scanned. One Kunwar Kant Chaudhary had appeared in the police station on 04.01.2010 and given his statement regarding kidnapping of his son Sunil Kumar Chaudhary. In his statement, Kumar Kant Chaudhary has stated that he did the job of photography and has been residing at house No.3921, Gali No.105, B-Block, Sant Nagar, Delhi. His son Sunil Kumar Chaudhary did the job in a factory of AC part. Sunil was married with Rani D/o Luttan Jha on 22.11.2009. Thereafter, he came to know that Sunil was having relations with a girl Mamta Gupta and he used to meet her. Family of Mamta was annoyed with the marriage of Sunil. They persuaded Sunil to give divorce to his wife and marry with Mamta. Sunil was not agreed for this. FIR No. 03/10 State Vs. Rajeev etc. Page No. 3 On 25.12.2009, Sunil had gone to his work place at 9.30 a.m. in the morning and has not returned. He has also lodged a missing report in the PP Jharoda PS Burari on 27.12.2009. Now, he has expressed his apprehension that Sunil was kidnapped by the family members of Mamta. The above said information was endorsed by the police and got registered a case under Section 365 IPC. During the course of investigation, police collected the call details of mobile phone of Sunil bearing No.9313193003. It was analyzed and observed that he was in the Karol Bagh at about 11:47:14 hours and he had made and received three calls from the mobile No.9250066709 and he received three calls from the same mobile number at about 12:53:22, 13:24:38 and 14:02:21 hours when he was at Rohini and finally at Mangolpuri. As the family members of the deceased strongly suspected upon the family members of the Mamta Gupta to whom the deceased was in love regarding kidnapping of the deceased, therefore, all the suspects Rameshwar Dayal, Rajeev Kumar, Ram Bilash Gupta and Mamta Gupta were interrogated. Accused Rajeev Kumar and Rameshwar FIR No. 03/10 State Vs. Rajeev etc. Page No. 4 Dayal admitted their guilt. They also disclosed that they had hired one Lakhan Singh, a neighbour for kidnapping and they had given Lakhan Singh an amount of Rs.20,000/-. Accused Rameshwar Dayal called Sunil at about 11:47 and asked him to come at Mangolpuri to discuss the matter of marriage of Mamta with him. Sunil went at Mangol Puri near Sanjay Gandhi Hospital and the accused persons, namely, Rameshwar Dayal, Rajeev Kumar and Lakhan Singh also reached there and took Sunil in a Santro Car by telling him to visit the house of his younger brother near Vijay Nagar, Ghaziabad. They had persuaded Sunil to drink alcohol. Lakhan and Sunil drink alochol and Rajiv was driving the car towards Dadri where they fixed a plastic rope with the handle of the car and both Rameshwar Dayal and Lakhan put the rope in the neck of deceased Sunil and tied the other end of the rope from behind till Sunil died. At the Dadri Road, they took a turn towards a lonely road where they found some consciousness in the body of Sunil so Lakhan Singh searched for a tool in the car and he found one Pana under the front seat and he hit the deceased Sunil three FIR No. 03/10 State Vs. Rajeev etc. Page No. 5 four times at the neck with the sharp edge of Pana. Thereafter, they all dumped his body near Kuri Khera village, near GT Road, Dadri UP. Before dumping the dead body of Sunil, they took all the belongings of deceased Sunil and distributed the valuable and thrown away all other articles in the way back to Delhi. Thereafter, they had pointed out the place of dumping of the dead body. Thereafter, the matter was enquired from the local police and it was revealed that the dead body was found on 25.12.2009. Dead body was identified by the relatives of the deceased as of Sunil. All the accused persons were arrested in this case. After completion of the investigation, police had filed the charge sheet in the court.
3. After being heard, vide order dated 28.8.2010, all the three accused persons were charged for the offence punishable under Section 120-B IPC, 364/120-B IPC, 302/120-B IPC, 201/120-B and 404/120-B IPC. All the accused persons pleaded not guilty and claimed trial.
4. In order to substantiate the charge, the prosecution had FIR No. 03/10 State Vs. Rajeev etc. Page No. 6 relied upon as many as forty three witnesses, namely, Kumar Kant Chaudhary, Rambir Singh, Sharvan Kumar, Dhananjay Gupta, Kumari Mamta Gupta, Ram Vilas Gupta, Ashwani Kumar, Prem Shanker Sharma, Umesh Kumar, Yashveer Singh, Suraj Pal, Munne, Mundraj, Naresh, Sukhmal, Satvir, Mukesh, Anil, Mukesh, Kishore Lal, Ct. Surender Sharma, SI K.P. Singh, SI Ramveer Singh, Ct. Mahender, HC Pradeep, Ct. Yogender, Mohd. Sakil, Nodal Officer Reliance Communication, Ct. Khushal Singh, Nodal officer, Tata Teleservices Ltd., Motor Licensing Officer, Motor Licensing Officer, Laxman Verma, Dr. Raj Singh, HC Amar Nath, HC Dharampal, HC Rajeev, Sh. Sudesh Kumar, SI Mahesh, MHC(M) Burari, SI Sanjay Kumar and Insp. J.S. Mishra. However, the prosecution had examined thirty three witnesses in all.
5. Prosecution evidence consists of three set of evidence. First set of evidence consists of oral testimony of Kunwar Kant Chaudhary, Shravan Kumar, Dhananjay Gupta, Mamta Gupta, Ashwani Kumar, Umesh Kumar, Ram Bilash Gupta, Suraj Pal, FIR No. 03/10 State Vs. Rajeev etc. Page No. 7 Ashish Jain, Sukhmal Jain, Naresh Jain, Rambir Singh, Satbir and Anil examined as PW1 to PW14 respectively by the prosecution. Second set of evidence consists of medical testimony of Dr. Raj Singh examined as PW30 by the prosecution. Remaining witnesses are of the police officials, who had carried out the investigation in this case.
6. PW 5 had noticed a male dead body of one unknown person aged around 20-22 years lying on the boundary of the field belonging to one Sunil Yadav. He noticed gun shot injury on the neck of the dead body. He has informed to PS Badal Pur. PW15 Const. Prem Shanker Sharma was working as DD writer in the PS Badalpur Gautam Budh Nagar. On 26.12.2009, one person namely, Ashwani Kumar of village Bumbawat came at the PS and informed about a dead body lying on the way to village Kudi Khera. Accordingly, he made a DD entry and registered a case FIR No.284/09 under Section 302/201 IPC and handed over to the SHO PS Badalpur for investigation. PW 6 and PW 8 were passing through the road when they found police and several persons FIR No. 03/10 State Vs. Rajeev etc. Page No. 8 gathered near agricultural field falling in their village where dead body of a young boy was lying. At request of SHO, PS Badal Pur and He signed the panchnama bearing his signatures at point A which is Ex. PW 6/A.
7. PW20 was posted as Sub-Inspector in the PS Badalpur, Distt. Gautam Nagar. On 26.12.2009, on receiving the information regarding one unidentified dead body lying on the way to village Kudi Khera, he alongwith SHO PS Badalpur Laxman Verma reached at the spot and found the dead body of a man aged about 25-26 years whose death was appearing to have been caused by firing a gun shot on his neck/ throat. He got the spot photographed. Despite efforts, identity of the dead body could not be fixed as such, he sent the dead body through Const. Surender and home guard Sanjay Sharma to the mortuary. He conducted/ executed the panchnama and the proceedings of the panchnama available on the judicial file have been proved as Ex.PW6/A. His request for postmortem was Ex.PW20/A. The image of the dead body depicting the injuries was Ex.PW20/B. PW21 Const. Surender FIR No. 03/10 State Vs. Rajeev etc. Page No. 9 Sharma was also posted at PS Badalpur, Distt. Gautam Budh Nagar, UP on 26.12.2009. He deposed that ASI Kishori Lal prepared the panchnama Ex.PW6/A and the dead body was shifted to the mortuary under his supervision alongwith home guard Sanjay Sharma. The dead body was subjected to postmortem and the sealed pulanda received from the mortuary was deposited at PS Badalpur. Photographs of the dead body were also clicked and the same are Ex.PW1/H-1 to Ex.PW1/H-3. Dead body was cremated as the same was unidentified. PW22 deposed that on 6.1.2010, one person, namely, Kunwar Kant Chaudhary was accompanied with Inspector J.S. Mishra of Delhi Police had reached at PS Badalpur. On enquiry, he had handed over the copy of the FIR No.284/09 PS Badalpur to Inspector J.S. Mishra. He had also shown the photographs Ex.PW1/H-1 to Ex.PW1/H-3 and one sealed bundle of clothes of deceased to Inspector J.S. Mishra and Kunwar Kant Chaudhary. The pulanda was opened and Kunwar Kant Chaudhary identified the clothes of his deceased son Sunil Chaudhary and also identified his deceased son in the photographs. FIR No. 03/10 State Vs. Rajeev etc. Page No. 10
8. PW26 SI Laxman Verma has deposed that on 26.12.2009, he was posted as SHO PS Badalpur. On that day, one Ashwani Kumar came to the police station and reported that one dead body was lying at the Khudi Khera Road. At around 8:45 a.m. an FIR bearing No.284/09 was registered. Panchnama in regard to the dead body was made and dead body was sent for postmortem. Belongings i.e. clothes, shoes etc. were seized. He got the dead body photographed. He deposed that on 6.1.2010, Inspector J.S. Mishra PS Burari came to the police station and he made enquiry regarding the dead body which was recovered in their area. Father of the deceased was also accompanied with Inspector J.S. Mishra. He had shown the photographs and clothes of the deceased and the same were identified by the father of the deceased. PW 32 had accompanied SHO/SI Laxman Verma of PS Badalpur after receiving the information of a dead body lying by the side of the road at village Kurikhera. He had seen the photographs placed on the file Ex. PW 1/H-1 to PW 1/H-3.
9. PW 16 had joined the investigation on 06.01.2010 along FIR No. 03/10 State Vs. Rajeev etc. Page No. 11 with IO SI Sanjay Kumar, Ct. Yogender and HC Pradeep. On that day, IO SI Sanjay Kumar had called Rameshwar Dayal, Ram Bilas, Rajeev @ Kallu and one girl namely , Mamta in PP Jharoda for inquiry in connection with the present case. He has witnessed the disclosure statement given by accused Rameshwar Dayal, Rajeev. IO arrested the accused persons. He had also witnessed the arrest memo and personal search memo. Accused Rameshwar Dayal further disclosed the fact that while disposing the dead body of the deceased Sunil Kumar Chaudhary, his bag, mobile phone, ring and wrist watch had been taken away by them and the bag and mobile phone had been thrown whereas the wrist watch was kept by accused Rajiv @ Kallu and the ring was kept by accused Rameshwar Dayal. Thereafter, accused Rameshwar Dayal produced two rings which he was wearing stating that one ring belonged to him and the other ring belonged to deceased Sunil Kumar Chaudhary. Both the rings were taken into separate pullandas and sealed with the seal of SK and seized vide seizure memo Ex. PW 16/G bearing his signature at point A. Both the FIR No. 03/10 State Vs. Rajeev etc. Page No. 12 persons had also disclosed about the involvement of accused Lakhan. He had also witnessed the arrest of accused Lakhan in the present case. He had also witnessed the recovery of one motorcycle belonging to deceased Sunil which was found parked outside his house. He had also witnessed the recovery memo of Santro Car bearing no. DL7C C 0810 of silver colour which was parked at 40 foota road at some distance from his house. He had also identified the case property as well as accused persons.
10. PW 17 HC Pradeep deposed that DD no. 25, PP Jharoda dated 27.12.09 in respect of missing report of one Sunil Kumar Chaudhary was marked to him. He completed the necessary formalities and he obtained the call detail record of the mobile phone of Sunil Kumar Chaudhary. He obtained the relevant call details of other mobile phone numbers with which Sunil Kumar Chaudhary was in touch for most of the time. On 04.01.2010 he submitted the necessary documents to SI Sanjay Kumar who had joined his duties after availing the leave. On 04.01.2010 SI Sanjay Kumar had got the FIR registered in the case. On 06.01.2010 FIR No. 03/10 State Vs. Rajeev etc. Page No. 13 accused Rameshwar Dayal and Rajeev were called in PP Jharoda. They were interrogated and they gave their disclosure statements in his presence. PW 18 had scribed the FIR being the duty officer and proved the same as Ex. PW 18/A. PW 19 was entrusted the four sealed pullandas along with sample seal from MHC (M) and he deposited the same in the office of FSL Rohini vide FSL-2010/B 1104 vide road certificate. He had deposited the same and receipt was handed over to the MHC (M). PW 22 deposed that on 06.01.2010 while posted at PS Badalpur, Distt. Gautam Budh Nagar, he handed over the copies of FIR no. 284/09 PS Badalpur to Inspector J.S. Mishra. He had also shown the photographs and one sealed bundle of clothes of deceased to Insp. J.S. Mishra and Kunwar Kant Chaudhary. It was opened and Kunwar Kant Chaudhary identified the clothes of his deceased son Sunil Kumar Chaudhary and identified the photographs. Insp. J.S. Mishra prepared memo Ex. PW 1/F bearing his signature at point A.
11. PW 23 had brought the summon record in respect of the mobile number 92500066709 which was issued in the name of FIR No. 03/10 State Vs. Rajeev etc. Page No. 14 Rameshwar Dayal on his voter identity card. He proved the Customer Application Form as Ex. PW 23/A. He proved the call details of the aforesaid mobile number from 15.12.2009 to 05.01.2010 running into eight pages as Ex. PW 23/B. He had also brought the record in respect of mobile number 9210461290 issued in the name of Rajiv Kumar on his voter identity card. He proved the Customer Application Form as Ex. PW 23/C. He had also brought the call detail of the aforesaid mobile number from 15.12.2009 to 05.01.2010 running into thirty four pages as Ex. PW 23/D. He brought the Cell ID Chart of both the aforesaid mobile numbers running into three pages and proved the same as Ex. PW 23/E. PW 24 Ajit Kumar had brought the record of Customer Application Form in respect of mobile number 9313193003 which was issued in the name of Sh. Naresh Chand Jain on his driving license. He had also brought the call detail record along with Cell ID Chart of the aforesaid mobile number from 15.12.2009 to 25.12.2009 running into fourteen pages and proved the same as Ex. PW 24/B. PW 25 has brought the record in respect FIR No. 03/10 State Vs. Rajeev etc. Page No. 15 of motorcycle bearing registration no. DL6S AC 7530 make Bajaj Discover which was registered in the name of Kunwar Kant Chaudhary. He proved the said record as Ex. PW 25/A. PW 27 had received the case file in case FIR No. 284/09 under Section 302/201 IPC and a duly sealed pullanda and one sample seal on 28.02.2010 and the file was seized by Inspector J.S. Mishra vide memo Ex. PW 27/A bearing his signatures at point A. PW 28 had given the articles brought by HC Rajeev in case FIR no. 284/09 under Section 302/201 IPC and handed over to Inspector J.S. Mishra who seized the same as Ex. PW 27/A. PW 29 has measured the spot and prepared rough notes. Subsequently, on 31.03.2010 on the basis of the rough notes, he prepared the scaled site plan Ex. PW 29/A bearing his signature at point A.
12. PW 31 Inspector Sanjeev Kumar, conducted the earlier investigation. He deposed that on 27.12.2009, one Kunwar Kant Chaudhary has lodged the missing report of his son. He further deposed that he had given the statement. He was read over the contents. He had endorsed the statement and got registered the FIR No. 03/10 State Vs. Rajeev etc. Page No. 16 case. He had collected the documents qua missing recorded by complainant from HC Pradeep with whom the DD was marked. He wrote letter to respective mobile subscriber for providing the call detail report of victim Sunil suspects Rameshwar Dayal and Rajeev which were received and analysed. He deposed that as per analysis of CDRs Rameshwar Dayal had called at the number of Victim Sunil on 25.12.2009 at about 2.46 pm from his number. The lacation as per the mobile of Sunil, his presence was found at Mangol Puri ie., the residence of accused persons. From the further analysis of the call details of the above said persons, it was found that Rameshwar Dayal had called at the number of Rajeev on 25.12.2009 at about 2.45 pm. As per the location of the mobile phones of accused Rajiv, his movement was found from Mangol Puri t Paschim Vihar. Thereafter Lajpat Nagar, Noida, Ghaziabad and ultimately Bulandshar. The locaion of Sunil was found to be almost simultaneously. Accused Rajeev was interrogated and during interrogation he has revealed that he has not gone outside Delhi on that day. He was freed there and further directed to join FIR No. 03/10 State Vs. Rajeev etc. Page No. 17 investigation on next day. On the next day ie., 06.01.2010, he interrogated Rameshwar Dayal and Rajeev separately and it was revealed from that Mamta and Sunil were having deep love affair with each other and Sunil was married with some other girl but despite his marriage he continued to meet with Mamta and on this account there was enmity between victim Sunil and accused persons and they further disclosed that Sunil was taken by the accused persons in their Santro Car along with their servant Lakhan to Bulandshar from Mangol Puri and they killed the Sunil. He further deposed he had arrested both the accused persons. He had recorded their disclosure statement. He had also taken into possession one wrist watch of golder colour at the instance of accused Rajeev. He had also taken into possession the mobile phone used in the commission of offence vide seizure memo Ex. PW 16/J. Thereafter accused Rameshwar Dayal produced two golden colour rings and one of them was of deceased Sunil. He had taken into possession both the golden rings. Thereafter investigation of this case was handed over to Inspector J.S. FIR No. 03/10 State Vs. Rajeev etc. Page No. 18 Mishra. Inspector J.S. Mishra again interrogated accused Rajeev and Rameshwar Dayal and thereafter got brought one private vehicle from Prem Nagar-III, Nangloi, Delhi. Accused persons pointed out H.No. F-92, Prem Nagar-III, Kidari, Nangloi and pointed out the house of the accused Lakhan and Lakhan was apprehended on the identification of accused persons. Lakhan was interrogated and thereafter he was arrested. His personal search was conducted and disclosure statement was recorded. In pursuance of disclosure statement accused Lakhan got recovered cash Rs. 16,500/- from underneath the mattress of the bed kept inside the house. Accused Lakhan got recovered one Bajaj motorcycle which was parked outside his house and the registration of the motorcycle, the last four digits he remembered is 7530. Onse Santro car was also parked near the house of Rameshwar Dayal and Rajeev. Complainant Kunwar Kant Chaudhary was also called and thereafter they all left for Dadri. Accused was asked to take the same route through which they had traveled on 25.12.2009. Necessary instructions were given to the FIR No. 03/10 State Vs. Rajeev etc. Page No. 19 driver and they started for Dadri and on the way they reached at Noida, Toll Bridge and IO tried to check the video clip recording of the Toll Bridge but nothing substantive was found and thereafter IO gave a notice under Section 91 Cr.PC to the officials of Toll Bridge. Thereafter, accused took them to Main Hapur Road and accused pointed out towards Basti on the right side of Vijay Nagar By-Pass. Accused had pointed out that place as a place where they had got changed the burst tyre of the Santo Car and have also told that from nearby Wine Shop they had taken the wine an beer which was consumed by Lakhan, Rajeev and Sunil. The place was subsequently known to be Behrampur and Rahul Vihar. IO inquired from Mukesh and Amul who had changed the tyre and recorded their statements. The inquiry was conducted from the Wine shop but they could not indentify the accused persons nor photo of Sunil. Thereafter crossing the PS Badal Pur, accused persons pointed out towards left side morh, a lonely place and said that at this place they had thrown the dead body of Sunil near the wall. Some blood was found appearing on the straw FIR No. 03/10 State Vs. Rajeev etc. Page No. 20 present there and one inch tape in broken condition. Accused persons had pointed out a vacant plot having boundary and one gate and that place was identification to be place where the dead body of Sunil was thrown after killing. The broken inch tape and blood stained grass was taken into possession vide seizure memo Ex. PW 1/P-1. There they went to PS Badalpur. SI Mohd. Shakeel/ SHO of PS Badalpur met there and he had informed about the facts of the case stating that on 26.12.2009 at about 4.00 am information qua lying of one known dead body was received from that place which was pointed out by the accused persons. Vacant plot was one of the Sunil Yadav. SI Mohd. Shakeel further informed that one FIR no. 284/09 was registered in this regard at PS Badalpur. SI Mohd. Shakeel has shown three photographs taken by the IO. On 08.02.2010 Shrawan Kumar, brother in law of deceased was called and he handed over one receipt qua purchasing of gold ring Ex. PW 2/A-1.
13. PW 33 the IO Inspector J.S. Mishra. He had reiterated the entire fact which PW 32 had reiterated in his evidence after FIR No. 03/10 State Vs. Rajeev etc. Page No. 21 investigation was transferred to him.
14. PW 30 Dr. Raj Singh had conducted the autopsy of the dead body of the unknown person male 25 years on 26.12.2009 at Mortuary Government Hospital, Noida, Gautambudh Nagar. The Postmortem was commenced at about 3.45 pm. The rigor mortise was found present on the dead body. On examination, four ante- mortem injuries were found 35 cm long and 0.5 cm wide ligature mark around the neck, 6 cm below right ear and 6 cm below the chin and 5 cm below left ear, multiple lacerated wound five in numbers on the front of the neck of the size from 0.25 cm X 0.25 to 3 cm X 1.5 cm which were extending upto trachea and trachea was cut. Margins were ragged, muscle deep 2 cm X 1 cm lacerated wound at the left side of the neck, muscle deep 1 cm X 1 cm lacerated wound at right side of the neck 10 cm superolatereol to the medial end of right clavicle. Brain, lungs, pancreas, spleen, gal bladder, kidneys and liver were congested. About 150 ml semi digested food was found in the stomach. Full digested food was found in intestine. In his opinion, the death was due to asphyxia FIR No. 03/10 State Vs. Rajeev etc. Page No. 22 due to strangulation and cutting of trachea, and hyoid bone of neck was fractured. Death had taken place around 1 to 1 ½ day prior to conducting the postmortem. He had proved the post mortem as Ex. PW 30/A. He handed over the inquest papers 12 copies to the police officials after his signature on them. On 11.03.2010, a request was received from IO for further opinion in the matter. IO had produced one sealed parcel with the seal of JSM and the postmortem report. He opened the parcel and on opening one tyre liver (pana) of iron made was taken out. He prepared a small diagram of the same and gave the subsequent opinion that injuries mentioned in postmortem report Ex. PW 30/A is possible by the tyre liver produced by IO except injury No. 1.
15. PW1 is the father of deceased. He was the photographer working in a shop at Chandni Chowk. He deposed that Sunil Kumar, deceased left for work as usual on 25.12.2009. In the evening from work, he went to the house of his maternal nephew at Karawal Nagar because he and his nephew were planning to go to Haridwar. At 9.00 p.m., when he called at his home, his wife FIR No. 03/10 State Vs. Rajeev etc. Page No. 23 told that Sunil had not come back. He used to come back by 9.30 or 10.00 p.m. in the evening. Thereafter, he was informed that Sunil had not come at home yet. Though they were worried but they thought it was X-mas day, Sunil might have gone with some friends somewhere or he might have gone to his office to sleep over night. In the morning, he came back to his residence at Sant Nagar, Burari but Sunil had not come back. He enquired from his friends but they had no information about him. He tried to search his son and came to know that Sunil had not come to his office on 25.12.2009. Thereafter, on 27.12.2009, he reported the matter to the police. On 28.12.2009, he again approached Mannu, colleague of his son and persisted with his enquiries. He told that his son Sunil has been talking to one girl Mamta Gupta and used to chit chat on computer/ Internet also with her. On 04.01.2010, he again visited the police post Jharoda, PS Burari, where he lodged a complaint, which is Ex.PW1/B. On 06.01.2010 at about 3.00 p.m, he was called at police post Jharoda and he was informed that his son Sunil had been murdered. Police had apprehended three FIR No. 03/10 State Vs. Rajeev etc. Page No. 24 persons in connection with the murder. In the evening, the police alongwith three offenders had left from the police post Jharoda. On the identification of the offenders, the police talked to the puncturewala and the puncturewala identified the offenders and confirmed that an old tyre was purchased by them. Thereafter, liquor shop was identified by the accused persons. Thereafter, pointing out memo was prepared. The police also found a bunch of blood stained dry grass and piece of inch tape. He had identified the dead body of Sunil from the photograph at PS Badalpur. He had identified the exhibits produced by the prosecution as Ex.PX1 to Ex.PX8 i.e. Baniyan, Pant, belt, jacket, shoe, socks and underwear.
16. PW2 Shravan Kumar is the brother in law of the deceased.
He has submitted one receipt regarding ring to the police and the same was seized vide memo Ex.PW2/A. He had identified the case property as Ex.P1. He had identified the same in the TIP.
17. PW3 Dhananjay Gupta was running a business in the gold and silver jewellary in the name and style of M/s Om Jewellers in FIR No. 03/10 State Vs. Rajeev etc. Page No. 25 the market at Jaitpur. He was called to the police station Burari on a date, which he did not remember and he was shown a receipt belonging to his firm. He had seen the receipt on the judicial record which is Ex.PW2/A-1. He has made a statement to the police that a gold ring about 3.840 mg. was sold by him to one Sharvan Kumar in connection with the marriage of his sister Rani. He deposed that he took Rs.400/- towards the polish charges and he was paid a sum of Rs.7435/- towards that ring. He has submitted that he has identified the ring in the TIP.
18. PW4 is Mamta Gupta. She has denied to have any affairs with the deceased Sunil Kumar Chaudhary. PW7 Ram Bilas Gupta had denied that the police had ever enquired from him in this case. He has denied that his daughter Mamta was having any friendship with Sunil Kumar Chaudhary. He has admitted that he was the registered owner of Santro Car bearing No. DL-7CC 0810.
19. PW9, PW10 and PW11, namely, Ashish Jain, Sukhmal Jain, Naresh Jain have been examined by the prosecution to prove the fact that mobile phone bearing No.9313193003 was being used by FIR No. 03/10 State Vs. Rajeev etc. Page No. 26 the deceased. It was in the name of Naresh Chand Jain. However, according to the prosecution, the said phone was being used by the deceased. Admittedly a copy of the driving licence of PW11 have been annexed with the customer application form of mobile phone bearing No.9313193003 issued to Naresh Chand Jain. These witnesses deposed that Sunil had come at work on 25.12.2009. However, he left after receiving the phone immediately and did not come.
20. PW12 Rambir Singh has deposed that he was present on 6.1.2010 when he was going towards the village Kudi Kheda. He saw a vehicle standing near NPC School. Near the vehicle the police officials were also standing. Two or three persons were sitting inside the vehicle. When he passed that way, the police officials asked him to help them. He has submitted that in his presence, the police had prepared the documents Ex.PW1/C, Ex.PW1/D and Ex.PW1/E1. He had identified the accused persons sitting in the vehicle, on whose instance, the police had prepared these documents and had taken the blood stained grass and piece FIR No. 03/10 State Vs. Rajeev etc. Page No. 27 of inch tape lying there.
21. PW13 had denied the statement given to the police that three accused persons on 6.1.2010 had come alongwith police and he has stated to the police that on 25.12.2009, all the three accused persons alongwith one boy had come to his khokha and purchased one old tyre for Rs.850/- and got the same fitted in their Santro Car with the help of one Mukesh and Anil. He further denied that he had identified the boy Sunil Kumar i.e. the deceased in the photographs shown by the police. PW14 has also denied the statement given to the police that he had identified the deceased on the photograph shown by the police stating that the it was some boy who had come alongwith the accused persons to his shop at 5.00 or 5.30 p.m. on 25.12.2009.
22. In order to afford an opportunity to explain the circumstance appearing in evidence, accused Rameshwar Dayal and Lakhan were examined under Section 313 Cr.P.C. Entire incriminating evidence was put to the accused persons. Both the accused persons claimed innocence and false implication. However, they did not FIR No. 03/10 State Vs. Rajeev etc. Page No. 28 prefer to examine any witness in defence.
23. On behalf of the State, Sh. Alok Saxena, Ld. Addl. PP had submitted that from the post mortem report Ex. PW 30/A. Prosecution has proved the fact that death of the deceased was due to the asphyxia due to strangulation and cutting trachea. Hyoid bone of neck was fractured. Even injury no. 2, 3 and 4 has been opined to be caused by the pana which has been recovered at the instance the accused persons when they had lead the police party to the spot where they had committed the murder. He further submitted that there were call details regarding all the mobile phones of the deceased as well as of accused persons. Accused Rameshwar Dayal was in continuous touch with the deceased and the location of the mobile phone of the Rameshwar Dayal and deceased on the day of kidnapping are the same. He further submits that Rameshwar Dayal has not given any answer as to why he was in touch with the deceased. He submits that prosecution has proved tis case against the accused persons under Section 120-B, 364/120-B, 302/120-B, 201/120-B, 404/120-B IPC FIR No. 03/10 State Vs. Rajeev etc. Page No. 29 as the articles of the deceased were found in possession of the accused persons. From the possession of accused Lakhan, an amount of Rs. 16,500/- has been recovered.
24. On the other hand, Ld. Counsel of the accused Rameshwar Dayal and Lakhan had rebutted the arguments stating that there is no evidence connecting the accused persons with the present case. They said that the case of the prosecution is based on circumstantial evidence. The chain of circumstantial evidence is broken from everywhere. It is not chain which has been broken from one place but there is no chain which lead to the conclusion that death of the deceased was committed by the accused persons in furtherance of their common intention further conspired with each other in eliminating the deceased. He submits that motive has not been established by the prosecution in the case because the PW 4 Mamta Gupta to who the prosecution has alleged that she had love affair with the deceased has not supported the prosecution case. Nor the prosecution has brought any call detail to the aspect that she was in touch with the deceased, even prior to the date of FIR No. 03/10 State Vs. Rajeev etc. Page No. 30 commission of offence. He further submitted that last scene of witnesses has not supported the case of prosecution. PW 13 and PW 14 who have allegedly changed the burst tire, has also not supported the case of prosecution. They had denied that on 25.12.2009, all three accused persons along with one boy had come to his khokha and purchased one old tyre for Rs. 850/- and got fitted in their Santro Car. He further submits that the conduct of the accused are also of not such a nature as to make them suspicious. They were very much present in their house when IO served notice under Section 160 CrPC. He further submits that accused deserves to be acquitted.
25. The case of the prosecution is that accused Rameshwar Dayal, Rajeev and Lakhan had conspired with each other to eliminate the deceased and for this purpose they had kidnapped the deceased on 25.12.2009 and had taken him to the area of PS Badalpur where they had murdered the deceased. The missing report was lodged by the father of the deceased on 27.12.2009 and FIR was registered on 04.01.2010 where the complainant had FIR No. 03/10 State Vs. Rajeev etc. Page No. 31 expressed his suspicion over the accused persons. On 06.01.2010, accused persons have been arrested and they had led the police party to the place of occurrence where they had identified the pana which was got recovered by the accused persons. Accused persons had produced the belongings of deceased ie., rings, wrist watch etc. and from the possession of accused Lakhan an amount of Rs. 16,500/- was recovered. He had also got recovered the motorcycle of the deceased. One unclaimed and unknown dead body was also found in the area of PS Badalpur and it was postmortemed by the PS Badalpur. Photograph was shown to the father of the deceased who had identified the same as of his son.
26. It is an admitted fact herein that in missing entry Ex. PW 1/A and in the FIR Ex. PW 18/A, the complainant has not mentioned any fact regarding the mobile number of the deceased as well as the vehicle on which he had gone to his work on 25.12.2009. However according to the prosecution witnesses, they had taken the detail of the mobile phone of the deceased. The mobile phone was in the name of one Naresh Chand Jain. FIR No. 03/10 State Vs. Rajeev etc. Page No. 32 Prosecution has examined three witnesses to this aspect of the the said mobile phone which was in the name of Naresh Chand Jain. These three witnesses namely Ashish Jain, Sukhmal Jain and Naresh Jain did not depose anywhere that they did not know Rameshwar Dayal. The mobile phone in the name of Naresh Chand Jain was in continuous touch with the mobile phone of Rameshwar Dayal. Motive in the present case has not been proved by the prosecution because the Mamta to whom the prosecution has alleged that she had love affair with the deceased did not support the prosecution case, even otherwise the prosecution has failed to establish the fact by any other mode that she was in continuous touch and she had been deposing falsely. However, it is not necessary that motive shall have been proved in every case based on circumstantial evidence. However motive assumes importance in case of murder based on circumstantial evidence. Non-existence of motive does not necessarily mean that the prosecution case fails. Prosecution succeeds in its case if it has chained the circumstances by other evidences leading to the FIR No. 03/10 State Vs. Rajeev etc. Page No. 33 murder. Even in the present case there is not evidence on record to connect the accused persons in the present case. Last scene of evidence was not proved by the prosecution because PW 13 and PW 14 to whom prosecution has relied that they had seen the accused because they had changed the burst tyre has not supported prosecution case. Even the prosecution has alleged that they had purchased the wine but the wine shopkeeper has expressed his inability before the IO to identify the accused persons as well as the deceased.
27. Conduct of the accused is also relevant. They were found present in their house. The prosecution alleged that accused Rameshwar Dayal had given himself the rings to the IO when they had asked but it is very unusual that both rings had been worn by the accused Rameshwar Dayal and the same had been taken into possession by the IO. If a person knew that the ring was of the deceased then he must know as to which ring belongs to him. It is further unusual that the person after committing murder had worn the same ring of the deceased and had come to the police station. FIR No. 03/10 State Vs. Rajeev etc. Page No. 34
28. The case against the accused Lakhan is also very weak in nature according to the prosecution. Accused Lakhan has been roped by the remaining accused persons Rameshwar Dayal and Rajeev for eliminating the deceased and they hired Lakhan Singh for an amount of Rs.20,000/- and out of this Rs. 16,500/- were recovered. He had also got recovered one motorcycle. Recovery of motorcycle is doubtful because the complainant Kunwar Kant Chaudhary had not stated anything in his missing report Ex. PW 1/A as well as in the statement Ex. PW 1/B dated 27.12.2009 to 04.01.2010 respectively. It is not the case of prosecution that the father of the deceased has several motorcycles. The father of the deceased has only one motorcycle. If the deceased had gone along with motorcycle on 25.09.2009, then he must know that the motorcycle is missing from the house. But nothing mentioning above these facts by the father of the deceased in his missing report as well as in his statement dated 27.12.2009 and 04.01.2010 makes the recovery of the motorcycle at the instance of the accused Lakhan doubtful. Similarly the recovery of an amount of FIR No. 03/10 State Vs. Rajeev etc. Page No. 35 Rs. 16,500/- from the accused Lakhan, does not inspire confidence. Prosecution has not established that accused Lakhan has any relation with the accused or he works with the accused Rameshwar Dayal and Rajeev. There is no other evidence on record that accused Lakhan had gone with the accused Rameshwar Dayal and Rajeev and killed the deceased. Therefore, the prosecution has failed to prove its case against the accused persons.
29. In view of the above discussions, I am of the view that the prosecution has failed to bring home the guilt against the accused persons under Section 302/201/34 IPC beyond reasonable doubt. Circumstantial evidence are broken from everywhere in this case. Therefore, benefit of doubt is given to the accused persons. Accordingly, accused Rameshwar Dayal and Lakhan are acquitted from the offences punishable under Section 302/201 IPC. Their personal bond and the surety bond stands canceled. They are released forthwith, if not required in any other case. However, they are directed to furnish bail bond in terms of Section 437-A Cr.PC. FIR No. 03/10 State Vs. Rajeev etc. Page No. 36 File is consigned to record room with the direction that as and when accused Rajeev is arrested, the same be revived. Announced in open court On 16.05.2015 (ATUL KUMAR GARG) Addl. Sessions Judge-03 (Central) Delhi FIR No. 03/10 State Vs. Rajeev etc. Page No. 37 State Vs. Rajeev etc. FIR No. 03/10 PS : Burari 16.05.2015 Present : Sh. Alok Saxena, Ld. Addl. PP for the State.
Both accused produced from J/C along with Ld. Counsel. Accused Rajeev is PO.
Vide my separate order dictated and announced in open court, accused Rameshwar Dayal and Lakhan are acquitted from the offences punishable under Section 302/201 IPC. Their personal bond and the surety bond stands canceled. They are released forthwith, if not required in any other case. However, they are directed to furnish bail bond in terms of Section 437-A Cr.PC. File is consigned to record room with the direction to the record keeper not to destroy the file because as and when accused Rajeev is arrested, the same be revived.
(Atul Kumar Garg) ASJ-3 (Central)/16.05.2015 FIR No. 03/10 State Vs. Rajeev etc. Page No. 38