Delhi District Court
State vs . 1. Deepak Kumar S/O. Sh Murari Lal R/. H. ... on 13 December, 2011
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS
JUDGE; (EAST) FTC : E-COURT : KARKARDOOMA
COURT:DELHI.
SC No. 122/10
FIR No. 78/10
PS. Kalyan Puri
US. 302/34 IPC
Instituted on 03/09/10
Argued on 30/11/11
Decided on 13/12/11
State Vs. 1. Deepak Kumar S/o. Sh Murari Lal R/. H. No.
145B-18, Jhuggi Indira Camp, Kalyan Puri.
2. Ravi S/o. Sh. Nahu Rao R/o. E-28A, B-18/56,
Indira Camp, Kalyan Puri, Delhi.
JUDGMENT
1. In brief the case of the prosecution is that on 14.03.10 at 1.30/2.00 PM an information was received vide DD No. 17A in PS regarding the presence of a dead body on roadside of NH-
24. This information was given by PW19 Mukesh Kumar from his mobile No. 9910427963. On the basis of this DD Number, SI Raj Kumar( PW20) reached at the spot. At the spot he found a dead body of male with injuries on his chest. PW20 prepared rukka on DD entry and got FIR registered. In the meantime SHO Rajesh Kumar (PW23) reached at the spot. PW23 seized blood from the spot, bloodstained knife, fiber sheet and sleepers from the spot. Mobile of Spice was recovered from the pant of the deceased which was not charged. After charging it, there was a missed call FIR No. 78/10 1 page of 20 on it. The number of missed call was dailed and it was picked by Banwari Lal ( PW7) who told that this number is of his son Deepak. The dead body was identified by PW7 as of his son Deepak in LBS Hospital. On 15.03.10 PW7 made statement that his relative Raju ( PW1) had told him that on 13.03.10 he had seen Deepak( deceased) with accused Deepak, Ravi and JCLs Ajay and Vikas. IO PW23 recorded statement of Raju( PW1). Both the accused and JCLs Ajay and Vikas were searched in their house but were found absconding.
2. On 18.03.10 accused Deepak was arrested from his jhuggi/house on the identification of PW7. During interrogation accused Deepak made disclosure statement admitting his involvement in this crime. Accused Deepak got recovered weapon of offence i.e knife from Safeda Park near the spot. Accused further got recovered his clothes having bloodstains which he was wearing at the time of this incident. Thereafter the investigation of this case was marked to DIU, East District by order of DCP. On 16.04.10 investigation of this case was marked to PW18 Inspector Sunder Dev. On 10.06.10 accused Ravi and JCL Vikas came to the police and surrendered before District Investigation Unit( DIU). Father of accused Ravi told date of birth of his son as December,94 but failed to produce any document in support of that. Accused Ravi was apprehended with JCL Vikas. On 28.06.10 PW22 Inspector Ashwani Kumar collected age proof of accused Ravi and his age was found more than 18 years. Accused Ravi was in the custody of Juvenile Justice Board at that time. PW22 moved an application on 07.07.190 before JJB for declaring accused Ravi as major. By orders of the Principle Magistrate of JJB, accused Ravi was declared as major and was directed to be shifted to Tihar Jail. PW22 FIR No. 78/10 2 page of 20 prepared supplementary chargesheet against accused Ravi and filed it in the court.
3. During investigation, PW23 collected FSL result. After investigation, police filed chargesheet against both the accused for the commission of offence under Section 302/34 IPC.
4. Charge under Section 302 IPC was given to both the accused to which they pleaded not guilty and claimed trial.
5. To prove its case, prosecution examined 23 witnesses. PW1 Raju is the main prosecution witness on which whole prosecution case is based. He is a witness of last seen who had seen deceased Deepak on 13.03.10 at 8.00 PM at Rehri selling Chicken adjacent to park near Mother Dairy Booth, 9 Block Khichripur in the company of accused Deepak and Ravi and JCLs Vikas and Ajay, consuming beer. PW2 Preeti Jain, Principal, Nigam Prathiba Vidyalaya, Bhikam Singh Colony proved certificate regarding the age of Deepak as Ex. PW2/A. PW3 Dr. Adnan S.Khan, as per prosecution, had given dressing to injuries suffered by accused in this incident but he did not support prosecution. PW4 Dr. Vinay Kumar Singh, Specialist Forensic Medicine, LBS Hospital proved P/M report Ex.PW4/A and his report regarding injuries of accused Ravi as Ex.PW4/B. PW5 Ct. Manoj was a member of crime team. He proved photographs Ex.PW5/A1 to A7 and negative Ex. PW5/B1 to B12. PW6 Dr. K.G. Rajoriya, Junior Resident LBS Hospital conducted medical examination of accused Deepak. PW7 Banwari is father of the deceased. PW8 Ct. Dharmender Kumar accompanied first IO SI Raj Kumar on 18.03.10 and PW7 to the jhuggi of 18 Block, Kalyan Puri. He proved arrest memo and personal search memo of accused Deepak Ex. PW8/A and Ex.PW8/B, seizure memo Ex.PW8/C vide which knife was recovered at the instance FIR No. 78/10 3 page of 20 of accused Deepak was seized, sketch of knife Ex.PW8/D, seizure memo Ex. PW8/E vide which clothes of accused Deepak having blood stains recovered on his instance were seized. PW9 Inspector Sudhir Sharma got dead body of Deepak postmortemed. He proved form No. 25.35 as Ex. PW9/A, identification memo of dead body Ex.PW9/B, seizure memo Ex. PW9/C vide which two pulands and a sample seal given to him by doctor were seized. PW10 HC Sonu Kaushik Draftsman prepared scaled site plan Ex.PW10/A. PW11 ASI Virender Singh Thaka on 15.03.10 brought two pulandas given by him by doctor and handed over to IO. PW12 Ct. Satyavir Singh reached at the spot on 14.03.10. He took rukka given by SI Raj Kumar to PS and got FIR registered. PW13 Ct. Kiran Pal delivered copies of FIR in the houses of senior police officials and Ld. MM. PW14 Ct. Santosh on 10.05.10 took one sealed pulanda and one jar at Finger Prints Bureau Malviya Nagar. PW15 ASI Azad Singh proved disclosure statements of accused Ravi and JCL Vikas Ex.PW15A & B, pointing out memo of the spot Ex. PW15/C & D and pointing out memo of clinic of Dr. Adnan Ex. PW15/E. PW16 HC Gautam Soni was duty officer, he recorded FIR Ex. PW16/A, endorsement on rukka Ex. PW16/B and DD No. 17A Ex.PW16/C. PW17 Inspector Rajesh Sharma, Incharge Crime team reached at the spot. He got scene of crime photographed and prepared SOC report Ex.PW17/A. PW18 Inspector Sunder Dev also did investigation in this case. He proved version of JCL Vikas mark PW18/A and his apprehension memo mark PW18/B. He also proved version of accused Ravi as Ex. PW18/A, his apprehension memo Ex. PW18/B, personal search memo Ex. PW18/C. He also proved pointing out memo of clinic of Dr. Adnan by accused Ravi and JCL Vikas vide memo Ex.PW18/D. FIR No. 78/10 4 page of 20 PW19 Mahesh Kumar is a person who noticed a dead body lying on the road side of NH-24 and passed this information to the police from his mobile. PW20 was first police official who reached at the spot. He prepared rukka Ex. PW20/A, seizure memo Ex.PW20/B & C vide which blood lifted by SHO from two places was seized, seizure memo Ex. PW20/D vide which bloodstained knife was recovered from a distance of 15 meters from the dead body was taken into possession, seizure memo Ex. PW20/E& F vide which fiber sheets and sleepers were seized and disclosure statement of Deepak Ex. PW20/H. PW21 Dr Rajender Gupta Assistant Director Biology, FSL Rohini proved his report Ex.PW21/A and B. PW22 Inspector Ashwani Kumar also did part investigation in this case. He proved mark PW22/A of certificate from Raj Kumari, School Principal regarding the age of accused Ravi, photocopy of admission and withdrawal register of birth certificate of accused Ravi as mark PW22/B and PW22/C. PW23 SHO Inspector Rajesh Kumar did main investigation and proved site plan Ex. PW23/A.
6. On the basis of the incriminating evidence against accused, their statement were recorded under Section 313 Cr.P.C wherein they denied the entire prosecution evidence against them. Accused Deepak took the defence that father of deceased PW7 Banwari was of quarrelsome nature. PW7was from Sikhaligarh community which was dominating the area. He belongs to Valmiki Community and their's was the only house in that area. He was not having any relations with deceased Deepak and was falsely implicated in this case. PW2 Ravi took the defence that he being friend of accused Deepak was falsely implicated in this case. Accused Deepak in defence himself examined himself as DW1 after seeking permission of the court FIR No. 78/10 5 page of 20 moving an application under Section 315 Cr.P.C.
7. I have heard arguments of Sh. Mohd. Iqrar Ld. Addl. PP for the State and Ms. Saraswati Bhardwaj Ld. Defence Counsel for both accused and Sh. Mohd. Hasan, Ld. Amicus Curiae provided by the Court and have gone through the case file.
8. Ld. APP submitted that PW1 is a witness of last seen who had seen deceased in the company of both these accused and their two associates ( JCL) near Rehri drinking beer. It is stated that statement of PW1 is consistent and there is no doubt to doubt his testimony. It is stated that as per P/M report Ex. PW4/ A time of death of deceased come to be between 7.30 PM to 3.30 AM on the intervening night of 12/14.03.10. It is stated that weapon of offence i.e. knife, was recovered at the instance of accused Deepak from the spot and further bloodstained pant which accused Deepak was wearing at the time of this incident was found containing human blood of " O Group". It is stated that the same " O Group" was found on the pant and half pant of deceased seized by doctor after his postmortem. It is stated that prosecution is able to prove chain of circumstances and bring home guilt of accused persons.
9. The accused were represented by Ms. Saraswati Bhardwaj, Ld. Defence counsel. On 16.12.2010, in the interest of justice, Mohd. Hasan, Amicus Curiae was also provided to the accused persons. Ld. Defence counsel and Amicus Curiae has raised following contentions and also relied upon following judgments;-
1. PW1 is the only witness who is stated to have seen accused with the deceased on 13.03.10 at 8 PM. He is an FIR No. 78/10 6 page of 20 interested witness and his testimony does not inspire confidence.
2. As per PW1 on 15.03.10, Banwari (PW7) told him about the recovery of dead body of Deepak but as per PW7 he told PW1 about the recovery of body on 14.03.10.
3. PW1 was close relatives of the deceased, he failed to give satisfactory reply that when he saw deceased drinking with other accused then why he did not stop him.
4. As per PW4 there was no smell of alcohol in the stomach of the deceased. It falsify the statement of PW1 that he saw deceased drinking with the accused. Even PW7 admitted in his cross that his son did not use to drink.
5. Chain of circumstances gets broken as the Rehri owner is not examined nor any site plan has been prepared. Even the name of Rehri owner has been disclosed by any witness.
6. PW3 Dr has not supported the prosecution case in any manner.
7. Statements of PW7, PW8 and IO PW20 are contradictory regarding the arrest of accused Deepak.
8. No public witness was joined at the time of recovery of two knives from the possession of accused Deepak. Recovery was planted. No finger prints of accused were found on these knives.
1.2011[3] JCC 1586 Ram Chander @ Ganju Vs. State of Delhi.
2.2011[3] JCC 1532 Rahisa Vs. State Of The NCT of Delhi
10. The case is primarily based on circumstantial evidence of last seen. PW1 Raju who is uncle ( husband of sister of mother of deceased) deposed that he is working as a painter. On 13.3.10 at about 8 p.m when he was returning to his house FIR No. 78/10 7 page of 20 from his work, he saw both accused and deceased Deepak standing near a rehri selling chicken adjacent to park near mother diary booth at 9 Block Khichri Pur. JCL Vikas and Ajay were also with them. He wanted to talk with deceased Deepak but then he thought that he will complain to his father Banwari Lal. He went to his house, took dinner and went to sleep. Next day he woke up in the morning and went to his work. On 15.3.10 in the evening Banwari Lal told him that the dead body of Deepak has been recovered from 8 Block, Khichri Pur, near CNG Petrol Pump. He told Banwari Lal that he had seen deceased Deepak in the company of both accused and two JCLs on 13.03.10 at 8 PM. He alongwith Banwari Lal went to the house of accused Deepak, his father Murari told them that Deepak is not available in the house and is absent since the night of 13.3.10. Thereafter they went to the house of JCLs Vikas and Ajay. From their houses they came to know that they were also not available in their houses. They also went to the house of Kalu and came to know that he is also not available in his house. They had inquired from the families of both the accused and JCLs Vikas and Ajay if they had lodged any complaint regarding their missing in the PS, they were told that no such complaint has been lodged.
11. PW7 Banwari Lal is father of the deceased. He deposed that 8-9 months back on 13.03.10 his son Deepak left his house at about 6.00 PM and did not return. His wife made a complaint in this regard in PS. When deceased Deepak left the house he was carrying a mobile phone of black colour having SIM on his name. On 14.03.10 he kept on calling on mobile phone which his son was carrying but no one was picking it. In the evening he received a call from the PS and he was called there. He was shown a mobile phone in the PS and he identified FIR No. 78/10 8 page of 20 it to be the same which was with his son Deepak. He was told that Deepak has been murdered. He went to LBS hospital and identified his son there. On 15.03.010 after postmortem at 8 PM, Raju ( PW1) met him and told him that he had seen Deepak on the night of 13.03.10 near Mother Dairy, Khichri Pur along with both accused and JCLs Vikas and Ajay. He along with Raju went to the house of Deepak and his father Murari met them and told them that Deepak( accused) has not come to the house since 13.03.10.
12. PW19 Mahesh Kumar was first person to inform the police station about the presence of a dead body on the road side of NH-24. On 14.03.10 at about 1.30-2.00 PM he was going to Ghazipur Bus Stand, some road side labourers told him that a person is lying nearby. He noticed a young boy lying there and from his mobile he made a call at 100 number. On this information DD No.17A was lodged in PS which was assigned to PW20 SI Raj Kumar who reached at the spot. SHO PW23 Rajesh Kumar also reached there. Mobile of Spice company was recovered from the dead body. The same was discharged and after charging it , a missed call was found on it. As per IO PW23, the number of missed call was dailed and it was picked by Banwari Lal ( PW7) who told that this number is of his son Deepak ( deceased). PW7 identified dead body of his son and mobile phone in LBS Hospital. On 15.03.10, PW7 made statement that his relative Raju ( PW1) has told him that on 13.03.10 he had seen his son Deepak (deceased) with accused Deepak, Ravi and JCLs Ajay and Vikas. On 18.03.10 accused Deepak was arrested from his house. During interrogation he made disclosure statement, in pursuant to his disclosure statement he got recovered a knife stated to be a weapon of FIR No. 78/10 9 page of 20 offence from Safeda Park near the spot and he also got recovered his jeans pant having bloodstained which he was wearing at the time of incident. Second accused in this case Ravi surrendered before DIU on 10.06.10 was arrested by PW18 Inspector Sunder Dev.
13. Ex. PW4/A is the postmortem of deceased Deepak as per which following external injuries were found:-.
1. Incised stab wound 3.4 x1.9 cms, obliquely placed over outer end acute, margin sharp and regular, chest cavity deep present over left side of chest 1.7 cms from midline and 145.8 cms above heel.
2. Incised wound 5.3 x 1.6 cms muscle deep obliquely placed upper end acute, margins sharp and regular. Present over front of right forearm directed below upward 23.5 cms from elbow. It is 1.8 cm from wrist joint.
3. Abrasion 8.5 x 7cms present front of left feet, 7cm above toe.
4. Incised wound 5 x 2 cms present 25.5 cms below tip of shoulder and right side bevelling present, muscle deep, margin sharp and regular 8.5 cms away from midline and 147cms above heel directed from left to right.
5. Abrasion 16x 9 cms present over back for right forearm.
Cause of death was hemorrhagic shock consequetive upon incised wound to the chest. Injury No.1 is sufficient to cause death in ordinary course of nature. Time since death was about 36-44 hours Ex.PW4/B is report regarding the nature of injury on the person of accused Ravi. As per report,three injuries were found on the person of accused Ravi. As per opinion, no definite FIR No. 78/10 10 page of 20 opinion regarding duration and nature of weapon can be given.
14. First and foremost contention vehemently urged by Ld. Defence counsel is that case of the prosecution is based on circumstantial evidence and law is settled that prosecution must establish the motive with accused to commit this crime. It is stated that in the present case prosecution has failed to establish motive. I agree with this contention of Ld. Defence counsel. Proposition of law is settled that in case of circumstantial evidence, motive is very important, unlike a case of direct evidence where it is not so important. Reliance is placed upon Wakkar & another Vs. State of Uttar Pradesh (2011)3SCC
306. Reliance is also placed upon 1994 AIR(SC) 2585 Tarsem Kumar Vs. Delhi Administrative where Apex Court has observed as follows:-
" Normally, there is a motive behind every criminal act and that is why investigating agency as well as the court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the material produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive FIR No. 78/10 11 page of 20 for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the prosecution."
15. Ld. Defence counsel has relied upon decision of Apex Court in Rahisa(Supra) wherein Delhi High Court has discussed the importance of motive in the cases based upon circumstantial evidence.
16. Ld. APP submitted that firstly it is not essential that in every case based on circumstantial evidence prosecution is required to prove motive with the accused persons to commit the crime. It is stated that sometimes the motive to kill amongst accused persons develops at the spot. It is stated that in the present case motive with both the accused behind the commission of this crime is reflected in their disclosure statements wherein they have mentioned that after consuming beer and eating chicken on 13.03.10 they reached Safeda Park near NH-24; there they robbed a person with Rs.2000/-; deceased took Rs.1,000/- as his share and Rs. 1000/- was given to them; due to giving less share to them, an altercation took place between deceased and them; deceased Deepak took out a knife and accused Deepak also took out a knife, accused Ravi and JCLs Vikas and Ajay try to make accused understand but deceased started waiving the knife which hit accused Deepak,accused Ravi and JCL Vikas; accused Deepak attacked FIR No. 78/10 12 page of 20 deceased with his knife and JCL Ajay also attacked deceased with knife as a result of which deceased fell down and they all ran away from there.
17. As already discussed, PW1 Raju is the only witness of last seen when he saw deceased in the company of both accused they were drinking beer standing beside Rehri selling Chicken. Beyond this statement PW1 has not spoken anything else. From this it is apparent that there was no bickering between deceased and accused persons.
18. The said rehriwala on whose rehri deceased and accused were drinking bear and eating chicken has also not been examined. Probably he could have thrown some light on the conversation which had taken place between accused and deceased.
19. To establish the motive, the prosecution has relied upon the disclosure statement of accused Deepak as Ex. PW20/ H and of Ravi Ex.PW8/A. The disclosure statements of accused cannot be allowed by prosecution to be used against accused persons to establish the motive with them behind the commission of this crime. Confession made by accused can be used against them only under the purview of Section 27 of the Indian Evidence Act.
20. To support theory of motive, propagated by the prosecution no other evidence has come on record. It is not the case of the prosecution if any complaint of alleged robbery in Safeda park on 13.03.10 was lodged in police station or any robbed article was recovered either from the possession of deceased or from any of accused persons. Accordingly it is held that prosecution has failed to establish any motive with the accused to commit this crime.
FIR No. 78/10 13 page of 2021. Ld. Defence counsel has assailed testimony of PW1 stating that he being relative of the deceased is an interested witness. It is stated that he being close relative of the deceased has failed to give any satisfactory reply that when he saw deceased drinking with accused then why he did not stop deceased doing so. It is stated that as per PW1 on 15.03.10, PW7 told him about the recovery of dead body of his son Deepak but as per PW7 he told PW1 about the recovery of dead body on 14.03.10. It is stated that as per PW7 (father of the deceased), deceased did not used to drink but as per PW1 he saw deceased drinking with accused. It is stated that even as per PW4( doctor) who conducted postmortem there was no smell of alcohol in the stomach of the deceased. It is stated that all these contradictions prove that PW1 was introduced by prosecution as witness of last seen to solve this blind case and to falsely implicate accused persons due to previous enmity.
22. Reliance is also placed upon Surinder Vs. State of Punjab(2003) 10 SCC 26 wherein on the issue of credibility of related witnesses the Apex Court has observed as follow:
"10..... Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze the evidence to find out whether it is cogent and credible.
FIR No. 78/10 14 page of 20
13.we may also observe that the ground that
the witness being a close relative and
consequently being a partisan witness,
should not be relied upon, has no
substance...".
23. Deceased was 17-18 years of age. As per PW1 when he saw deceased drinking bear in the company of accused persons he wanted to talk with the deceased but then he thought that he will complain to his father and due to this reason he went to his house. If PW1 in stead of confronting and admonishing the deceased then and there, decided to tell the father of the deceased about all this, it was not unnatural conduct on his part. As deceased was grown up kid and every prudent man will think in the same manner as thought and done by PW1.
24. Other contention raised by Ld. Defence counsel is that PW1 did not inform PW7 immediately about the conduct of deceased as allegedly seen by him on 13.03.10 at 8.00 PM and no reasonable explanation in this regard has come from PW1. It was not such a major thing which may have compelled PW1 immediately to complain to PW7 about the conduct of the deceased. PW1 is a painter. As per him, next day he woke up in the morning and went to his work. It is apparent from the statement of PW1 that in stead of admonishing deceased then and there or complaining PW7 immediately he chose to complain to PW7 in near future. In a particular situation every one behaves in a different manner. The human behaviour in a particular circumstance can be generalized . I do not find any abnormality in this conduct of PW1 rendering his testimony unbelievable.
25. As per PW1 it was on 15.03.10 in the evening PW7 FIR No. 78/10 15 page of 20 told him that dead body of Deepak has been recovered. As per PW7, he does not know who called Raju (PW1) in the hospital. Neither he had given any information to Raju regarding the murder of Deepak nor Raju was called by him in the hospital. As per PW1, distance between his house and house of deceased is just of 2-3 minutes. Moreover, PW1 and PW7 are close relatives. Being close relatives if PW1 came to know about the murder of deceased, even if not told by PW7, is not a strange fact which may have created shadow of doubt on his credibility.
26. As pointed out by Ld. Defence counsel, as per PW4 no smell of alcohol was found in the stomach of the deceased. It is stated that P/M report contradicts statement of PW1 that he saw deceased drinking in the company of accused. As per PW1, he saw deceased and accused standing near rehri selling chicken, all were consuming liquor as he had seen bottle of beer in the hands of accused Deepak. PW1 has nowhere stated that deceased was heavily drunk. Statement of PW1 is also silent regarding the quantity of beer consumed by the deceased. Beer has less alcoholic contents. Even if deceased may have consumed some beer, it is quite possible that at the time of postmortem, there was no smell of alcohol in the stomach. I do not agree with this contention that P/M report is in contradiction to the statement of PW1.
27. In view of aforesaid discussions, I find no reason to disbelieve the statement of PW1 that on 13.03.10 at 8 PM he saw both the accused with two JCLs in the company of the deceased at 9 Block Khichripur. Statement of PW1 is found to be credible and trustworthy. As per postmortem report, time of death of accused is between 7.30 PM to 3.30 AM on the intervening night of 13/14.03.10. This is the only evidence which prosecution FIR No. 78/10 16 page of 20 has been able to prove against the accused persons. In my view, prosecution has failed to establish chain of circumstances leading to death of the deceased and only evidence proved by prosecution is wholly insufficient to give finding of guilt of accused persons.
28. The other evidence produced by prosecution is recovery of bloodstained paint of accused Deepak in pursuant to his disclosure statement. Ex.PW20/A & B is FSL report. As per which human blood of "o" group was found on the said pant. The blood group of deceased was also " o" group, found on his pant and half pant seized by doctor in the hospital at the time of his postmortem. But recovery of bloodstained pant from accused could not be proved by prosecution satisfactorily. As per IO PW23, accused in pursuant to his disclosure statement led police party to the spot and got recovered a knife stated to be weapon of offence. Accused Deepak was again interrogated and thereafter he got recovered a jeans pant of blue colour having bloodstains on it, from his house. Ex. PW20/H is only disclosure statement of accused Deepak where there is no mention that he can get his pant recovered which he was wearing at the time of incident. PW20 is other witness of recovery of this pant examined by prosecution He supported statement of IO PW23. During cross, he stated that at that time in the jhuggi of the accused no effort was made by them to join any public witness or neighbourer as Banwari Lal was with them. As per PW23, there he asked some public witness to join the investigation at the time of arrest of Deepak but none of them agreed. However, testimony of PW23 is silent if any effort was made to join public witness at the time of recovery of this pant from the house of accused. Banwari Lal PW7 is the father of the deceased, in addition to him, it is FIR No. 78/10 17 page of 20 apparent from the statement of PW23 that no effort was made to join any public witness. Moreover, disclosure statement Ex. PW20/H of accused Deepak is silent about the recovery of pant from his house. Because of all these reasons, recovery of pant at the instance of accused Deepak from his house becomes doubtful. Moreover, FSL report is silent that blood of "o" group found on the pant alleged to have been recovered at the instance of accused Deepak and on the clothes of deceased was of the same person.
29. As per IO PW23, the knife was recovered from the spot lying at distance of 15 meters from the body. Thereafter in pursuant to his disclosure Ex.PW20/H another knife was got recovered by accused Deepak from near the spot. As per IO PW23 first knife recovered from the spot was bloodstained and to preserve the finger prints it was put in a plastic jar and sealed with seal. The entire prosecution case is silent if any effort was made to take chance prints from these knives. Even no opinion of doctor who conducted postmortem i.e. PW4 was taken that the alleged knife, recovered at the instance of accused, could be the weapon of offence in this case.
30. Law is settled that in case based on circumstantial evidence to convict the accused, evidence produced by prosecution must satisfy some tests. Reliance is placed upon 2007(2)RCR ( Criminal) State of Goa Vs. Sanjay Thakran wherein Apex Court has observed that in case based on circumstantial evidence, to convict the accused, such evidence must satisfy the following tests:-
(1). The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;FIR No. 78/10 18 page of 20
2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3. The circumstances, 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
4. 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.
5. Suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence.
31. Coming to the evidence which is taken as proved by the prosecution, PW1 has nowhere stated if he found any tension between deceased and both the accused, when he saw them together. Prosecution has not produced any witness who may have seen deceased walking in the company of both accused and JCLs towards the spot i.e. Safeda Park adjoining NH-24. P/M report Ex.PW4/A has not given any specific time of death. It has given time since death as 36-44 hours, according to which death could have occurred between 7.30 PM on 13.03.10 to 3.30 AM on 14.03.10. Though there is variation of 8 hours in the time of death but even if time of death is taken as to be supporting the prosecution case even then the circumstances proved by prosecution are insufficient to constitute a complete chain. In addition to these circumstances, prosecution has failed to prove any other evidence against the accused, to connect them with this crime.
FIR No. 78/10 19 page of 20
32. In view of aforesaid reasons, I hold that prosecution has failed to prove its case against both the accused beyond reasonable doubt. Giving benefit of doubt, both the accused are acquitted from the offence punishable under Section 302/34 IPC.
File be consigned to the Record Room.
Announced in the open Court ( SANJAY GARG )
on 13.12.2011 Addl. Sessions Judge (East)
(FTC), E-Court : Karkardooma
Courts: Delhi
FIR No. 78/10 20 page of 20