Delhi District Court
Fir No. 467/2014 State vs . Vikas Khari & Ors. Page No.1 on 30 January, 2023
DLNW010002532014
Presented on : 01-11-2014
Registered on : 05-12-2014
Decided on : 30-01-2023
Duration : 8 years, 2 month, 29 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
SC/51770/2016
Annexure 'A' (list of prosecution witnesses)
Annexure 'B' (list of exhibits)
STATE
Vs.
1. Vikas Khari
S/o Sh. Bhram Pal
R/o House No. A-2/172B,
Keshav Puram, Delhi
Also at
House NO. 266, Ram Pura,
Rumali Wali Gali, Delhi
2. Prem Giri
S/o Sh. Om Prakash
R/o House No. 542, Gali No. 3,
Saini Wali Gali, School Road,
Rampura, Delhi
FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.1
Also at
Village Kirat Pur Parewa
(Madhi), PS Farid Pur,
District Bareli, U.P.
3. Suraj Pandey
S/o Sh. Deena Pandey
R/o House No. 451/10, Chander Quarter
Rampura, Delhi
Also at
Village Bakhra, PS Taraiya,
District Mujaffarpur, Bihar
FIR No. : 467/2014
Police Station : Keshav Puram
Under Sections : 302/34 IPC
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APP for State : Sh. K.D. Pachauri
Advocate/LAC for accused Vikas Khari : Sh. Ashish Dahiya
Advocate for accused Prem Giri : Sh. Anuj Soni
Advocate for accused Suraj Pandey : Sh. J.K. Sharma, Sh. Jitin
Kumar and Sh. Rahul Chaudhary
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JUDGMENT
(Delivered on 30.01.2023)
1. The case of prosecution in brief is that on 04.08.2014, at 12.15am, on receipt of DD no. 2PP IO/SI Manohar alongwith Ct. Dharamraj and Ct. Sanjay reached at the spot i.e. road in front of house no. 3392/246 Vishram Nagar, Tri Nagar Delhi. At the spot FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.2 police found blood splattered on the road and on local inquiry it was found that one Naveen Saini had called the PCR on finding an unknown Injured person and PCR had already shifted the injured. IO informed the control room and called crime team. The crime team led by SI Naresh Pal arrived at spot and inspected and photographed the spot. IO then lifted the exhibits i.e. blood, blood stained earth and earth control and seized the same after making a pulanda. IO then visited BJRM Hospital where injured Ajay was under treatment. At the Hospital IO recorded the statement of HC Kishan Lal, the PCR official who had shifted the injured to hospital. On statement of HC Kishan Lal IO prepared Rukka and got the FIR registered u/S 307/34 IPC. After that IO prepared the site plan at the instance of Naveen Soni and recorded his statement. At the spot on careful inspection IO found one blood stained button of shirt and a piece of cloth which he seized after making pulanda and brought the case property to PS and deposited in Malkhana. Injured Ajay succumbed to injuries at 4.30 am.
2. On the same date IO received a secret information that some boys had meal near SDM Park on 03.08.14 and out of those boys two are sitting in Mastana Park, therefore, IO alongwith staff and the secret informer went to Mastana Park where on identification of secret informer IO apprehended accused Prem Giri and Suraj Pandey. On strict interrogation they confessed the commission of crime that they knew deceased Ajay and one Vikas and Vikas had enmity with one Sumit Bhadana. As Ajay used to tell all the information of Vikas to Sumit Bhadana, Vikas planned to kill Ajay FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.3 and on 03.08.2014 they alongwith Vikas, Madan, Suraj, Deepak and Sameer gathered at SDM park and Vikas called Ajay at park and after taking meal they took Ajay to Gali no. 246 Vishram Nagar and killed him.
3. On the basis of disclosure accused Prem Giri and Suraj were arrested and their detailed disclosure were recorded. After that accused Suraj Pandey took police to his house and handed over his blue jeans pants and light blue T Shirt, worn by him at the time of crime. In the Pants of Suraj Pandey there were light blood spot at the lower end of pants. IO seized his clothes. Similarly accused Prem Giri handed over his blue jeans pants having blood spot which was also seized. Thereafter Prem Giri and Suraj Pandey led police to scene of crime and pointed the spot.
4. On next day after taking police remand detailed interrogation was done and Prem Giri and Suraj Pandey disclosed about other involved persons. Meanwhile deceased was examined post mortem. Thereafter, during PC, on pointing of accused Prem Giri and Suraj pandey CCLs MT, D and M were apprehended and on their instance chopper/'meat Cutter' was recovered and they led to place i.e. Tea Stall where they had meal and drinks. The owner of Tea Stall identified that the accused persons and CCL had taken food from his shop on the night of incident. After that on secret information and on identification of accused Suraj and Prem accused Vikas Khari was arrested and at his instance his blood stained clothes and shoes were recovered. The opinion on the meat cutter by doctor was that FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.4 injuries no. 3 to 6 and 8 to 17 in PM report were cause by that weapon.
5. Thereafter IO confirmed the location of accused persons from CDR that all the accused were in the area of Rampura near scene of crime and were in constant touch with each other. IO concluded the investigation that accused Vikas, Suraj and Prem alongwith three CCLs committed the murder of Ajay and chargesheet accused persons u/S 302/34 IPC. The exhibits were sent to FSL and its report with CDR of mobile phones and location chart were filed with supplementary chargesheet.
CHARGES
6. Vide order dated 08.01.2015 the court settled the charges for offence u/S 302/34 IPC against all the accused persons. To the charges accused persons pleaded not guilty and claimed trial.
EVIDENCE 7.1 Pw1 SI Naresh Pal proved proved the crime team report Ex.Pw1/B. 7.2 Pw2 Ct. Sandeep proved the photographs of the spot Ex.Pw2/B and its CD Ex.Pw2/C. 7.3 Pw3 Inspector Manohar lal proved the scaled site plan FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.5 Ex.Pw3/B. 7.4 Pw4 Dr. Bhim Singh proved the post mortem report Ex.Pw4/A. He also proved the sketch Ex.Pw4/B of the chopper, seized in this case and sent to him for examination and the opinion Ex.Pw4/C that injuries no. 3-6 and 8-17 were caused by the chopper could not be ruled out. He also identified the chopper Ex.P1.
7.5 Pw5 Raj Kumar is the tea seller. He was brought to prove that accused persons had come to his shop on 03.08.2014 and consumed liquor and he identified them, however, he was declared hostile as nothing of such sort was deposed by him. Pw5 was cross examined but nothing material came out.
7.6 Pw6 Pawan was summoned to prove the CAF of sim issued in the name of one Mamta but his examination was not completed.
7.7 Pw7 Dr. Anurag Jain proved the orthopedic injuries on MLC of deceased as Ex.Pw7/A. 7.8 Pw8 Naveen Kumar Verma had called at 100 number. He deposed that when he was returning from factory at the apot he noticed a boy lying on the road in pool of blood and he called at 100 number after which PCR took injured to hospital. He also deposed arrival of chauki in charge Shanti Nagar and he particiopated preparation of crime team report and site plan.
FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.6 7.9 Pw9 Zamil Ahmed is a black smith. He was summoned to prove the purchase of chopper Ex.P1 form his shop and to identify the person who purchased it. Zamil Ahmed was declared hostile as he identified none. He was cross examined by state but nothing material came out.
7.10 Pw10 Mohd. Sajid is the one from whose house CCL 'M' got recovered the chopper. He deposed that around August 2014 CCL 'M' had called him and aksed to meet at Bansal Nursing home Tri Nagar Near Jul Bagh. He had reached there where CCL M handed him a polythene bag. He did not see what was inside polythene as CCL M had told him that it is containing books and copies. He kept that bag hanged on a hook. After 2-3 days police brought CCL D and M to his house and asked for polythene bag and he handed the bag to police. Pw10 deposed that he did not check the contents of the bag at that time or before that and police took him to PS where he was kept in a separate room for some time then released. As Pw10 did not depose about chopper in that bag he was declared hostile and was cross examined. However, nothing material came out. Pw10, however, admitted his signatures on sketch of the chopper Ex.Pw10/A and its seizure Ex.Pw10/B but deposed that polythene bag was not opened in his presence and when he signed those documents no other witness was present there.
7.11 Pw11 Mithilesh is the owner of SIM number 9971174026 and he deposed that this SIM was given by his brother Gulesh to his friend Sajid.
FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.7 7.12 Pw12 HC Dharamveer proved the FIR Ex.Pw12/A, its endorsement Ex.Pw12/B, DD no. 5 of recording of FIR Ex.Pw12/C and the certificate u/S 65B IEA Ex.Pw12/D. He also proved the DD no.6 regarding information of injured declared dead as Ex.Pw12/E. 7.13 Pw13. Ct. Madan Lal proved DD no. 2PP regarding information of one injured lying in pool of blood as Ex.Pw13/B. 7.14 Pw14 Ct. Dinesh deposed that on 30.092014, on directions of IO, he took a sealed pulanda containing weapon of offence vide RC no. 70/21/14 and deposited the same in hospital against acknowledgment.
7.15 Pw15 Rajeev Sharda Nodal Officer Reliance communication ltd proved the CAF of mobile no. 9350716393, which was issued to one Raman, as Ex.Pw15/A, its KYC document Ex.Pw15/B and its CDR alongwith location chart from 01.06.2014 to 05.06.2014 Ex.Pw15/C. He also proved the CAF of mobile no. 8287593149, which was issued to one Bachchu, as Ex.Pw15/D, its KYC document Ex.Pw15/E and its CDR alongwith location chart from 01.06.2014 to 05.06.2014 Ex.Pw15/F. He also produced the certificate u/S 65B IEA, Ex.Pw15/G, for proving those documents.
7.16 Pw16 HC Manoj is the MHC(M) he proved following entries in register no. 19 relevant to this case:
FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.8 • no. 2727 dated 4.8.14 of depositing five sealed parcels Ex.Pw16/A, • no. 2728 dated 4.8.14 of depositing two sealed parcels Ex.Pw16/B, • no. 2736 dated 6.8.14 of parcel containing clothes and vicera of deceased Ex.Pw16/C, • no. 2737 dated 6.8.14 of parcel containing cassette Ex.Pw16/D, • no.2738 dated 6.8.14 of parcel containing weapon Ex.Pw16/E, • no. 2743 dated 8.8.14 of parcel containing pair of shoes of accused Vikas Ex.Pw16/G. He also proved the RC no 69/21/14 of sending the weapon of offence to the doctor on 29.09.2014 Ex.Pw16/H. However, on that date the parcel was not deposited so it was brought back in Malkhana and sent again vide RC no. 70/21/14 against receipt on RC Ex.Pw16/J. He also proved the return of this parcel after obtaining the opinion and its endorsement in Entry no. 2738 EX.Pw16/E. Pw16 also proved the sending of other parcels containing the exhibits and case properties to FSL vide RC numbers.79/21/14 and 80/21/14 and their deposit with FSL against acknowledgment. RCs are Ex.Pw16/K and L respectively and the acknowledgment is Ex.Pw16/M. FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.9 7.17 Pw17 Dr. Gopal Krishna was casualty officer in BJRM Hospital under whose supervision injured was medically examined and managed. He proved the injuries recorded in MLC Ex.Pw7/A. 7.18 Pw18 Ashok Yadav and Pw19 Satish Yadav proved the dead body identification memo EX.Pw18/A and Ex.Pw19/A respectively.
7.19 Pw20 Dr. Narender Kumar was on emergency duty at BJRM hospital on the night of incident and had examined injured Ajay. He proved his notes and observations on MLC Ex.Pw7/A. 7.20 Pw21. HC Kishan Lal was PCR van commander who on receipt of information reached at spot and shifted the injured to hospiatl. He deposed that caller Naveem met his at spot and told him that injured had informed his that 4-5 persons had caused injuries to him with knife. He also deposed that on the way to hospital injured had regained his consciousness and told his name that he is Ajay and he was injured with knife by 4-5 persons. IO had registered the FIR on his statement and he proved his statement Ex.Pw21/A. 7.21 Pw22 CT. Raj Kumar proved the seizure of video cassette containing videography of PM of deceased as Ex.Pw22/A and proved the video cassette Ex.Pw22/P1.
FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.10 7.22 Pw23 CT. Sanjay had went to the spot with IO on receipt of first information DD no. 3PP. He described the spot that there was blood which was photographed by crime team he also deposed about lifting of exhibits i.e. blood, blood stained stone and earth control, from spot and proved its seizure memo Ex.Pw23/A. He had accompanied IO to hospital where IO recorded statement of Pw21 after which he took tehrir to PS for registration of FIR and returned back to spot with tehrir and copy of FIR and handed the same to IO.
He also deposed about blood stained button and small piece of cloth lying at spot and proved its seizure memo EX.Pw23/B. He proved the button Ex.Pw23/P1 and the piece of cloth Ex.Pw23/P2.
7.23 Pw24 Ct. Sanjay had joined the investigation on 04.08.2014 when he alongwith IO and other police officials apprehended accused Prem Giri and Suraj Pandey. He proved their arrest memos Ex.Pw24/A and Ex.Pw24/B respectively. He also proved their personal search memo Ex.Pw24/C and D respectively. Pw24 deposed that accused Prem Giri and Suraj pointed out the place of offence and proved the pointing out memo Ex.Pw24/E. He also proved their disclosure statements Ex.Pw24/F and G respectively.
Pw24 also proved the seizure of blood stained clothes (T-shirt and Jeans pants) of accused Suraj Pandey vide memo Ex.Pw24/H, of blood stained jeans pants Prem Giri Ex.Pw24/J and identified the clothes as Ex.Pw24/P1 and Ex.Pw24/P2 respectively.
7.24 Pw25 Shishir Malhotra Nodal Officer Aircel Ltd., proved FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.11 the CAF of mobile no. 7503397170, which was issued to one Pawan, as Ex.Pw25/A, its KYC document Mark A1 and its CDR alongwith location chart from 01.06.2014 to 30.08.2014 Ex.Pw25/B and Ex.Pw25/C respectively. He also produced the certificate u/S 65B IEA, Ex.Pw25/D, for proving those documents.
7.25 Pw26 Israr Babu Nodal Officer Vodafone proved the CAF of mobile no. 8376865303, which was issued to accused Vikas Khari, as Ex.Pw26/A, its KYC document/DL Ex.Pw26/B and its CDR alongwith location chart from 01.06.2014 to 30.08.2014 Ex.Pw26/C and Ex.Pw25/D respectively. He also produced the certificate u/S 65B IEA, Ex.Pw25/E, for proving those documents.
7.26 Pw27 Mukul Gupta Nodal Officer Sistema Shyam Tele Service Ltd. proved the CAF of mobile no. 9136319806, which was issued to one Jeet Prakash Giri, as Ex.Pw27/A, its KYC documents Ex.Pw27/B and C and its CDR alongwith location chart from 01.06.2014 to 30.08.2014 Ex.Pw27/D and Ex.Pw25/E respectively. He also produced the certificate u/S 65B IEA, Ex.Pw25/F, for proving those documents.
He also proved the CAF of mobile no. 9136207363, which was issued to one Kameshwar Shah, as Ex.Pw27/A1, its KYC document Ex.Pw27/B1 and its CDR alongwith location chart from 01.06.2014 to 30.08.2014 Ex.Pw27/C1 and Ex.Pw27/D1 respectively. He also produced the certificate u/S 65B IEA, Ex.Pw25/E, for proving those documents.
FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.12 7.27 Pw28 Jeet Prakash Giri is the owner of sim number 9136319806 and he deposed that his brother also used to use this phone however he was not certain if on the date of incident it was used by his brother i.e. Prem Giri. He was declared hostile on this point however he refused to have said to IO that the phone was with accused Prem Giri on the date of incident.
7.28 Pw29 Chander Shekhar Nodal Officer Bharti Airtel Ltd. proved the CAF of mobile no. 8527983389, which was issued to one Nakul Koshy, as Ex.Pw29/A, its KYC documents Ex.Pw29/B and its CDR from 01.06.2014 to 30.08.2014 Ex.Pw29/C. He also proved the CAF of mobile no. 9311619944, which was issued to one Naveen Kumar Verma, as Ex.Pw29/A1, its KYC document Ex.Pw29/B1 and its CDR from 01.06.2014 to 30.08.2014 Ex.Pw29/C1.
He also proved the CAF of mobile no. 9971174026, which was issued to one Mithilesh Kumar, as Ex.Pw29/A2, its KYC document Ex.Pw29/B2 and its CDR from 01.06.2014 to 30.08.2014 Ex.Pw29/C2. He proved the location chart of these mobile numbers for relevant period as Ex.Pw29/D. He also produced the certificate u/S 65B IEA, Ex.Pw29/E, for proving those documents.
7.29 Pw30 Ct. Virender Singh had joined the investigation in the evening of 06.08.2014 with IO and other members of investigation FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.13 when the the team at instance of accused Suraj Pandey and Prem Giri, apprehended CCL 'MT @ S' vide memo Ex.Pw30/A, thereafter on the instance of accused Prem, Suraj and the CCL 'MT @ S' they apprehended CCL 'D @ M' vide memo Ex.Pw30/B. After that at instance of accused Prem and Suraj and CCL 'MT' and 'D' they apprehended CCL 'M' vide Memo Ex.Pw30/C. CCL 'M' and 'D' had disclosed about location of the weapon of offence 'Daw' i.e. Chopper' and at their instance it was recovered and Pw30 proved its sketch Ex.Pw10/A and seizure Ex.Pw10/B. Pw30 also proved the pointing out memo of spot made at the instance of CCLs, Ex.Pw30/D and of the tea shop where they all had meal and drinks with deceased, Ex.Pw30/F. 7.30 Pw31 HC Jagjeet Singh, Pw34 HC Prem Ram and Pw36 HC Surender Kumar were also with IO and other police officials, including Pw30, on 06.08.2014 and they deposed on the line of Pw30.
7.31 Pw32. Dr. Ruchi Sharma Chemical Examiner, Biology Division, FSL proved the biological report and serological report EX.Pw32/A and Ex.Pw32/B respectively. She also identified and proved the following exhibits:
• cotton wool swab having blood of deceased Ex.Pw32/P1, • blood stained concrete material Ex.Pw32/P2, • concrete material (earth control) Ex.Pw32/P3, FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.14 • T shirt and Jeans pants (recovered from Suraj Pandey) Ex.Pw24/P1, • Jeans Pants (recovered from Prem Giri) Ex.Pw24/P2, • blood stained clothes of deceased, Ex.Pw32/P4, • brown color piece of cloth having blood Ex.Pw23/P2, • blood stained chopper Ex.P1, • Pants and shirt of accused Vikas Khari having bllod on pants Ex.Pw37/P1, • pair of shoes having blood Ex.Pw40/P1.
As per report there was no blood detected on Ex.Pw24/P1 and Ex.Pw24/P2 and blood group 'A' was identified only on jeans pants of deceased Ajay i.e. Ex.Pw32/P4. On all the exhibits where blood was detected it was of human origin.
7.32 Pw33 Dr. Adesh Kumar proved the opinion that on examination, metallic poison, ethyl and methyl alcohol, cyanide, phosphide, etc were not detected in exhibits 1A, 1B and 1C i.e. viscera of deceased.
7.33 Pw35 Ct Mehar Singh had gone to hospital with IO when deceased was examined post mortem and he proved seizure memo of exhibits given by the doctor (of Viscera and clothes of deceased ) Ex.Pw35/A. He had also joined the investigation at the time of apprehension of CCLs and recovery of weapon and deposed on the line of Pw30.
FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.15 7.34 Pw37 Ct. Jaideep Singh and Pw40 Ct. Shri Kishan had joined the investigation on 08.08.2014 when on secret information and on pointing out of accused Prem Giri and Suraj pandey accused Vikas Khari was arrested. they proved the arrest memo of accused Vikas Khari Ex.Pw37/A and his personal search memo Ex.Pw37/B. They also proved the seizure memo of clothes of accused Vikas Khari Ex.Pw37/C and pointing out memo of spot Ex.Pw37/D, of tea shop where they had meal and drinks Ex.Pw37/E and his disclosure statement Ex.Pw37/F. Pw37 identified the clothes of accused Vikas Khari and proved them as Ex.Pw37/P1 (colly).
Pw40 had also joined investigation on 10.08.2014 when at the instance of accused Vikas Khari his Pair of shoes worn on the date on incident was recovered and proved its seizure vide memo Ex.Pw40/A and he identified and proved the shoes as Ex.Pw40/P1 7.35 Pw38 Ct. Suman is channel operator PCR on 04.08.2014 and proved the PCR form Ex.Pw38/A regarding receipt of information from mobile no. 9311619944. She also proved the certificate u/S 65 B IEA Ex.Pw38/B. 7.36 Pw39 Inspector Ram Mehar is the first IO. He proved tehrir Ex.Pw39/A and site plan Ex.Pw39/B. 7.37 Pw41 Pawan is brother of CCL M and deposed that he had given his sim number 7503397170 to his brother M before leaving FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.16 to his native village.
7.38 Pw42 Inspector Surender Singh is the last IO who concluded the investigation and filed the charge sheet.
8. After completion of investigation accused persons were examined u/S 313 Cr.P.C and all incriminating material were put to them. Accused persons claimed that they are innocent and have been falsely implicated. The accused persons did not lead any evidence in defence.
9. Arguments were heard from prosecution and defence and carefully perused the file.
10. There is no doubt that it is case of murder as the PM report of Ajay proves that the multiple injuries inflicted on him were sufficient in ordinary course of nature to cause death. However, there is no eye witness therefore the case rests on circumstantial evidence.
11. Law with regard to circumstantial evidence has been discussed in detail by the Supreme Court in the case of Harishchandra Ladaku Thange vs. State of Maharashtra, reported at AIR 2007 SC 2957. It would be useful to reproduce the relevant paragraphs:-
"8. It has been consistently laid down by this Court that where a case rests squarely on FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.17 circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v.State of Rajasthan 1977CriLJ639, Eradu v. State of Hyderabad 1956CriLJ559, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi and Ors. 1985CriLJ1479, Balwinder Singh alias Dalbir Singh v. State of Punjab, 1987CriLJ330 and Ashok Kumar Chatterjee v. State of M.P. 1989CriLJ2124). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR1954SC621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
9. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. 1996CriLJ3461 , wherein it has been observed thus:
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In Padala Veera Reddy v. State of A.P. FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.18 AIR1990SC79 it was laid down that when a case rests upon circumstantial evidence, 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;
(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.
11. In State of U.P. v. Ashok Kumar Srivastava [1992]1SCR37 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
12. Sir Alfred Wills in his admirable book `Wills' Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.19 asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
13. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952."
12. The prosecution proposes to prove the case that Deceased Ajay was friend of accused Vikas Khari but Vikas Khari was angry with Ajay as Ajay used to share the information of Vikas with one Sumit Bhadana. Therefore, he planned to kill Ajay and purchased a meat cutter from shop of Pw9 Zamil Ahmed and on the night of incident he Joined accused Prem Giri and Pankaj with three CCLs for execution of his plan. They gathered and had there meal and drinks at the tea Stall of Pw5 Raj Kumar from where accused Vikas Khari called Ajay from the mobile number of CCL 'D' and when Ajay came there they took him to spot and stabbed him with the chopper and knives and left him to die at spot. After that they separated and CCL 'M' concealed the chopper in a polythene and gave it to Pw10 Mohd. Sazid, which was later recovered at the instance of CCL 'D' and 'M' who came into picture only on FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.20 disclosure of accused Suraj and Prem Giri. The CDR and location chart of accused persons confirms there presence the area where crime was committed and clothes recovered form accused persons, specially accused Vikas Khari, had blood of human origin. Therefore the crime was committed by none but these three accused persons and the CCLs.
13. However, the evidence led by prosecution is not sufficient to prove this chain of events. There is no evidence on record to show that deceased Ajay was friend of accused Vikas Khari or that Vikas Khari was angry with Ajay for sharing his information with his enemy. This being the motive proposed by prosecution was crucial to be be proved.
14. Case of prosecution was that it was accused Vikas Khari who called the deceased from the mobile phone of CCL 'D' and for that the prosecution has proved CDR of mobile phone of one Mamta wife of Pawan. However, this CDR only proves that on 03.08.2014 a call was made from mobile no. 9310528235 to mobile phone no. 8287593149 for 81 seconds from the area of Lawrance Road, Industrial Area which is near the spot of crime. However, this CDR in itself do not prove the fact that mobile no. 8287593149 belonged to the deceased and mobile no. 9310528235 belonged to CCL 'D'. The CAF of this phone shows that it belongs to one Mamta w/o Pawan but it is not established if this Mamta W/o Pawan had any relation with CCL 'D' or deceased.
FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.21
15. The other CDRs proved on record, specifically Ex PW 26/C of accused Vikas Khari although showed that holder of those mobile phones were present in the area of Lawrance Road on the night of incident but this in itself is not sufficient to connect the accused persons with commission of crime.
16. The next connecting piece of evidence relied by the prosecution is the recovery of blood stained clothes. However, PW 23 have categorically deposed that there was no blood found on the clothes, allegedly of accused Prem Giri and Suraj Pandey. There was detection of human blood in the shoes allegedly recovered from accused Vikas Khari. But serological examination have failed to identify the blood group to match the same with the blood group of deceased i.e. group 'A'. The seizure memo of shoes Ex PW 40/A is dated 10.08.2014 despite the fact that he was arrested on 08.08.2014 and on the date of arrest itself the police had recovered the clothes of accused Vikas Khari (on which no blood was detected). Therefore, this recovery of shoes is rightly contested as planted piece of evidence for no independent witness, not even from the family of accused Vikas Khari, was joined. Even if it is assumed tha the shoes belonged to accused Vikas Khari, there could be many reasons of having human blood on those shoes. Prosecution has not proved any MLC on record to show that accused Vikas Khari was not having any injury on his body to rule out the possibility that the human blood detected on the shoes was of Vikas Khari himself.
17. So far as recovery of chopper Ex P-1 is concerned, it is FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.22 admittedly not recovered at the instance of accused persons who are facing trial. The prosecution wanted to prove that this chopper was purchased by accused Vikas Khari from PW-9 Zamil Ahmad but he failed to depose so and was declared hostile. Therefore, the alleged recovery of Ex P-1 at the instance of one CCL 'M', which is again disputed for the fact that Pw-10 categorically deposed that nothing was taken out from the polythene bag in his presence, is not a circumstance against accused Vikas Khari or other two accused facing trial to connect them with the commission of crime.
18. Further, prosecution wanted to prove the fact that accused persons alongwith three CCL had gathered at the tea stall of PW-5 and had drinks and meal before commission of the crime. But PW-5 has turned hostile. Therefore, even the circumstance of gathering before commission of crime is not proved.
19. In case of circumstantial evidence, the prosecution must satisfy:
"(1)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(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 FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.23 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. See Sharad Birdichand Sarda Vs. State of Maharashtra AIR 1984 Supreme Court 1622.
20. The prosecution has failed to establish the motive. It has failed to prove that accused Vikas Khari purchased the chopper, Ex P-1. It has also failed to prove that accused persons had gathered at shop of PW-5 where they had meal and drinks. It has also failed to prove that accused Vikas Khari called the deceased from mobile of CCL 'D'.
21. It is pertinent to mention here that Ajay was alive and he was found lying by PW-8 and he told PW-8 that some 4-5 persons stabbed him. Similarly, PW-21 deposed that in the PCR van Ajay regained consciousness and he informed PW-21 that injuries were caused by some 4-5 persons with knife. The case of prosecution is that Ajay was friend of accused Vikas and even accused Prem Giri and accused Suraj Pandey were known to him. It is surprising that if the Ajay was caused injuries by his known persons, he despite having asked by PW-8 as well as PW-21 would not name the assailants. Either the assailants were not known to Ajay or the accused persons were never friend with him.
ORDER
22. In view of the discussion held above, I am of the view that prosecution is failed to prove the case beyond reasonable doubt FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.24 against accused Vikas Khari, Prem Giri and Suraj Pandey. Therefore, they are acquitted of the charges levelled against them.
Digitally signed by VIKRAMVIKRAM Date: 2023.01.30 Date : 30.01.2023 16:27:14 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/30.01.2023 Dictated on : 30.01.2023 Digitally Transcribed on : 30.01.2023 signed by checked on : 30.01.2023 VIKRAM Signed on : 30.01.2023 VIKRAM Date: 2023.01.30 16:27:21 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/30.01.2023 FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.25 Annexure 'A' List of Prosecution Witnesses S.No. PW No. Name of Witness Details of Witness 1. PW-1 SI Naresh Pal Incharge crime team 2. PW-2 Ct. Saneep Photographer 3. PW-3 Insp. Manohar Lal Draftsman 4. PW-4 Dr. Bhim Singh Incharge Mortuary, BJRM Hospital. 5. PW-5 Raj Kumar Regarding identification of accused persons 6. PW-6 Pawan Witness to ID of SIM no. 7503397170, used by JCL Madan 7. PW-7 Dr. Anurag Jain Senior Resident Orthopedic, BJRM Hospital 8. PW-8 Naveen Kumar Verma Made call at 100 number 9. PW-9 Zamil Ahmad Sold weapon of offence to accusd Vikas Khari 10. PW-10 Mohd. Sajid Witness to recovery of weapon of offence 11. PW-11 Mithilesh Witness to ID of SIM no. 9971174026, used by witness Sajid 12. PW-12 HC Dharamveer Duty officer 13. PW-13 Ct. Makhan Lal Recorded DD No. 2 PP dated 04.08.2014 14. PW-14 Ct. Dinesh Deposited sealed pullanda with Vardhman Mahavir Medical Collge and Safdarjung Hospital 15. PW-15 Rajeev Sharda Alternate Nodal Officer FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.26 16. PW-16 HC Manoj MHC(M) 17. PW-17 Dr. Gopal Krishna Casualty Officer, BJRM Hospital 18. PW-18 Ashok Yadav Witness to identification of dead body 19. PW-19 Satish Yadav Witness to identification of dead body 20. PW-20 Dr. Narender Kumar SR Surgery Department, BJRM Hospital 21. PW-21 HC Kishan Lal PCR Official 22. PW-22 Ct. Raj Kumar Witness to investigation 23. PW-23 Ct. Sanjay Witness to investigation 24. PW-24 Ct. Sanjay Witness to investigation 25. PW-25 Shishir Malhotra Nodal Officer 26. PW-26 Israr Babu Alternate Nodal Officer 27. PW-27 Mukul Gupta Nodal Officer 28. PW-28 Jeet Prakash Giri Owner of SIM 9136319806 29. PW-29 Chander Shekhar Nodal Officer 30. PW-30 Ct. Virendera Singh Witness to investigation 31. PW-31 HC Jagjit Singh Witness to investigation 32. PW-32 Dr. Ruchi Sharma Junior Forensic Chemical Examiner 33. PW-33 Dr. Adesh Kumar Dr. Scientific Officer, Chemistr, FSL 34. PW-34 HC Prem Ram Witness to investigation 35. PW-35 Ct. Mehar Singh Witness to FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.27 investigation 36. PW-36 HC Surender Kumar Witness to investigation 37. PW-37 Ct. Jaideep Witness to investigation 38. PW-38 W/Ct. Suman Gautam Channel Operator at PCR 39. PW-39 Insp. Ram Manohar 1st IO 40. PW-40 Ct. Shri Kishan Witness to investigation 41. PW-41 Pawan Owner of SIM 7503397170 42 PW-42 Insp. Surender IO FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.28 Annexure 'B' List of Exhibits S.No. Exhibit No. Details of Documents Remarks 1. Ex. PW 1/A Affidavit 2. Ex. PW 1/B Crime team report 3. Ex. PW 2/A Affidavit 4. Ex. PW 2/B Photographs 5. Ex. PW 2/C CD 6. Ex. PW 3/A Affidavit 7. Ex. PW 3/B Site Plan 8. Ex. PW 4/A Post mortem report 9. Ex. PW 4/B Sketch of chopper 10. Ex. PW 4/C Opinion 11. Ex. P-1 Chopper 12. Ex. PW 7/A MLC Portion from point A to A1 on MLC. Portion encircled at point D proved by PW-17. Portion from point E to E & F to F proved by PW-20 13. Ex. PW 10/A Sketch of weapon of offence 14. Ex. PW 10/B Seizure memo of weapon of offence 15. Ex. PW 10/C Statement under Section 161 Cr.P.C. of witness 16. Ex. PW 12/A FIR 17. Ex. PW 12/B Endorsement on rukka 18. Ex. PW 12/C DD No. 5 19. Ex. PW 12/D Certificate under Section 65-B of Indian Evidence Act 20. Ex. PW 12/E DD No. 6 FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.29 21. Ex. PW 13/A Affidavit 22. Ex. PW 13/B DD No. 2PP 23. Ex. PW 14/A Affidavit 24. Ex. PW 15/A Customer application Mobile no. form 9350716393 25. Ex. PW 15/B Copy of driving licence 26. Ex. PW 15/C Call details & location chart 27. Ex. PW 15/D Customer application Mobile no. form 8287593149 28. Ex. PW 15/E Copy of election voter I- card 29. Ex. PW 15/F Call details & location chart 30. Ex. PW 15/G Certificate under Section 65-B Indian Evidence Act 31. Ex. PW 16/A Copy of entry at serial no. 2727 in register no. 19 32. Ex. PW 16/B Copy of entry at serial no. 2728 in register no. 19 33. Ex. PW 16/C Copy of entry at serial no. 2736 in register no. 19 34. Ex. PW 16/D Copy of entry at serial no. 2737 in register no. 19 35. Ex. PW 16/E Copy of entry at serial no. 2738 in register no. 19 36. Ex. PW 16/F Copy of entry at serial no. 2743 in register no. 19 37. Ex. PW 16/G Copy of entry at serial no. 2755 in register no. 19 38. Ex. PW 16/H RC No. 69/21/14 39. Ex. PW 16/J RC No. 70/21/14 40. Ex. PW 16/K & Copy of RC 16/L 41. Ex. PW 16/M Copy of acknowledgement FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.30 42. Ex. PW 18/A Dead body identification memo 43. Ex. PW 19/A Dead body identification memo 44. Ex. PW 21/A Statement of witness 45. Ex. PW 22/A Seizure memo 46. Ex. PW 22/P1 Cassette 47. Ex. PW 23/A Seizure memo of pullandas 48. Ex. PW 23/B Seizure memo 49. Ex. PW 23/P1 Button 50. Ex. PW 23/P2 Small piece of blood sustained cloth 51. Ex. PW 24/A Arrest memo of accused Prem Giri 52. Ex. PW 24/B Arrest memo of accused Suraj Pandey 53. Ex. PW 24/C & Personal search memos 24/D 54. Ex. PW 24/E Pointing out memo 55. Ex. PW 24/F & Disclosure statement of 24/G accused Suraj Pandey and Prem Giri 56. Ex. PW 24/H Seizure memo of blood stained clothes of accused Suraj Pandey 57. Ex. PW 24/J Blood stained jeans of accused Prem Giri 58. Ex. PW 24/P1 T-shirt (half sleeve) & one jeans pant 59. Ex. PW 24/P2 One jeans pant 60. Ex. PW 25/A Customer application Mobile no. form 7503397170 61. Ex. PW 25/B CDR (from 01.06.2014 to 30.08.2014) 62. Ex. PW 25/C Location chart FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.31 63. Ex. PW 25/D Certificate under Section 65 B of Indian Evidence Act 64. Ex. PW 25/E Forwarding letter 65. Ex. PW 26/A Customer application Mobile no. form 8376865303 66. Ex. PW 26/B Copy of DL 67. Ex. PW 26/C CDR (from 01.06.2014 to 30.08.2014) 68. Ex. PW 26/D Location chart 69. Ex. PW 26/E Certificate under Section 65 B of Indian Evidence Act 70. Ex. PW 27/A Customer application Mobile no. form 9136319806 71. Ex. PW 27/B Copy of voter I-card 72. Ex. PW 27/C PAN Card 73. Ex. PW 27/D CDR (from 01.06.2014 to 30.08.2014) 74. Ex. PW 27/E Location chart 75. Ex. PW 27/F Certificate under Section 65 B of Indian Evidence Act 76. Ex. PW 27/A1 Customer application Mobile no. form 9136207363 77. Ex. PW 27/B1 Voter I-card 78. Ex. PW 27/C1 CDR (from 01.06.2014 to 30.08.2014) 79. Ex. PW 27/D Location chart 80. Ex. PW 27/E Certificate under Section 65 B of Indian Evidence Act 81. Ex. PW 29/A Customer application Mobile no. form 8527983389 82. Ex. PW 29/B Copy of voter I-card 83. Ex. PW 29/C CDR (from 01.06.2014 to FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.32 30.08.2014) 84. Ex. PW 29/A1 Customer application Mobile no. form 9311619944 85. Ex. PW 29/B1 Copy of adhar card 86. Ex. PW 29/C1 CDR (from 01.06.2014 to 30.08.2014) 87. Ex. PW 29/A2 Customer application Mobile no. form 9971174026 88. Ex. PW 29/B2 Copy of voter I-card 89. Ex. PW 29/C2 CDR (from 01.06.2014 to 30.08.2014) 90. Ex. PW 29/D Location chart 91. Ex. PW 29/E Certificate under Section 65 B of Indian Evidence Act 92. Ex. PW 30/A Proceedings qua JCL Mohd. Tamanna 93. Ex. PW 30/B Proceedings qua JCL Deepak @ Monu 94. Ex. PW 30/C Proceedings qua JCL Madan 95. Ex. PW 30/D Pointing out memo 96. Ex. PW 30/E Pointing out memo 97. Ex. PW 32/A & Biological report and 32/B serological report 98. Ex. PW 32/P1 Cotton wool swab 99. Ex. PW 32/P2 Concrete material 100. Ex. PW 32/P3 Concrete material 101. Ex. PW 32/P4 Clothes 102. Ex. PW 35/A Seizure memo 103. Ex. PW 37/A Arrest memo of accused Vikas Khari 104. Ex. PW 37/B Personal search memo 105. Ex. PW 37/C Seizure memo 106. Ex. PW 37/D Pointing out memo FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.33 107. Ex. PW 37/E Pointing out memo 108. Ex. PW 37/F Disclosure statement 109. Ex. PW 37/P1 One pant (black colour with white lines) & a shirt (black, gray and white check) 110. Ex. PW 38/A PCR Form 111. Ex. PW 38/B Certificate under Section 65-B of Indian Evidence Act 112. Ex. PW 39/A Tehrir 113. Ex. PW 39/B Site plan 114. Ex. PW 40/A Seizure memo 115. Ex. PW 40/P1 Pair of shoes 116. Mark A & B Computer application Marked in form and Voter I-card testimony of PW-6 117. Mark MX-1 Copy of election I-card Marked in the testimony of PW- 11 118. Mark A-1 Copy of voter I-card Marked in th testimony of PW- 25 FIR No. 467/2014 State Vs. Vikas Khari & Ors. Page no.34