Delhi District Court
28. It Has Been Held In Ramesh Bhai & Anr. vs . State Of Rajasthan on 13 April, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 72/2009
PS: Civil Lines
U/s: 302/201/376/34 IPC
S.C. No.: 48/2009
Case ID No.02401R0386292009
In the matter of:
State
Versus
1. Gaijaomai George Kamei
S/o Chirangam Kamei
R/o Noney LongmaiIV,
Distt. Taminglong, Manipur.
2. Roshan Kangabam
S/o Meino Gogo Kangabam
R/o Bomleikai , Opposite Kings Maharaja Palace,
Imphal East, Manipur. (Absconding)
Date of receiving in Sessions Court : 04.09.2009
Arguments Heard : 6.4.2011
Date of Judgement : 13.4.2011
JUDGEMENT
Case Of Prosecution:
1. On 14.5.2009 on receipt of DD No.20A regarding lying of dead body of a girl in Bonta Park, Inspector Suraj Bhan alongwith ASI Ram FIR No.: 72/2009 1/26 Tirath, Constable Subhash and SHO reached at the spot i.e. Bonta Park where they found dead body of a woman aged about 2530 years. There was a deep cut wound on the neck of the dead body and her head was towards south and legs were towards north. The dead body was in half naked condition and a light yellow colour panty was lying under the buttock of dead body. One maroon colour top, black colour jeans and one leather chappal having golden strip were worn by the dead body and another chappal was lying near the left leg of dead body. A white colour bag containing a red colour bra and make up articles i.e. two eye liner pencils and one nail filer, three red colour beer tins on which ''God Father Super Strong'' was written and a gents handkerchief were also lying on the bushes near the dead body. Crime team was called at the spot which inspected the scene of crime and photographs of the dead body as well as scene of crime were taken. Dead body was tried to get identified from the nearby residents but same could not be identified and no eye witness was found at the spot.
Thereafter case u/s 302/201 IPC was registered at P.S. Civil Lines. During investigation, IO prepared site plan, recorded statement of the witnesses and after the postmortem examination of dead body, same was cremated. Thereafter on 20.5.2099 Miss. Easter Kamei, sister of deceased Lingaliu Kamei came to the police and informed the police about the missing of her sister Lingaliu Kamei @ Gaina since 13.5.2009. She identified the photographs of the dead body of her sister as well as other belongings of her sister which were available with the police. She stated that she had lastly seen her sister on 13.5.2009 with coaccused Roshan as they both were FIR No.: 72/2009 2/26 going to Kamla Nagar for shopping. During investigation on 22.5.2009 on the basis of secret information, accused Gaijaomai George Kamei was apprehended and he confessed his guilt. Accused was arrested and his police custody remand was taken. During police custody remand, accused pointed out the place of occurrence and got recovered the weapon of offence i.e. knife from ganda nala. During the further course of investigation, accused was got medically examined, opinion regarding weapon of offence was obtained, scaled site plan was prepared and section 376 IPC was added in the charge sheet after receiving the postmortem report. After getting NBWs from the court, coaccused Roshan was traced but he could not be found and after completion of investigation, IO filed the charge sheet u/s 302/201/376/34 IPC against the accused George.
2. Since the offence u/s 302/201/376 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case u/s 376 (2) (g)/302/34 IPC was made out against the accused. Charges were framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 19 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
FIR No.: 72/2009 3/26
Formal witnesses:
6. PW5 is Constable Pradeep who took the accused to Aruna Asaf Ali hospital for his medical examination and handed over the sealed parcels given to him by the concerned doctor to IO of the case.
7. PW6 Head Constable Jitender Singh, the MHC(M) who made the entry in register no.19 regarding deposition of the case property in the malkhana and proved the same as Ex.PW6/A to Ex.PW6/K.
8. PW7 Head constable Sunder Lal is the photographer of mobile crime team, North District who took 14 photographs of the dead body as well as scene of crime from different angles and proved the same as Ex.PW7/A1 to A14. He further proved the negatives as Ex.PW7/B1 to B14.
9. PW8 is Inspector Amar Singh, I/C crime team, North District who inspected the scene of crime and gave his detailed report Ex. PW8/A.
10. PW9 SI Pratap Singh is the duty officer who recorded the FIR of this case and proved the same as Ex.PW9/B. He also recorded DD No. 20A and 21A and proved the same as Ex. PW9/A and Ex. PW9/C.
11. PW10 Head Constable Rajender Singh is the beat officer of Bonta Pahari who gave the information regarding lying of a dead body in the bushes of Bonta Pahari on 14.5.2009 and thereafter took the rukka to police station Civil Lines for registration of FIR.
12. PW11 SI Mahesh Kumar is the draftsman who took the rough notes and measurement of the spot and prepared the scaled site plan Ex.PW11/A. FIR No.: 72/2009 4/26
13. PW12 is Sh. Devender Nain, Ld. MM Tis Hazari, Delhi who recorded the statement of Ms. Easter Kamei u/s 164 Cr. P.C. and proved the same as Ex.PW3/C.
14. PW13 Constable Devender Kumar is the duty constable of Aruna Asaf Ali Hospital who handed over three sealed parcels to the IO of the case.
15. PW15 is Sh. Ashok, Lab Technician who took out the blood sample of accused Gaijaomai George Kamei and handed over the same to concerned doctor.
16. PW18 is Sh. Amit Rawat and PW19 is Sh. A.K. Srivastava, from FSL Rohini from FSL, Rohini who examined the exhibits of the case and proved the report as Ex. PW18/A and Ex. PW19/A and Ex. PW19/B respectively.
Material witnesses:
17. PW3 is Ms. Easter Kamei, sister of deceased who stated that she saw her deceased sister lastly in the company of coaccused Roshan. She also identified the photographs of the dead body of her sister which were available with the police and proved the same as Ex. P3/A and Ex. PW3/B.
18. PW4 ASI Ram Tirath, PW14 Constable Mukesh, PW16 Head Constable Subhash are the police officials who joined the investigation of the case alongwith IO and proved the memos etc.
19. PW17 Inspector Suraj Bhan is the IO of the case who conducted the investigation of this case and proved the memos etc. FIR No.: 72/2009 5/26 Medical witnesses:
20. PW1 is Dr. Rabinder Kumar, Medial Officer from Aruna Asaf Ali, Hospital, Delhi who examined the accused and proved the MLC as Ex. PW1/A.
21. PW2 is Dr. Akash Jhanjee, Junior Specialist, Forensic Medicine from Subzi Mandi Mortuary who conducted the postmortem examination upon the dead body of deceased and proved the report as Ex. PW2/A. He had also conducted potency test of accused Gaijaomai George Kamei and proved the MLC as Ex. PW2/B. He further proved his opinion regarding the weapon of offence i.e. knife as Ex. PW2/C.
22. Statement of accused U/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in the present case. He further stated that he was in deep love with deceased and they were scheduled to be married very soon with the consent of their parents and relatives. He had physical relations with the deceased and deceased was pregnant. After the missing of deceased, he tried to search her alongwith the sister of deceased and association members but she could not be found.
23. Initially accused chose to lead defence evidence but thereafter he submitted that he does not want to lead any evidence in defence.
24. I have heard Ld. defence counsel for the accused and Ld. APP for the State and have carefully perused the record.
Conclusion:
25. Ld. APP for the state argued that the prosecution has established the chain of circumstances beyond reasonable doubt; the contradictions as FIR No.: 72/2009 6/26 pointed out are minor in nature which are liable to be ignored; there is no major discrepancy in the prosecution story and the material witnesses have fully supported the prosecution case and there is nothing in their lengthy cross examination so as to assail their deposition. Ld. APP for the state vehementally argued that the prosecution had established its case by completing the chain of circumstantial evidence and the evidence on record has nowhere been assailed in any manner therefore, accused be convicted for the offence of murder.
26. On the other hand, Ld. Defence Counsel argued that chain of circumstantial evidence is not complete. There is no last seen evidence and motive of crime is not established by the prosecution. Therefore, the accused is entitled for acquittal.
27. Admittedly there is no eye witness of the present case and entire case rests upon the circumstantial evidence. The law relating to circumstantial evidence is very clear and has been laid down by the Hon'ble Apex Court in various judgments again and again.
28. It has been held in Ramesh Bhai & Anr. Vs. State of Rajasthan 2009 VIII AD (S.C.) 313 that: "It has been consistently laid down by this court that where a case rests squarely on circumstantial evidence, the reference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, AIR 1977 SC 1063, Eraden & Ors. Vs. State of Hyderabad AIR 1956 SC 316, Erabhadrappa Vs. State of Karnataka AIR 1983 SC 446, State of U.P. Vs. Sukhban & Ors. AIR 1985 SC 1224, Balvinder Singh Vs. State of Punjab AIR 1987 SC 350 Ashok Kumar Chatterjee Vs. State of M.P. AIR 1989 SC 1890. The circumstances FIR No.: 72/2009 7/26 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".
29. In Padala Veera Reddy Vs. State of A.P. & Ors. AIR 1990 SC 79, 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 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"
30. The present case of prosecution is also based entirely on the circumstantial evidence as there is no eyewitness to the incident. I have considered the rival submissions made at bar and have carefully gone through the evidence on record. The case of prosecution is based on circumstantial evidence and the prosecution has claimed to have established its case by proving the following circumstances in evidence which form the chain of circumstantial evidence:
(i) Last seen evidence.
FIR No.: 72/2009 8/26
(ii) Recovery of the dead body of an unknown female and its identification.
(iii) Arrest of accused and his disclosure statement.
(iv) Recovery of the weapon of offence i.e. knife. (v) Motive of Crime.
31. In order to prove the guilt of the accused beyond reasonable doubt, it is bounden duty of the prosecution to establish that the circumstances concerned must have been established and the circumstances should be of a conclusive nature excluding every hypothesis except the one that proves the guilt of the accused. It is further required to prove that the chain of circumstantial evidence is complete as not to leave any reasonable ground for the conclusion which is consistent with the innocence of the accused and it must have been shown that in all human probability, the offence must have been committed by the accused.
32. I have closely scrutinized the evidence and the material on record to find out whether the prosecution has succeeded in fulfilling the above requirement and has established its case beyond reasonable doubt.
(i) Last Seen Evidence:
The witness of last seen evidence examined by the prosecution is the sister of deceased i.e. PW3 Ms. Easter Kamei. She has stated that she came to Delhi in the year 2008 for study. She knows the accused through his friend namely Mr. Peter. Sister of Peter was working alongwith her deceased sister. Accused Gaijaomai George Kamei was living with a boy FIR No.: 72/2009 9/26 Roshan who was the son of his sister. On 12.5.2009 her deceased sister Gaina told her that she wanted to go to Manipur alongwith the accused and her deceased sister asked her to live with Lawrence as her room mate Kasalu was also going to Bangalore. She stated that on that day her deceased sister went with accused and Roshan to Gandhi Vihar and they had taken fridge from Nehru Vihar to Gandhi Vihar. Lawrence was living in Nehru Vihar and at that time she was in Nehru Vihar alongwith Lawrence and her friend Kasalu. On 13.5.2009 she and her room mate Miss. Kasalu went to Gandhi Vihar to see her deceased sister at about 2.003.00 p.m. Roshan had come to Delhi before a week. On 13.5.2009, Roshan asked her deceased sister Giana to go to Kamla Nagar and at about 4.30 pm Roshan and her deceased sister went to Kamla Nagar. After sometime accused Gaijaomai George told her that he will be going to Cannaught Place but he did not tell the reason for going to Cannaught Place. The witness further stated that she and her room mate Kasalu were waiting for the return of her sister in Gandhi Vihar and at about 9.30 p.m. Roshan alone returned to Gandhi Vihar. She asked Roshan about her sister on which he replied that her sister had given Rs. 20/ to him for going to house and her sister had gone to South Delhi to see her friend. At about 10.30 p.m. accused Gaijaomai also returned to Gandhi Vihar at his room where she was waiting for her sister. At that time Gaijaomai also asked Roshan about deceased Gaina and Roshan replied that she had gone to South Delhi. Thereafter her sister did not return. At about 11.00 pm she alongwith her friend Kasalu returned to Nehru Vihar as she thought that her sister might have stayed with her friend in South Delhi. On FIR No.: 72/2009 10/26 14.5.2009, at about 9.30 am, she made telephone call to accused and asked about her deceased sister on which he became perplexed and replied that she had not returned. Thereafter she started making telephone call to the other friends of her sister but she could find any information about her deceased sister. Again on 15.5.2009 at about 6.00700 am, she made telephone call to accused Gaijaomai and asked about her sister but he replied that he does not know about her sister. At about 8.30 pm, she again made telephone call to accused Gaijaomai on which he replied that he is on railway station alongwith Roshan as Roshan has to go to Bangalore. On 16.5.2009, she went to Gandhi Vihar at accused's residence at H. No.186, Ground Floor and inquired about her deceased sister. There she asked the accused about her sister on which he gave the same reply that he does not know about the whereabouts of her sister. The witness further stated that she could not find any information about her sister upto 19.5.2009 and on 19.5.2009 she disclosed the fact of missing of her sister to her cousin brother and sister. They ranged to Zialiangrong Association and they all gathered at accused's place to discuss about her sister and thereafter they went to police station at around 12.30 am. where she identified her sister's photographs which were available with the police. The photographs were of the dead body of her sister. Thereafter they returned to their house and on 20.5.2009 she alongwith her relatives and persons of her community again went to police station Civil Lines where she identified the purse and clothes of her sister. Witness further stated that her statement Ex.PW3/C was also recorded by the magistrate. In her cross this witness has admitted that she came to Delhi in FIR No.: 72/2009 11/26 2008 and she know accused George since 2008. She has stated that she was staying at Gandhi Vihar with her sister Gianna, the deceased and her friend Kasalu. But in her chief examination this witness has stated that on 12.5.2009 Lawrence was living in Nehru Vihar and at that time she was in Nehru Vihar alongwith Lawrence and Mis Kasalu. She further is not able to tell the complete address of her residence at Gandhi Vihar. Neither she know the landlord of that house. She further stated that her statement was not recorded after 20th . She further stated that she saw accused on 20th in the evening time in Nehru Vihar at his house. In her cross, she has stated that on 20th she had conversation with the accused when she saw him at his house. She has admitted that accused was helping her to trace out her sister alongwith her other friends from 13th May till 20th May. In her cross this witness has admitted that birthday of Kasalu was on 13.5.2009 and she also joined the birthday party of Kasalu on 13.5.009 in the evening and the party was celebrated at the house of accused George. She has stated that the party started from 8.30 or 9.00 p.m. and finished at around 11.00 p.m. and Kasalu and Peter had also joined the party. In her chief this witness has not stated anything like this. She has stated that on 13.5.2009 her deceased sister Giana had gone to Kamla Nagar alongwith Roshan and after sometime accused Gaijaomai George also left for Cannaught Place and at about 9.30 P.M Roshan alone returned to Gandhi Vihar and thereafter at about 10.30 p.m. accused George also returned to Gandhi Vihar at his room where she was waiting for her sister. In her cross she has stated that she celebrated the birthday party of Kasalu at the residence of accused George and party FIR No.: 72/2009 12/26 started from 8.30 or 9 p.m. and finished at about 11 p.m. and she has not stated that till 11 p.m. she was waiting for her deceased sister to return. In her chief she has stated that she telephoned accused George again and again to enquire about the whereabouts of her deceased sister but in her cross she has stated that she does not know whether accused George was using mobile phone at that time or not. She has further admitted that no land line phone was installed at the house of accused George at that time. If no land line phone was installed at the house of accused, then where PW3 ranged to enquire about her deceased sister is not explained by her. She has further stated that she talked with accused on her friend's phone namely Lawrence as she does not have any mobile phone. This witness has stated that she learnt English language in the school. The statement of PW3 recorded U/s 164 Cr.P.C. has been proved on record as Ex. PW3/A. In the application moved by IO Ex. PW12/A before Ld. MM for recording the statement of witness U/s 164 Cr.P.C., IO had stated that the witness is not well aware of Hindi/English Language and knows only her mother tongue Manipuri and thereafter he be granted time to arrange for the official translator of Manipuri. But in the court when this witness appeared to give her her statement, it is clear that she was able to fully understand English Language. She deposed in English not only in her examination in chief but in her cross examination also, she gave the answers of all the questions of defence counsels in English very well.
33. So far as the last seen evidence is concerned then from the testimony of PW3 given in the court as well as from her statement U/s 164 FIR No.: 72/2009 13/26 Cr.P.C. , it is clear that this witness has not stated anything against accused George that he left the house with her deceased sister. She has only stated that Roshan alongwith her deceased sister left for Kamla Nagar on the fateful day. Thereafter after sometime accused George also left the house saying that he has to go to Cannaught Place. There is nothing on record brought by the prosecution except for the disclosure statement of accused George that instead of Cannaught Place, he went with the deceased and Roshan to Bonta Hills (Kamla Nehru Ridge North) or that the deceased was last seen in the company of accused alongwith coaccused Roshan. PW3 has stated that on 20th she came to know through police that accused George is involved in the murder of her sister whereas as per the case of prosecution, it was PW3 who showed her suspicion upon accused George and it was only thereafter that the police interrogated accused George who made his disclosure statement. PW3 has further stated that accused Roshan and George returned to their house at Gandhi Vihar at 9.30 P.M. and 10.30 P.M. respectively. There is no evidence on record which proves the fact that accused Roshan and George came together to the house of George and thereafter they separated near the house or that they both were seen lastly in the company of deceased. It was to the accused Roshan that PW3 asked the whereabouts of her sister and Roshan told her that deceased Gaina had given Rs. 20 to him to go to the house and she has gone to South Delhi. PW3 herself has stated that accused was also helping her in tracing out her deceased sister. From the testimony of PW3, it is clear that even PW3 did not have any suspicion upon accused George. Except for PW3 prosecution FIR No.: 72/2009 14/26 has not examined any other witness who can depose about the fact that accused George was lastly seen in the company of deceased. Even PW3 also has not stated any thing like this that her deceased sister left home with accused George. PW3 alongwith her friend Kasalu went to the house of accused George but that Kasalu has not been made a witness in this case. PW3 being the sister of deceased is definitely an interested witness. Moreover in her testimony she has not taken the name of accused George anywhere. She had neither shown her suspicion upon accused nor she has stated that the conduct of accused was such that she had suspicion upon him or that accused George was lastly seen in the company of deceased. According to PW3 when she asked the whereabouts of her deceased sister from Roshan he replied that she has gone to South Delhi. As per PW3 she contacted the friends of her deceased sister at South Delhi and came to know that they are also not aware about the whereabouts of her sister. When neither Roshan nor accused George replied anything about knowing the sister of PW3 or her whereabouts, then in the absence of any substantive evidence no presumption can be drawn that accused George also left the house on the pretext of going to Cannaught Place and instead of going to Cannaught place he met Roshan and deceased in the way and thereafter he alongwith Roshan killed the deceased. From the report U/s 173 Cr.P.C. it is not clear as on what basis accused George had been arrested by the police. According to PW3 it was police only who told her that accused George is involved in the murder of her sister . If PW3 herself had not showed any suspicion on the accused and also the other persons of their community had FIR No.: 72/2009 15/26 no suspicion upon accused George and accused George was helping them in tracing out the deceased, then how the police developed suspicion upon accused is nowhere been mentioned in the report U/s 173 Cr.P.C. Merely because accused had also left the house after the deceased alongwith Roshan left the house is no ground to raise the presumption that accused was in the company of deceased at the time of her death in the absence of any other substantive evidence on record. There is neither any fingerprint expert report on record to show the fact that fingerprints of accused were also found on the things i.e. on the beer cane or other materials lying at the spot. Even in the FSL Report, semen of accused has not been detected at the spot or upon the deceased or upon the vaginal swab of deceased. Thus, so far as last seen evidence is concerned, the prosecution has miserably failed to prove this circumstantial evidence against the accused beyond reasonable doubt. Reliance is placed upon 2001 (2) JCC (SC) 332 wherein it has been held that " the other witnesses who went with the last seen evidence/witnesses have not been examined by the prosecution which raises a doubt on the case of prosecution".
(ii) Recovery of the dead body of unknown female and identification of the same:
34. Witnesses to this circumstantial evidence are police officials i.e. PW4, PW10, PW16, PW17 and also PW3 who is sister of deceased.
35. PW10 was the beat officer at Bonta Pahari, Civil Lines. He stated that on 14.5.2009 at about 4 p.m. he alongwith Constable Pankaj were on patrolling in Bonta Pahari Park for the purpose of detection of crime. At that FIR No.: 72/2009 16/26 time they saw one lady with deep slit wound on her neck who was lying in dead condition in the bushes of Bonta Pahari. He informed the duty officer in this regard vide DD no. 20 A and after sometime the SHO, Additional SHO alongwith other staff members reached at the spot. PW4 and PW16 are ASI Ram Tirath and Head Constable Subhash who alongwith IO Inspector SurajBhan reached at the spot. They have stated that on 14.5.2009 after receipt of the call they reached at Bonta Pahari, Kamla Nehru Park where they saw dead body of a girl aged about 25/30 years. There was a wound on her neck and the head of the dead body was facing towards South and the legs towards North. The dead body was in half naked condition and the panty from the left leg was uncovered and in the right leg it was half covered. There were two plastic black colour bangles in the right hand of the dead body and a maroon colour top was worn by the dead body. Near the dead body there was a leather chappal and another chappal was lying near the dead body. Near the dead body three tins of beer having God Father Super Strong label were lying and one white colour handkerchief was also found on the bushes near the dead body. Near the head of the dead body, a hand bag was also found which contained items like nail filer, two eye liners and a red colour bra. Thereafter the crime team alongwith photographer was called at the spot which inspected the scene of crime. From the testimony of these witnesses, it stands proved that the dead body of an unknown female was found on 14.5.2009. The dead body had been recovered on 14.5.2009 and thereafter it has been postmortemed on 19.5.2009. In the postmortem report Ex. PW2/A, it is clearly mentioned that the lady was pregnant and FIR No.: 72/2009 17/26 uterus contained a male fetus of around 4 to 5 months in duration. In the postmortem report the time since death is given as 5 days to 6 days. The dead body had been detected on 14.5.2009 and the deceased was missing from her house since the evening of 13.5.2009 . Till the dead body was cremated, same could not be identified. Subsequently on 20.5.2009 when PW3 went to police station at about 12.30 a.m. , she identified her deceased sister's photograph which were available with the police. Till the time the dead body was cremated it could not be identified. But subsequently on 20.5.2009 when PW3 visited the police station to lodge the missing report of her sister then she identified the photographs of the dead body of her sister. She has duly proved the photographs as Ex. PW3/A and Ex. PW3/B. She has further stated that alongwith the photographs she had also identified the belongings of her deceased sister in the police station i.e. purse and clothes. Thus, identity of the dead body has been established by the prosecution. It is not the case of accused that the photographs of dead body which were identified by PW3 in the police station were not of deceased and the belongings i.e. purse and clothes and other items which were recovered from the place where the dead body was lying also did not belong to deceased. Thus, so far as the recovery of dead body or its identification is concerned, then same has been duly proved by the prosecution beyond reasonable doubt that dead body of an unknown female was found by the police of P.S. Civil Lines on 14.5.2009 and from the photographs and its belongings it was later on identified as the dead body of the sister of PW3 i.e. Gaina.
FIR No.: 72/2009 18/26
(iii) Arrest Of Accused And His Disclosure Statement:
36. According to the police officials PW4, PW16 and PW17 after the identification of dead body, IO of the case tried to search the wanted accused persons namely Roshan and George . On what basis the accused persons were searched by the police officials have not been explained by any of the police official in their testimony in the court. So far as the testimony of PW3 is concerned then she has stated that she was told by the police officials that accused Geroge has committed the murder of her sister. If PW3 herself had not shown her suspicion upon accused George , then on what basis the police officials made efforts to search the wanted accused persons namely Roshan and George has not been explained by the prosecution. As per the case of prosecution on 22.5.2009 they apprehended accused George and interrogated him who made his disclosure statement . It is a well settled principle of law that the disclosure statement made to the police is not admissible in evidence except in cases where in consequence to the disclosure statement, recovery of some fact or things has been made by the police. In the present case so far as the recovery of the clothes of accused is concerned, then as per the FSL report clothes of the accused did not have any blood stains on them. According to PW17 accused told them that he had already washed his clothes after committing the murder of deceased. This fact is also mentioned in the disclosure statement of accused. Thus, the recovery of clothes of the accused is of no help to the prosecution.
37. So far as the DNA of accused is concerned, then accused himself has admitted in his statement U/s 313 Cr.P.C. that he used to love the FIR No.: 72/2009 19/26 deceased and they had physical relations and deceased was pregnant.
38. As far as the discovery of other fact i.e. pointing out of the place of incident by the accused is concerned, same was also known to the police prior to the disclosure statement of accused as from the place of incident only the dead body of deceased was recovered on 14.5.2009.
(iv) Recovery of the Weapon Of Offence:
39. The only fact that has been recovered in consequence to the disclosure statement of accused is the weapon of offence which is a knife as per the case of prosecution. As per the testimony of PW4, PW16 and PW17 on 23.5.2009 accused was produced before the court of MM from where his one day police custody remand was taken and subsequently on 24.5.2009 accused led the police to Ganda Nala at Mukherjee Nagar, Delhi from where he got recovered a knife i.e the weapon of offence. In the present case the disclosure statement of accused was recorded on 22.5.2009. Why till 24.5.2009 police was not able to recover the weapon of offence is not explained by the prosecution. Ld. APP for the state argued that initially accused did not cooperate in investigation and subsequently after taking the police party here and there it was only on 24.5.2009 that the accused got recovered the weapon of offence from Ganda Nala. On the other hand, Ld. Defence counsel argued that it is hard to believe that the accused after committing the offence of murder would hide the weapon of offence at a dry place at Ganda Nala instead of throwing the same in the flowing water of Ganda Nala to destroy all the evidence against him. He further argued that the place of Ganda Nala is a wet place and and it is hard to believe that FIR No.: 72/2009 20/26 despite the knife being hidden there for more than 10 days, it did not get any rust. Even if for arguments sake we take the submissions of APP for the state as true but still both the above submissions of Ld. Defence counsel bears force and cannot be ignored. Any person committing the crime and that too of murder, would try to destroy the weapon of offence after committing the crime. As per the case of prosecution accused led the police party at Ganda Nala from where he got recovered a knife. In such circumstances, it is hard to believe that instead of throwing the knife in the muddy/flowing water at Ganda Nala accused hide the same at a dry place in the ganda nala and even from that dry place when the knife was recovered after 12 days, same did not get rusted is also hard to believe. Ganda nala is a place where not only there is water but the adjoining land also remains wet throughout the year. In such circumstances, even if for argument's sake we believe that accused hide the knife at a dry place at ganda nala still same did not get a single spot of rust in the period of 12 days is hard to believe. The fact that the knife was totally new one and was not rusted has been specifically asked by the counsel for accused during the cross of police officials. As per PW3 she went to police station at about 12.30 a.m. on 20.5.2009 whereas as per the IO PW 3 met her on 20.5.2009 at about 7/8 p.m. PW17 in his cross has admitted that he does not remember whether in her statement made to the IO on 20.5.2009, PW3 Easter Kamei had raised any suspicion regarding the involvement of accused in the present case or not. If PW3 did not raise any suspicion then why PW17 apprehended accused George in the present case has not been explained by the prosecution. Even the address of George was FIR No.: 72/2009 21/26 known to PW17 on 21.5.2009 but it seems that till 22.5.2009 no efforts were made by the police officials to trace him. Even at the time of recovery of the weapon of offence no public witness has been joined by the police officials.
PW17 has admitted that there is vehicular movements on the bridges on the Ganda Nala as well as on the adjoining road and the place of recovery was at a distance of 14/15 feet from the bank of nala. According to PW17 he kept the knife on the plain paper for preparing its sketch in the same condition in which it was recovered. On the sketch of knife which has been filed in the court on judicial record, it does not have any mud stains or spots on it. If the knife was recovered from the place which is at a distance of 14/15 feet from the bank of nala then it must have been recovered from the mud there. In such circumstances it is hard to believe that the knife which was recovered from Ganda Nala did not have any mud or other stains on it. Even during the recovery of knife, neither any fingerprint expert had been called nor any fingerprint had been lifted from the knife by the IO to substantiate his claim that the knife which was recovered at the instance of accused also had fingerprints of accused on the same. PW17 has further stated that the knife was not rusted at that time and the place of recovery was at a distance of 2 steps away from the flowing water. If the place of recovery was at a distance of 2 steps away from the flowing water, then during that period of more than 10 days it is hard to believe that the knife did not get a single spot of rust on it. According to the police officials from Ganda Nala they went to Gandhi Vihar at the house of accused from where accused got recovered his wearing clothes . But it seems that from that place also no public witness was joined FIR No.: 72/2009 22/26 by the police officials . Moreover as per the FSL report, no blood was detected on the clothes of accused.
40. From the abovesaid discussion it is clear that not only the disclosure statement of accused is inadmissible in evidence but subsequently the recovery of the weapon of offence at the instance of accused in the present case is also doubtful and it cannot be said that the prosecution has been able to prove the recovery of the weapon of offence at the instance of accused George beyond reasonable doubt.
(V) Motive of Crime:
41. So far as the motive of crime is concerned, prosecution has failed to prove the same on record. As per the case of prosecution accused in his disclosure statement stated that though deceased used to love him and they had physical relations also but subsequently accused went to Manipur and during that period deceased had developed physical relations with some other person known as Ricky. As per the disclosure statement of accused, he himself had introduced Gaina to Ricky and when he came back from Manipur he got annoyed to see Gaina roaming around with Ricky and he threatened to break up the friendship with Gaina but later on at the request of Gaina, he agreed to accept her as his girl friend but again Gaina went out with many other guys. Therefore accused lost trust in her and in February 2009 deceased told the accused that she was pregnant but accused did not rely upon her. As per the case of prosecution, accused in his disclosure statement had stated that in the month of April deceased went to Shimla and Manali with Ricky and other guys and when she came back, they sat to FIR No.: 72/2009 23/26 discuss about the pregnancy of Gaina. On 3.5.2009 they both decided to go to home to tell the truth to their parents and get married. On 12. 5.2009 Gaina shifted to his place and stayed with accused and thereafter on 13.5.2009 accused again felt that Gaina does not love him and he discussed this fact with his nephew Roshan and they both planned to eliminate Gaina. Neither said Ricky nor any other guy or any other person from the community of Gaina or the sister of Gaina have deposed about these facts. If Gaina was roaming with said Ricky as per the disclosure statement of accused, then it was the duty of prosecution to examine said Ricky or other persons of their community to establish the fact that Gaina had relations with other guys also. But prosecution has failed to do so. Neither PW3 has disclosed about this fact nor any other person from the community of deceased has been examined by the prosecution as witness to establish the motive of crime. So far as the disclosure statement of accused is concerned then as discussed above same is not admissible in evidence. To prove the motive of accused to commit the offence of murder of deceased, prosecution was required to prove the relations of deceased with some other guys due to which accused committed her murder but no such evidence has been brought on record by the prosecution to prove this fact. Neither prosecution has made any person a witness in this case nor PW3 has deposed about these facts. In such circumstances, even the motive to commit the murder has not been established by prosecution beyond reasonable doubt. Reliance is placed upon 2003 (1) JCC 218 wherein it has been held by Hon'ble High Court that "absence of motive puts the court on its guard to scrutinise the FIR No.: 72/2009 24/26 circumstances more carefully to ensure that suspicion and conjecture do not take the place of legal proof".
42. Though from the FSL report Ex. PW19/A, it can be inferred that accused cannot be excluded from being the biological father of the fetus found in the uterus of deceased but the fact that the deceased was pregnant is no ground that the accused had any motive to eliminate her. Accused in his statement Us/ 313 Cr.P.C. has also admitted that deceased was pregnant and they both were planning to get married.
43. In nut shell, the only inference that can be raised from the abovesaid discussion is that the chain of circumstantial evidence proved on record by the prosecution is not complete and many of the important link witnesses are missing. So many question remains unanswered by the prosecution. Recovery of weapon of offence at the instance of accused also has not been established by the prosecution and therefore, in such circumstances benefit of this must go to the accused.
44. As such, accused is given benefit of doubt. He is acquitted of the offence. He is in J/C. He be released forthwith if not required in any other case. Accused submitted that he is from Manipur and there is no one to give his surety. In view of the new amended section 437A of Cr.P.C., accused is directed to furnish personal bond in sum of Rs. 10,000/ for the period of 6 months with the condition that he shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal filed by the state against the judgement within a period of 6 months. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. FIR No.: 72/2009 25/26
45. Accused Roshan is Proclaimed Offender. Prosecution is at liberty to reopen the case as and when accused Roshan is arrested in this case. File be consigned to record room.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 13.4.2011.
FIR No.: 72/2009 26/26