Delhi District Court
State vs . Anil Kumar @ Jat @ Vicky Etc. on 16 March, 2015
1
In the court of Dig Vinay Singh ASJ/Special Judge : NDPS
(N-W) : Rohini Courts : Delhi
In the matter of :
SC no. 41/13
State Vs. Anil Kumar @ Jat @ Vicky etc.
FIR no. 222/07
PS Hari Nagar
U/s 302/201/120B/34 IPC
State
Versus
1) Anil Kumar @ Jat @ Vicky
S/o Sh. Om Prakash @ Omi
R/o Village Bakarwala, P.S Nangloi, Delhi.
2) Pankaj Goel
S/o Late Sh. Surender Kumar Goel
R/o Flat no. 201, Sector-13,
Bharat Apartments, Rohini, Delhi.
3) Prem Arora
S/o Sh. Ronak Lal
R/o 14/103, Subhash Nagar, Delhi.
4) Rajesh Kumar @ Raju
S/o Sh. Hari Chand
R/o 1/227, Subhash Nagar, Delhi.
Date of receipt : 19.09.2007
(Received in this court) : 08.11.2013
Date of arguments : 04.02.2015
Date of announcement : 16.03.2015
SC no. 41/13 Dtd... 16.03.2015 Page 1 of 45
2
JUDGMENT
1. The above named four accused were sent for trial with the case of prosecution that they entered into a criminal conspiracy to murder Sachin Arora, in furtherance of their conspiracy they murdered him on 14.04.2007 and, thereafter, they also gave false information to the hospital authorities and the police regarding the manner in which the deceased sustained injuries, in order to screen themselves from legal punishment, and thereby committed offences punishable U/s 120B/302 & 201 of IPC. The story of prosecution unfolds as follows.
1.1. At 11.15 PM on 14.4.2007 an information was received at police post MIG Flats, PS Rajouri Garden, that Sachin Arora was admitted in Mata Chanan Devi Hospital (MCDH for short), with history of fall from stairs. This information was recorded in DD no. 32 and ASI Baljeet Singh was deputed to attend the call. ASI Baljeet Singh along with Ct. Sunil went to the hospital, collected the MLC no. 489/07 of injured Sachin Arora and then went to the spot. On reaching the spot he came to know that the spot falls within the jurisdiction of police station Hari Nagar, and not police station Rajouri Garden, therefore, he informed police station Hari Nagar telephonically, at 2.25 AM, on the night intervening 14th & 15th April, 2007.
1.2. This information was recorded in DD no.3B at police station Hari Nagar.
From police station Hari Nagar, ASI Jai Hind was deputed to attend the SC no. 41/13 Dtd... 16.03.2015 Page 2 of 45 3 call. ASI Jai Hind along with Ct. Arun Kumar reached the place of incident i.e. near Ashish Motors, Ajay Enclave, Subhash Nagar road, Hari Nagar. There ASI Baljeet Singh was found present. ASI Baljeet Singh handed over MLC no. 489/07 of injured Sachin Arora. No eye witness met ASI Jai Hind at the spot. ASI Jai Hind then went to MCDH. Sachin Arora was found unfit for statement in the hospital. In the hospital also no eye witness met ASI Jai Hind. The DD entry was therefore kept pending enquiry. Again on 16.4.2007, ASI Jai Hind went to the hospital where the condition of Sachin Arora was learnt to be serious and he was found to be on ventilator. In the hospital, Sunil Arora, brother of Sachin Arora, met ASI Jai Hind and said that he was not in a condition to give any statement at that time and that after Sachin regains consciousness, statement would be given after enquiring from Sachin in detail. However, Sunil orally told ASI Jai Hind that his brother Sachin Arora had told him that the four accused had given beatings to Sachin due to which he sustained injuries on his head and chest and also that accused Prem Arora and others got Sachin admitted in the hospital. From these facts, ASI Jai Hind prepared a rukka and got an FIR U/s 308/34 of IPC registered. The FIR was registered at 10.10 AM on 16.04.2007. On 18.04.2007, injured Sachin was shifted to Sir Ganga Ram Hospital. The case was converted to one U/s 307/34 of IPC. Later on, injured Sachin expired on 24.4.2007 and the case was converted to one U/s 302/34 IPC. During investigation, family members of deceased expressed dissatisfaction with the investigation and apprehension that ASI Jai Hind was in collusion with SC no. 41/13 Dtd... 16.03.2015 Page 3 of 45 4 the accused, therefore, the investigation was transferred to other investigating officer.
1.3. During investigation, statements of Sunil Arora and Anil Arora, the brothers of deceased, were recorded. In their statements dated 25.04.2007, the brothers of deceased claimed that on 14.4.2007 at about 12.30 in the noon, accused Anil Jaat and Raju, who were associates of Prem Arora, came to their house and asked for deceased Sachin. Deceased Sachin was not present in the house at that time and they were accordingly informed. Accused Anil Jaat and Raju left the house of witnesses threatening that Sachin be advised to make payment of money else he would face dire consequences. They allegedly even threatened that Sachin may lose his life. Accused Anil and Raju thereafter left the house. Subsequently, Sachin came to the house and he was informed about the incident. Sachin thereafter left the house stating that he would go and talk to Prem Arora. He went in a Santro Car no. DL4C AC 5829. Thereafter, Sachin did not return and even his phones were switched of.
1.4. At about 7.30 PM, accused Raju called up Anil Arora, and told that Sachin was with accused Prem Arora and asked that what he should do with the car of Sachin. On the instructions of Anil Arora, accused Raju brought and left the car of Sachin at his house. At that time also accused Raju told Anil Arora that Sachin was with accused Prem Arora. When Anil Arora called up on the mobile phone of accused Prem Arora, even his phones were found to be switched of. Anil Arora then SC no. 41/13 Dtd... 16.03.2015 Page 4 of 45 5 contacted accused Anil Jaat upon which Anil Jaat told the witness that he would make Sachin talk to him. But there was no communication from Sachin. When Anil Arora called accused Prem Arora, even he did not give any satisfactory answer about Sachin. Thereafter, at about 10 PM, accused Prem Arora called up Anil Arora and informed that Sachin had fallen from stairs and was admitted in MCDH. Both brothers of Sachin then reached hospital, they spoke to the injured Sachin, and allegedly injured Sachin told them that he was beaten by the four accused.
1.5. During investigation, the accused persons were apprehended. Post mortem of the deceased was got conducted in which it was opined that the cause of death of deceased was due to cardiogenic shock upon rupture of right atrium of heart followed by hard and blunt impact force upon chest wall, which was sufficient to cause death in ordinary course of nature. During investigation, statements of witnesses were recorded. Upon completion of investigation, charge sheet was filed.
2. Accordingly, all the accused persons were charged U/s 120B, 302 & 201 of IPC, to which they pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined total 47 witnesses. It may be mentioned here that number PW-12 and 18 were given two different witnesses twice, and therefore, the total number of witnesses examined are 47 and not 45.
3.1. From the family members of deceased, the witnesses examined are SC no. 41/13 Dtd... 16.03.2015 Page 5 of 45 6 PW1 Anil Arora, PW3 Sunil Arora and, PW22 Smt. Santosh.
3.2. From the eye witnesses to the incident of beating, prosecution examined PW2 Biru, who turned hostile to the case of prosecution. PW5 Neeraj also turned hostile to the case of prosecution. Similarly, PW9 Naveen also turned hostile.
3.3. Prosecution also examined Anil Sethi as PW38 and Gaurav as PW20 in order to prove that some financial transactions were the root cause of the crime. I shall deal with their testimonies later on.
3.4. From the medical evidence point, prosecution examined 9 witnesses i.e. PW21 Dr. Inderjeet Verma, PW11 Dr. Anil Kumar Gupta, PW12 Dr. M. Aggarwal, PW15 Dr. Rajeev Seth, PW18 Dr. P.Vishal, PW10 B.N.Mishra, PW44 Dr. M.K.Dhar, PW45 Dr. Neeraj and PW33 Dr. Rashmi.
3.5. Dr. Inderjeet Verma from Verma Nursing Home, as PW21, deposed that at about 5.00 PM on 14.04.2007 deceased Sachin was admitted in Verma Nursing Home and at the time of admission, the patient was conscious and oriented. Sachin was brought to the hospital by his cousin and friends as intimated. Sachin was administered necessary treatment. At about 8.10 PM, Sachin had a vomit and in order to rule out internal injuries he was advised CT Scan and for further detailed investigations and management, he was referred to MCDH. Patient was sent to MCDH at 8.20 PM on 14.04.2007. The witness proved treatment chart Ex.PW21/A and his letter dated 20.04.2007 SC no. 41/13 Dtd... 16.03.2015 Page 6 of 45 7 Ex.PW12/DB.
3.6. PW11 Dr. Anil Kumar Gupta from MCDH proved that Sachin was admitted in MCDH on 14.04.2007 at about 9.55 PM and that he was operated by this witness at about 11.30 PM or midnight. Sachin remained in the hospital till 18.04.2007 and then left MCDH against medical advice.
3.7. PW12 Dr. M. Aggarwal simply deposed that the patient was examined by Dr. Anil and not by him.
3.8. PW15 Dr. Rajiv Seth also stated that the MLC of Sachin was not prepared by him and that it was perhaps prepared by Dr. Vishal.
3.9. PW18 Dr. P.Vishal deposed that when deceased Sachin was admitted in MCDH at 9.55 PM, he gave first aid to the deceased, securing his airway, along with IV fluids. Sachin was admitted in ICU and that he prepared MLC Ex.PW18/A. The witness also proved that the patient was conscious though drowsy at the time of his admission and examination.
3.10. PW44 Dr. M.K.Dhar could not identify hand writing and signatures of Dr. Sumona Bose on the death certificate of Sachin. Dr. Sumona Bose had left the hospital.
3.11. PW45 Dr. Neeraj Tyagi came and identified the hand writing and signatures of Dr. Sumona Bose on the death certificate Ex.PW45/A. 3.12. PW33 Dr. Rashmi Yadav examined the specimen of heart of deceased SC no. 41/13 Dtd... 16.03.2015 Page 7 of 45 8 which was received for examination in DDU Hospital. She examined it on 30.11.2007 and gave opinion Ex.PW33/A stating that congested areas were seen over the right atrium, opening of superior vena cava and some areas of left ventricle. Suture was also noticed on the right atrium. No rupture was seen. Section from the congested areas reflected afresh and old hemorrhage and fibrinous exudate in the superficial layers only. She deposed that the features were suggestive of hemopericardium.
3.13. PW10 Dr. B.N.Mishra conducted the post mortem of the deceased. He deposed that on the external examination of the deceased following 12 external injuries were found : -
1. Multiple grazed abrasion present in lower part of back and parascapular region of back with irregular shape and scab formation with pale brown in colour.
2. Abraded bruise present with covering whole area of cubital fossa(elbow) and whole medial aspect of left arm with scab formation with pale brown in colour.
3. Rubbed- abraded bruise of size 4 x 3 cm with irregular shape present at volar (flexor) aspect of left wrist.
4. Abraded bruise of size 4 x 1 cm with irregular shape present at anterior aspect of left shoulder.
5. Whole anterior part of nose bruised of size 3 x 2 cm with dark colour hematoma formation (on dissection).
6. Multiple needle prick mark present on the right cubital fossa and SC no. 41/13 Dtd... 16.03.2015 Page 8 of 45 9 ventral aspect of right wrist.
7. Bruise of size 4 x 3 cm present at thenar eminence of right palm.
8. Abraded bruise of size 4 x 3 cm present at dorsum of left foot with irregular in shape.
9. Surgical stitched wound 20 cm in length in curved shape present at 5th intercostal space and two another stitched wound present at 7th intercostal space on right side of chest.
10. One surgical wound made for tracheostomy at the base of neck
11. One abraded bruise of size 2 x 0.5 cm present at the base of left great toe.
The post mortem report is proved as Ex.PW10/A. On internal examination of the body of deceased fracture in the fifth rib on the right side at costal end, and collection of clotted blood near the fractured site. Anterior aspect of middle lobe of right lung was found bruised of size of 6 x 5 cm with squeezing of muco pus on dissection. Right upper part of heart (right atrium) nearby at junction to superior venacava and right atrium presented with a tear (rupture) of size 1 cm X 0.75 cm in dimension with repaired and tied by a silk thread (during operative measure).
The witness deposed that cause of death of deceased was due to cardiogenic shock consequent upon rupture of right atrium of heart followed by forceful hard and blunt impact upon chest wall which was sufficient to cause death in the ordinary course of SC no. 41/13 Dtd... 16.03.2015 Page 9 of 45 10 nature. All injuries were ante mortem in nature and all were suffered around ten days prior to the post mortem. The post mortem was conducted on 24.04.2007.
This witness also deposed that as per the pattern, nature and distribution of injuries present over the body of deceased and further facts revealed on visit to the scene of crime, in his considered opinion, the possibility of deceased falling forcibly on the border of vertical wall and then rolling down upon the stairs cannot be ruled out.
The photographs taken at the time of autopsy were also handed over to the investigating officer and the seven photographs of the crime scene were also handed over. During post mortem, piece of heart was preserved for hystopathological study. After considering, the report of hystopathological study Ex.PW10/B, the witness stated that the report is consistent to post mortem findings.
3.14 Qua the scientific evidence, PW34 V. Shankara Narayanan, SSA (Biology) from FSL, Rohini was examined. This witness deposed that he examined the blood sample of the deceased, the blood stained vest, pant and one underwear of the deceased. Upon examination blood was detected in the blood sample and on the blood stained vest. Blood could not be detected on pant and underwear. He proved his report as Ex.PW34/A. On serological analysis, the blood group of blood sample could not be determined as it was putrefied, but the vest contained „A‟ group of blood. Serological report is proved as Ex.PW34/B. SC no. 41/13 Dtd... 16.03.2015 Page 10 of 45 11 3.15 Besides the witnesses mentioned above, other witnesses are more or less formal in nature.
3.16 PW4 ASI Sangeeta was the duty officer who proved registration of FIR and DD no. 19A.
3.17 PW6 R.P.Singh, the nodal officer from Airtel, proved the call detail records of mobile of Anil Arora bearing no. 9810111150. No certificate U/s 65B of Evidence Act was proved by the witness qua the call detail records of this mobile.
3.18 PW7 Sanjeev Lakra, the nodal officer of Reliance Communication Ltd., proved call detail records of Prem Arora having no. 9310023391 and 9310523391. He also proved the call detail records of the mobile phones of Pankaj Goel, Ajay son of Sukh Dayal and, Rajesh Kumar with nos. 9311146846, 9312829715 and 9313546284, respectively. The Certificate U/s 65B of Evidence Act, exhibited by this witness as Ex.PW7/J, qua these five mobile call details record is lacking in material particulars and is not in compliance and accordance of the said provision.
3.19 PW8 HC Ram Chander simply proved DD no. 37A, 9B, 3B, 19A, 2B, 17A, 28A and 29A as Ex.PW8/A to 8/F, respectively.
3.20 PW13 SI Baljeet was the first police officer who went to the hospital and then to the spot as initially information was received in police post MIG under police station Rajouri Garden. This witness deposed that when he reached MCDH, injured was found admitted in the hospital SC no. 41/13 Dtd... 16.03.2015 Page 11 of 45 12 and he was in operation theater. Accused Prem Arora was present in the hospital from whom enquiries were made and Prem Arora took the witness to the spot. On reaching the spot, it was learnt that the spot falls within the jurisdiction of police station Hari Nagar and accordingly, he delivered the information to police station Hari Nagar. From police station Hari Nagar ASI Jai Hind came to the spot to whom the MLC of Sachin Arora was handed over and ASI prepared the site plan.
3.21 PW16 HC Jaiveer was the photographer of the mobile crime team who obtained photographs Ex.PW16/A-1 to A8.
3.22 PW17 HC Bijender Singh is a witness qua arrest of accused Anil Jaat on 23.04.2007 along with SI Dalip Kaushik.
3.23 PW18 SI Anil Kumar was the In charge of the mobile crime team who inspected the crime scene and proved his report Ex.PW18/A. It may be mentioned that SI Anil and Dr. P. Vishal were both given the same PWno. 18, inadvertently.
3.24 PW19 Israr Babu, the nodal officer from Vodafone Telecom Company, proved the CDR of mobile phone of accused Pankaj having mobile no. 9811846846. No certificate U/s 65B of Evidence Act was proved by even this witness qua the call detail records of this mobile.
3.25 PW23 SI Mahesh Kumar, the draftsman, prepared scaled site plan of the place of incident, on 6.7.2007, i.e. three months after the incident, after he inspected the spot on 20.06.2007.
SC no. 41/13 Dtd... 16.03.2015 Page 12 of 45 133.26 PW24 ASI Rajbir Singh carried the exhibits of the case to the FSL, Rohini on 10.08.2007. He also deposed about the supplementary disclosure statement of accused Rajesh dated 21.08.2007. Since, no recovery was effected pursuant to the disclosure statement of Rajesh, it is inadmissible and we need not discuss further details of the disclosure.
3.27 PW25 HC Amrik Singh received information from Dr. P. Vishal from MCDH when Sachin was admitted in MCDH on 14.04.2007 and he recorded the information in PCR form Ex.PW24/A. 3.28 PW26 HC Banwari Lal proved DD no. 3B recorded at police station Hari Nagar as Ex.PW8/B, on 15.04.2007, at 2.25 AM.
3.29 PW27 HC Ram Singh simply carried the rukka from the place of incident and got the FIR registered. This witness had accompanied ASI Jai Hind at the spot on receipt of DD no. 3B.
3.30 PW28 Rajesh Kumar was the photographer who obtained photographs during the post mortem of the deceased and also of the crime scene. He proved 32 photographs obtained during post mortem as Ex.PW28/B-1 to B-32 and, the 7 photographs Ex.PW28/A-1 to A-7 of the spot, obtained by him.
3.31 PW29 Vineet Kapoor from SBI proved that from the account of Smt. Santosh Rani the mother of deceased, one cheque of Rs. 50,000/- was encashed on 13.04.2007. The witness deposed that cheque was a self- cheque and that the said cheque was encashed by someone on behalf SC no. 41/13 Dtd... 16.03.2015 Page 13 of 45 14 of the account holder, but he could not identify the person.
3.32 PW30 HC Ram Gopal took the sealed jar containing piece of heart of the deceased for medical examination to the DDU Hospital from the Malkhana on 30.11.2007.
3.33 PW31 Ct. Om Prakash is a witness to the arrest of accused Prem Arora along with Inspector Ombir Singh and others.
3.34 PW32 Ct. Rajesh Kumar deposed regarding disclosure statement of the accused Prem Arora and the pointing out of the place of occurrence by accused Prem Arora. No further recovery was effected pursuant to the disclosure statement of Prem Arora. The place of occurrence was already in the knowledge of investigating agency by the time it was pointed out by Prem Arora and therefore, no fact can be said to have been discovered and therefore, the disclosure is inadmissible.
3.35 PW35 Ct. Sandeep is a witness to disclosure of accused Pankaj Goel.
Even this disclosure is inadmissible.
3.36 PW36 & 37 HC Rakesh Tomar and Ct. Neeraj are witnesses qua arrest of Pankaj and pointing out of the place of occurrence by accused Pankaj, which again is inadmissible in law.
3.37 PW39 ASI Surjeet Singh proved that against ASI Jai Hind, a departmental enquiry was initiated and he was punished due to lapse in the investigation of this case.
3.38 PW41 Amit Kumar Sehrawat simply proved the arrest documents of SC no. 41/13 Dtd... 16.03.2015 Page 14 of 45 15 accused Pankaj from another judicial record file.
3.39 PW42 HC Hariram was the Malkhana moharrar of the police station who proved regarding deposition of the case property in the Malkhana and sending of the exhibits from the Malkhana to hospital or FSL authorities, vide entries in the Register no. 19 Ex.PW41/A to I. 3.40 From amongst the eye witnesses examined by the prosecution, PW2 Biru did not support the case of prosecution. Instead this witness deposed that on 14.04.2007 although Sachin came to the office of Prem Arora located at Ajay Enclave, but at that time accused Prem Arora was not present in the office. Deceased Sachin enquired about Prem Arora from this witness and then suddenly he fell down on the stairs and rolled down the stairs. He helped Sachin in getting up, offered him water and then he informed Prem Arora on his mobile after taking mobile phone of some other person who was present there. Thereafter, Prem Arora came to the office and then shifted Sachin to the hospital. The witness was declared hostile by the prosecution and was cross examined, but even during cross examination nothing material could be brought out on record in favour of the prosecution. Witness denied that any of the accused was present at the spot at the time of incident. Accused Raju, though has his office on the ground floor, but this witness did not claim that Raju was present in the office at that time.
3.41 PW5 Neeraj is also hostile to the case of prosecution. This witness in his cross examination by accused claimed that at the time of the SC no. 41/13 Dtd... 16.03.2015 Page 15 of 45 16 incident, he was present in his shop which is located on the ground floor. Sachin fell down from the stairs leading to the office of Prem Arora and sustained injuries. He claimed that since he was in a hurry at that time, he did not notice other details. But he claimed that at that time, none of the accused was present at the place of occurrence. However, he confirmed that PW2 Beeru was indeed present at that place who witnessed the incident and also took the injured upstairs. This witness advised Beeru to call up and inform Prem about the incident. He also claimed that Biru then called up Prem and he (witness) left the spot. This witness was in fact a witness qua recovery of telephone bills from the office of Prem Arora after about 15 days of the occurrence. But in the cross examination, he deposed that he had witnessed the occurrence.
3.42 Prosecution also examined PW9 Naveen Chadha who deposed that on 14.04.2007 at about 4.30 to 5.00 PM, he along with 2-3 persons were standing outside the shops at the place of occurrence. He heard a noise of somebody falling from the stairs. He reached there and saw that one person was lying near the staircase. His name was revealed as Sachin. Then Beeru took Sachin to the office of Prem Arora. He also went there and requested Beeru to give water to Sachin and to inform the owner. Thereafter, this witness left the spot. This witness was also subjected to cross examination by the prosecution after declaring him hostile, but in the cross examination of this witness nothing material came out in favour of the prosecution.
SC no. 41/13 Dtd... 16.03.2015 Page 16 of 45 173.43 PW20 Gaurav was examined by the prosecution in order to prove that there were some financial dealings between the deceased and the accused persons. However, even this witness turned hostile. This witness also deposed that he came to know that Sachin died because of fall from the stairs and that he did not know accused Prem Arora or accused Anil Kumar Jaat or Pankaj Goel. He claimed that he knew only accused Rajesh @ Raju, since Raju was having a shop. He also knew deceased Sachin Arora. This witness was subjected to cross examination by the prosecution in which nothing material came out in favour of the prosecution. The witness was also asked to hear a recorded telephonic conversation. After hearing the conversation the witness denied that the voice of one of the speakers contained in the CD was his voice or that the other person speaking in the CD was deceased Sachin Arora.
3.44 Prosecution also examined Anil Sethi as PW38 who deposed that his son PW20 Gaurav had some money transactions with accused Prem Arora and Anil. He claimed that accused Anil and Prem Arora had given some debt to Gaurav and in lieu of the debt, they obtained signatures of Gaurav on blank papers but later on that matter was compromised between his sons and the accused. Even this witness was declared hostile by the prosecution and he was cross examined by the prosecutor. The witness however identified accused Anil and Prem Arora in the court.
3.45 From amongst the family members of the deceased, prosecution SC no. 41/13 Dtd... 16.03.2015 Page 17 of 45 18 examined two brothers of the deceased, namely Anil Arora and Sunil Arora, and they also examined mother of the deceased namely Smt. Santosh.
3.46 Anil Arora and Sunil Arora are examined as PW1 and 3 respectively.
Both these witnesses deposed that on 14.4.2007 at 12.30 PM accused Anil Jat and Raju came to their house when they were present with their mother and wife of Anil Arora. Accused Anil Jat and Raju asked for Sachin. Sachin was not present in the house at that time and accordingly the two accused were informed. The two accused Anil Kumar Jaat and Raju threatened that Sachin should be advised to return their money or face dire consequences and he might even loose his life. Thereafter, accused Anil Jat and Raju left the house. Subsequently, Sachin came to the house and was informed about the incident. Sachin left the house in a Santro car claiming that he is going to meet accused Prem Arora. Thereafter Sachin Arora did not return. At about 3.30 PM, Sachin was tried to be contacted on his mobile phones but his mobile phones were switched off. At about 7.30 PM, accused Raju called PW1 Anil Arora from mobile no. 9313546284 and he informed that the Santro car of Sachin was with Raju and that Sachin had left with accused Prem Arora and Anil Jat. Raju asked Anil Arora as to what he should do with the car. This witness told Raju that the car be brought to their house. Subsequently, Raju came and dropped the vehicle at the house of the witnesses. At that time also Raju was enquired about Sachin. He reiterated that Sachin was with accused Prem and Anil Jaat. Subsequently, accused Prem Arora was contacted SC no. 41/13 Dtd... 16.03.2015 Page 18 of 45 19 on his mobile phone no. 9810523391 but it was switched off. Then accused Anil Kumar Jaat was contacted on his mobile no. 9310023391. Accused Anil Kumar Jaat told that Sachin was with accused Prem and he would make Sachin talk to PW1, shortly. No call however came. PW1 again called up accused Prem Arora on his above mentioned number. Accused Prem Arora also promised to make him speak to Sachin but they were never allowed to talk to Sachin. Subsequently, the witness again called up Prem Arora and at that time, accused Prem Arora told that Sachin had gone to fetch some file from the office and he would ask Sachin to talk to the witness. At 9.30 PM, accused Prem Arora called up PW1 and informed that Sachin had fallen from stairs and he was being taken to MCDH. Accused Prem asked PW1 to come alone. PW1 & PW3 both went to MCDH at about 10.00 PM. In the hospital, they saw Sachin was admitted. He was terrified and in serious condition. He told his brothers that he was severely beaten by the four accused at the office of Prem Arora and that he may not even survive and therefore, these two witnesses should take care of mother. The witness deposed that they told about the sequence of facts to ASI Jai Hind. ASI Jai Hind obtained their signatures on blank papers. Subsequently, they came to know that ASI Jai Hind was in league with the accused and he had prepared their wrong statements. They made complaints against ASI Jai Hind and then investigation was transferred to another investigating officer.
3.47 PW22 Smt. Santosh Devi simply deposed that on 13.04.2007 Sachin received a call from Gaurav Jain in which Gaurav Jain demanded Rs.
SC no. 41/13 Dtd... 16.03.2015 Page 19 of 45 2050,000/-. She gave those Rs. 50,000/- from her account which was paid to Gaurav as Gaurav had to pay the amount to Prem and Anil Jaat. This witness did not utter a single word about the incident of visit of their house by accused Anil and Raju at 12.30 PM on 14.04.2007 or regarding any threat extended by the accused Anil and Raju to the family members of Sachin.
3.48 The investigating officers are examined as PW12 ASI Jai Hind Singh;
PW14 Inspector Dalip Kaushik; PW40 Inspector Jai Singh and; Inspector Dalip Kaushik was again examined as PW43, to prove the documents of investigating officer Inspector Omvir Singh Joon who had left the services and had already shifted abroad.
3.49 PW12 ASI Jai Hind Singh deposed that on receipt of DD no. 3B Ex.PW8/B, on 15.7.2007, he reached the spot at Subhash Nagar where ASI Baljeet Singh(PW13) met him and handed over the MLC of deceased Sachin Arora who was admitted in MCDH. No eye witness met at the spot. Thereafter, this witness went to MCDH where Sachin Arora was found admitted in ICU and he was on ventilator. Since, injured was unfit for statement because of his serious condition, the witness returned to the police station and the DD was kept pending. The witness again went to the hospital on 16.4.2007, but there was no improvement in the condition of injured. On that day, PW1 Anil Arora met this witness and stated that he was not in a position to make statement and that he would give his statement later on. On 17th April, 2007, statement of Anil Arora was recorded in the hospital. On the next SC no. 41/13 Dtd... 16.03.2015 Page 20 of 45 21 day, injured was shifted to Ganga Ram Hospital. The witness proved his applications vide which he enquired the condition of patient from the doctor to record statement of the witness, but the deceased was repeatedly opined as unfit for statement by the concerned doctors. Those applications are proved as Ex.PW12/A to 12/D, pertaining to both the hospitals i.e. MCDH and Sir Ganga Ram Hospital.
3.50 PW14 Inspector Dalip Kaushik deposed that on 21.4.2007, investigation of this case was assigned to him and he remained investigating officer of this case for some time. During his investigation, accused Anil Jaat was arrested on 23.4.2007 on the basis of prior secret information. The witness also deposed that on 24.4.2007, he recorded statement of Sunil Arora (PW3) at Sir Ganga Ram Hospital. During his investigation, Sec. 307 IPC was invoked and later on Sec. 302 IPC was invoked after death of Sachin on 24.4.2007. So far as the pointing out of the place of occurrence and disclosure of accused Anil Jaat are concerned, since the place of occurrence was already in the knowledge of investigating agency, therefore, no fact can be said to be discovered pursuant to the disclosure of the accused. Therefore, the disclosure is inadmissible in law. Further investigation of this case was transferred to Inspector Ombir Singh Joon.
3.51 Since Inspector Ombir Singh Joon could not be examined as he had left the services and he went abroad, his documents and the part of investigation conducted by him was proved by Inspector Dalip Kaushik when he was again examined as PW43.
SC no. 41/13 Dtd... 16.03.2015 Page 21 of 45 223.52 PW40 Inspector Jai Singh was the further part investigating officer of the case and during his tenure as investigating officer, he arrested accused Pankaj Goel formally from the court on 8.4.2009. Prior to this period, accused Pankaj Goel was a proclaimed offender in the matter. Again the pointing out of the place of occurrence by accused Pankaj Goel is inadmissible in law for the reasons already mentioned above.
4 On completion of prosecution evidence, all the incriminating evidence was put to the four accused in their examination U/s.313 Cr.P.C. The four accused denied the evidence against them and claimed that they have been falsely implicated.
4.1 Accused Raju additionally claimed that he was informed about Sachin falling from stairs as he had a shop on the ground floor but at that time he was not present at the shop. He reached his shop subsequently and then came to know that Sachin had already been taken to hospital. At 6.30 PM he informed Anil Arora telephonically about Sachin being injured and thereafter he went to Mata Chanan Devi Hospital where Sachin was admitted.
4.2 Accused Prem Arora claimed that he was not present at his office when Sachin reached his office and he received a telephonic call and reached his office where he came to know about Sachin falling from stairs. He then shifted Sachin to Verma Nursing Home for his treatment and then Sachin was taken to Mata Chanan Devi Hospital. Accused Prem Arora claimed that he came to know about visit of Dr. B.N. Mishra to the site and inspection of the site by the doctor who also took SC no. 41/13 Dtd... 16.03.2015 Page 22 of 45 23 photographs in his absence.
4.3 None of the four accused opted to examine any defence witness in their favour.
5 I have heard Ld. Counsels for the accused, Ld. Counsel for the complainant and Ld. Prosecutor for the State. I have also gone through the written arguments filed on behalf of accused Anil Kumar Jat as well as on behalf of the family of deceased.
6 On behalf of accused Anil, reliance is placed upon following cases :
1. Vijay Kumar Vs. State of Rajasthan 2014 Legal Eagle (SC) 165, wherein it was held that benefit goes to the accused if a witness in his statement given to the IO had not stated the facts which were claimed for the first time before the court.
2. Manmohan Singh Vs. State (GNCT of Delhi) 2012 Legal Eagle (Delhi) 906, wherein delay in FIR and failure of prosecution to get the dying declaration recorded by a Magistrate was held fatal.
3. Balvinder Singh Vs. State of Punjab 1995 Legal Eagle (SC) 1063, wherein, the circumstances relied upon by the prosecution were held not established and there was no direct evidence against the accused and also there was delay in FIR, the benefit of which was given to the accused.
4. In Thulia Kali Vs. State of Tamil Nadu 1972 Legal Eagle (SC) 131, wherein delay in FIR was held to be fatal in the facts & SC no. 41/13 Dtd... 16.03.2015 Page 23 of 45 24 circumstances of that case, and it was held that FIR in a criminal case is an extremely vital and valuable piece of evidence for the purposes of corroborating the oral evidence adduced at the trial and that delay often results in embellishments which is a creature of afterthought and that on account of delay danger of introduction coloured version or concocted story creeps in. It was held that therefore it is essential that delay in lodging of FIR should be satisfactorily explained.
7. As is evident from the above discussion, the so-called eye witness Beeru did not support the case of prosecution and turned hostile. There is no other eye-witness to the incident. Instead even PW5 Neeraj and PW9 Naveen both deposed against the case of prosecution. In absence of the eye-witness account of the incident, the case of prosecution is primarily based on the so-called oral dying declaration of the deceased given to his two brothers Anil and Sunil and other circumstantial evidence.
7.1 Before examining the dying declaration and other circumstantial evidence, it would be appropriate to mention that Biru was the only eye- witness of the incident. This witness instead claimed that when Sachin reached the office of accused Prem Arora, Prem was not present there and Sachin fell down from the stairs and sustained injuries. He then helped Sachin in getting up, offered him water and then informed Prem Arora on his telephone. Prem Arora then came to the office and shifted injured to the hospital.
SC no. 41/13 Dtd... 16.03.2015 Page 24 of 45 257.2 Witness Neeraj PW5 was a witness only qua seizure of certain documents from the office of accused Prem Arora but when he was examined as PW5, in his cross-examination he claimed that he was also present at the spot and saw the deceased falling from the stairs and sustaining injuries. He also claimed that none of the accused was present at the place of incident, but Beeru was present and Biru took injured Sachin upstairs and he had advised Biru to call accused Prem.
7.3 Similarly, PW9 Naveen Chaddha was examined by the prosecution with a view to establish the fact that this witness saw accused Prem Arora going to his office at the relevant time and thereafter the deceased accompanying accused Prem Arora out of the office and going to somewhere in a car and at that time the deceased had kept his hand on his chest. Instead of supporting the case of prosecution, even this witness claimed that accused Prem was not present in the office at that time and deceased Sachin fell down from the stairs.
7.4 Nothing material could be brought out on record in the cross-
examination of these three witnesses by the prosecution.
7.5 Thus, we are left with no eye-witness account of the incident in favour of the prosecution, and instead there are three witnesses who claimed that the deceased fell from the stairs.
8. Turning to the oral dying declaration of the deceased, there is no dispute that oral dying declaration of a deceased if found reliable can SC no. 41/13 Dtd... 16.03.2015 Page 25 of 45 26 be accepted in evidence and can form a basis to convict an accused. However, it is equally well settled that before oral dying declaration is accepted, the court must be absolutely sure of the fact that such oral dying declaration was made. It is equally well settled that before oral dying declaration can be acted upon the exact words uttered by the deceased must be proved to the satisfaction of the court. It is also well settled that the medical condition of a deceased as to the fitness of deceased in giving statement has to be proved satisfactorily.
8.1 In Darshana Devi v. State of Punjab, 1995 Supp (4) SCC 126 it is held;
"10. .......... Even though an oral dying declaration can form basis of conviction in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. The difference in the exact words of the declaration in this case detract materially from the value of the oral dying declaration."
8.2 In State of Rajasthan v. Shravan Ram, (2013) 12 SCC 255 : (2013) 4 SCC (Cri) 129 it is held;
"12. .............. It is trite law that it is unsafe to base reliance on the statement made under Section 161 CrPC as a dying declaration without any corroboration. Although corroboration as such is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of the declaration. This Court in Arvind Singh v. State of Bihar [(2001) 6 SCC 407 : 2001 SCC (Cri) 1148] while dealing with the case of oral dying declaration stated as follows: (SCC p. 408) "Dying declarations shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have SC no. 41/13 Dtd... 16.03.2015 Page 26 of 45 27 the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence."
13. This Court in Bhajju v. State of M.P. [(2012) 4 SCC 327 : (2012) 2 SCC (Cri) 440] while dealing with admissibility of dying declaration held as follows: (SCC p. 337, para 26) "26. The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the court, the same may be refused to be accepted as forming basis of the conviction."
8.3 In Waikhom Yaima Singh v. State of Manipur, (2011) 13 SCC 125 it was observed as follows;
"19. It is also to be seen that the deceased was very seriously injured, so much so that according to the witnesses, he died immediately after allegedly making the said dying declaration, the time of which is not fixed by the prosecution. The most important circumstance about this dying declaration is that, firstly, it is oral and secondly, there is no medical evidence suggesting that the deceased was in a fit medical condition to make such a dying declaration.
20. There can be no dispute that the dying declaration SC no. 41/13 Dtd... 16.03.2015 Page 27 of 45 28 can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam Shyamjai Singh (PW 12) was also not cross-examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement."
8.4 In the present case, PW1 Anil and PW3 Sunil are the only witnesses who claimed that deceased made oral dying declaration before death. There is no independent witness to the so called dying declaration. No doctor or nurse witnessed it. PW1 Anil was initially examined in the court on 15.07.2008 and at that time accused Pankaj Goel was a proclaimed offender. In his said deposition, PW1 stated that when he and Sunil spoke to deceased Sachin in Mata Chanan Devi Hospital, Sachin told them under fear "that he had been severely beaten by accused, Prem Arora, Anil Jat, Raju and Pankaj Goel at the office of Prem Arora". When this witness was again examined after apprehension of Pankaj Goel, on 16.04.2010, this witness deposed that Sachin told that "accused persons Anil Jat, Prem Aora, Raju and Pankaj Goel gave merciless beatings to him in the office of accused Prem Arora. He further told Mein Shayadh Na Bach Pau. Ma Ka Dhayan Rakhna".
SC no. 41/13 Dtd... 16.03.2015 Page 28 of 45 298.5 Similarly, when Sunil was examined as PW3, he was also examined twice since one of the accused was apprehended later on. This witness in his initial deposition dtd. 23.07.2008 deposed that Sachin told them in the hospital in a terrified manner that "he had been severely beaten in the office of Prem Arora by Prem Arora, Anil Jat, Raju and Pankaj. He further said that his condition was very precarious and he may not survive. He requested us to take care of the mother". In his subsequent deposition dtd. 16.04.2010, this witness deposed that "accused persons Anil Jat, Prem Aora, Raju and Pankaj Goel gave merciless beatings to him in the office of accused Prem Arora. He further told Mein Shayadh Na Bach Pau. Maa Ka Khayal Rakhna".
8.6 The first mention about the so-called dying declaration of the deceased made to PW1 Anil Arora and PW3 Sunil Arora, finds mention in the statements dated 25.04.2007 of these two witnesses and not prior to it, even though the alleged dying declaration was made on the night of 14.4.2007 sometime after 10.00 PM.
8.7 Both, Anil Arora and Sunil Arora admit their signatures on a statement dated 16.4.2007 which is proved as Ex.PW12/DA. These two witnesses also admit that their names and dates on this Ex.PW12/DA are in their hand writing. In this statement, there is not even a single word mentioned that the deceased made any dying declaration to these witnesses. All that is mentioned in this statement is that the condition of deceased was serious and the witnesses were under stress and were not in a position to give any statement. It is also mentioned in the SC no. 41/13 Dtd... 16.03.2015 Page 29 of 45 30 statement Ex.PW12/DA that after enquiring from the deceased, whenever he regains consciousness, statements would be given by the witnesses. Thus, in the first statement of these two witnesses, not only there is no mention of any dying declaration but also according to this statement they had not enquired from the deceased since the deceased was not conscious.
8.8 These two witnesses tried to disown this statement Ex.PW12/DA, claiming that ASI Jai Hind Singh had obtained signatures of these witnesses on blank papers. Let us see whether the claim of the witnesses that ASI Jai Hind Singh had taken their signatures on the blank papers is sustainable or not.
8.9 It was in statement dated 25.04.2007 that it was claimed that the signatures of these witnesses were obtained on blank papers. But then, there is another statement of Sunil Arora dated 24.4.2007, which is also not denied by Sunil. Rather cross examination of Sunil PW3 would reveal that Sunil Arora admits this statement, though he claims that this statement was not read over to him by ASI Dilip Kaushik. Thus, the statement dated 24.4.2007 was recorded by another police officer and not by ASI Jai Hind Singh. In this statement dated 24.4.2007, Sunil Arora mentioned that when he and his brother Anil reached MCDH, Sachin was on ventilator. There is not even a single word mentioned in the statement that Anil and Sunil could speak to Sachin or that ASI Jai Hind Singh had taken signatures on blank papers. There is no mention of any kind of dying declaration, in this statement. It is also nobody's SC no. 41/13 Dtd... 16.03.2015 Page 30 of 45 31 case that even ASI Dilip Kaushik was in league with the accused, as is claimed qua ASI Jai Hind Singh. Therefore, ASI Dilip Kaushik had no apparent reason to improperly record the statement of Sunil Arora. The fact mentioned in the statement dated 24.04.2007 of Sunil Arora that Sachin was on ventilator and was in Coma is inconsistent with the fact that Sachin made any statement to Sunil and Anil.
8.10 PW1 Anil and PW3 Sunil also admit that two complaints were given to DCP, West District, one by their mother Santosh Rani and another by Sunil Arora dated 23.4.2007 and 27.6.2007, respectively, Ex.PW3/DA and DB. In these two complaints also, there is no mention that ASI Jai Hind Singh took signatures of these two witnesses on blank papers. Thus the claim of obtaining of signatures on blank papers is uninspiring.
8.11 In the MLC of Sachin from MCDH, it is mentioned that the deceased was admitted in MCDH at 9.55 PM on 14.4.2007. The MLC Ex.PW18/A records that when the patient was admitted in the hospital, he was conscious but drowsy. His extremities were cold and his pulse rate was not palpable. He was administered 'secure airway'.
8.12 PW11 Dr. Anil Kumar Gupta who operated Sachin deposed that Sachin was operated at around 11.30 PM on 14.4.2007. The witness was questioned as to how the airway of patient was secured. Upon it, witness replied that an endotracheal tube was put into the wind pipe of patient which was put in immediately and when the airway was secured and patient was drowsy, it was almost impossible for SC no. 41/13 Dtd... 16.03.2015 Page 31 of 45 32 the patient to talk or speak. The witness also replied that in order to avoid fighting with tube the patient is also sedated in such cases. Thus, if Sachin was sedated and his airway was secured immediately, and when according to the doctor it was impossible for him to have spoken, particularly when he was drowsy, the fact that Sachin made dying declaration to his brothers gets shrouded with serious doubt, particularly when there is also delay in claiming alleged dying declaration.
8.13 None of the doctors examined in the matter deposed that patient was in a fit condition to make any statement. Rather, applications of ASI Jai Hind Singh Ex.PW12/A, C & D dated 15.4.2007, 16.4.2007 & 19.4.2007, all reveals that each time he asked the doctors as to the condition of Sachin, Sachin was declared unfit for statement. When none of the doctors deposed that Sachin was fit to give statement at the time when his brothers spoke to him in ICU, the dying declaration cannot be believed and acted upon. It is needless to repeat that before a dying declaration can be acted upon, the court has to be absolutely sure that the dying declaration was indeed made and also that the person making dying declaration was fit to make statement. Both Anil and Sunil admitted that when they reached MCDH, Sachin was already in ICU. Therefore, Sachin actually made that dying declaration is doubtful.
8.14 The dying declaration is also doubtful from another fact. Admittedly, Sachin was initially taken to Verma Nursing Home. He was admitted in SC no. 41/13 Dtd... 16.03.2015 Page 32 of 45 33 the said nursing home at 5 PM. Ex.PW21/A reveals that when Sachin was admitted in Verma Nursing Home at 5 PM, not only the attendants, but also the patient himself gave the history of fall from the stairs. At that time, Sachin was fully conscious and oriented to time and space, as is revealed from Ex.PW21/A. Sachin was again examined at 6 PM and it is mentioned that "patient feeling slightly better", in Ex.PW21/A. Similarly, at 7 PM it is mentioned that "patient has less pain". Thereby meaning that from 5 PM to 7 PM, patient Sachin was not only conscious, but he was also responding to the questions of the doctor concerned. Throughout this period, Sachin did not tell any doctor or staff of Verma Nursing Home that he was beaten by anybody. PW21 Dr. Inderjeet Verma who examined Sachin also deposed that Sachin was fully conscious and oriented and that the history was also given by the patient himself. When Sachin was conscious and he gave the history of injuries and on the contrary did not tell anything about beatings by the accused, the so-called dying declaration made to Anil and Sunil gets further shrouded in doubt. It may be mentioned that once Sachin was in a nursing home he had no reason to be afraid of accused any longer, if he had any such fear prior to it.
8.15 Once the court comes to a conclusion that the so-called oral dying declaration is doubtful, the same cannot be made basis for convicting anybody, and has to be rejected.
8.16 Thus, when the so-called eye witnesses to the incident gives a version SC no. 41/13 Dtd... 16.03.2015 Page 33 of 45 34 that the deceased had a fall on the stairs and the dying declaration is not believable, there is no direct evidence against the accused.
9. It may be mentioned here that PW10 Dr. B.N.Mishra who conducted the post mortem deposed that the deceased having fallen forcefully on the border of wall of the stairs and then rolling down the stairs cannot be ruled out. Thus, even medical evidence does not support the prosecution's case that the injuries on the deceased could not have been possible due to fall on the stairs. No subsequent medical opinion from any other doctor or medical board was taken by the prosecution to counter the view of PW10. It is contended on behalf of the complainant that it is a mystery as to when the doctor PW10 visited the crime scene and therefore his observation that the injuries on the deceased could have been due to fall from the stairs should not be believed. In the post mortem report, it is mentioned that photographs of the crime scene were available. Therefore, it cannot be ruled out that the said observation was made by PW10 from those photographs. Those photographs Ex.PW16/A-7 and 8 reveals the stairs where the incident occurred. Prosecution did not question PW10 about his visit to the crime scene or as to which particular vertical wall PW10 was referring to in his report. It may be possible that the witness was referring to the corner of stairs. Be that as it may there is no medical opinion contrary to the opinion of PW10 and therefore, this court has no material to observe that the opinion and findings of PW10 are false or unsustainable for any reason.
SC no. 41/13 Dtd... 16.03.2015 Page 34 of 45 359.1 Ex.PW11/A is a certificate issued by Dr. Anil Kumar Gupta (PW11) dated 20.4.2007, which states that the injuries on the deceased were caused by blunt force but the mode of the same cannot be ascertained.
9.2 So, there is no medical evidence contrary to the view of PW10 Dr. B.N.Mishra which could indicate that the deceased was beaten or that the deceased did not suffer injuries due to fall.
10. In absence of any direct evidence and the dying declaration, let us examine whether there is any circumstantial evidence sufficient to nail the accused. In this regard, complainant's counsel claims that the circumstances; that accused Anil and Raju came to the house of deceased at 12.30 PM on 14.4.2007; threatened the family; then the deceased went to the office of Prem Arora and did not return to the house; coupled with the fact that accused Raju called up and then delivered the Santro car at the house; no satisfactory answers were given by accused Anil Jaat and Prem Arora to the calls made by Anil Arora regarding Sachin and; also the fact that Sachin was admitted in the hospital by Prem Arora and others, should be enough to convict the accused.
10.1 PW1 Anil Arora and PW3 Sunil Arora both deposed that on 14.4.2007 at 12.30 PM when they were present in their house, both accused Anil Jaat and Raju came to their house, enquired about Sachin and then left threatening the family members of Sachin, including PW1 & 3. It is admitted by both PW1 & 3 that at the relevant time even their mother Santosh Rani was present on the ground floor of the house.
SC no. 41/13 Dtd... 16.03.2015 Page 35 of 45 3610.2 But when PW22 Santosh Rani was examined as PW22, she did not utter a single word about any such visit by these two accused or about any such threat extended by these two accused.
10.3 Again there is no mention of any such visit or threat by the accused in the statement Ex.PW12/DA dated 16.4.2007 on which both PW1 & 3 signed by putting a date also along with their names. Had the accused extended any such threats to PW1 & 3 and other family members in the noon of 14.4.2007, wouldn't they have made a complaint to the police immediately about the threat extended, or particularly after they were not able to talk to Sachin on telephone and no satisfactory answers were given by accused, or at least after they reached MCDH after Sachin was admitted in the hospital in injured condition. Had it been true, the first thing which these witnesses, who are none other than real brothers of Sachin, would have done was they would have made complaint to the police at least in the hospital when the police arrived. It is admitted by these two witnesses that police met them in the hospital on 15.4.2007 i.e. In the intervening night of 14th & 15th April, 2007 in early hours. They however chose to remain silent.
10.4 In the rukka Ex.PW12/A, it is mentioned that when ASI Jai Hind Singh reached the hospital upon receipt of DD no.3B, the patient was unfit for statement in MCDH and Sunil Arora stated that he was not in a position to give statement. Had the incident of threat been true, Sunil and Anil Arora would have immediately made statements to the police. But they did not do it.
SC no. 41/13 Dtd... 16.03.2015 Page 36 of 45 3710.5 In the DD no.5 recorded by PW13 ASI Baljeet Singh, proved as Ex.PW13/B, it is mentioned that when this witness reached MCDH, the patient was under treatment in the operation theater. Admittedly, Anil and Sunil had reached MCDH before the police officials had arrived. Therefore, had the deceased made any dying declaration and had there been any incident of visit and threat by two of the accused, the witnesses would not have remained quiet till as long as 25.4.2007. It is in this statement dated 25.4.2007 that Anil Arora for the first time claimed visit of accused Anil and Raju to their house.
10.6 In the statement dated 24.4.2007 of Sunil Arora, it is mentioned that the visit and threat was made by Anil Jaat and Prem Arora and not by Anil Jaat and Raju. But in the statement dated 25.4.2007, witness Sunil Arora claimed the visit to be by Anil Jaat and Raju, thereby improving from his earlier statement that visit was by Anil Jaat and Prem Arora. Accordingly, even this circumstance that accused Anil and either accused Prem Arora or Raju went to the house of deceased and extended threat is not convincingly proved.
10.7 The circumstance that subsequently Raju telephoned Anil Arora and enquired as to where the car of Sachin should be dropped and then he dropped the car of Sachin to the house of Anil Arora and Sunil Arora is again not a circumstance which inculpates any of the accused. Raju claimed that after Sachin Arora had sustained injuries because of fall from stairs, he dropped the vehicle at the house of Sachin after enquiring about it from Anil Arora. Raju claims that he had informed Anil SC no. 41/13 Dtd... 16.03.2015 Page 37 of 45 38 Arora at the time of his call and also at the time when he dropped the vehicle that Sachin had fallen from the stairs and had been taken to the hospital. Had Sachin been beaten, the accused would not have created evidence against their own self by delivering the car. They could have simply left the car of Sachin anywhere. This circumstance is therefore not consistent with the guilt of accused, even if true.
10.8 Admittedly, Sachin was admitted in the Verma Nursing Home by Prem Arora and some others, but there is no clear evidence that those others were accused Anil, Raju or Pankaj. The history of fall given at Verma Nursing Home was that Sachin fell from stairs of his house, whereas even as per accused the fall was at office and not house. But then at that time Sachin was also fully conscious and oriented. He also did not give any counter version. Therefore, even this circumstance that instead of office, house was mentioned as the place from where the fall occurred is insufficient to indict accused.
10.9 So far as the claim of complainant that Anil Arora made calls to Prem Arora and Anil Jaat to know the status of Sachin, but no satisfactory reply was given and that the family members were not informed about the fall is concerned, the same even if assumed to be true, though may create suspicion against the accused, but is insufficient to find a judgment of guilt. It may be mentioned here that the accused persons claimed that they had informed the family members of the deceased whereas the family members claim that they were not informed. But then this fact alone is not sufficient to nail the accused. Presence of SC no. 41/13 Dtd... 16.03.2015 Page 38 of 45 39 accused Pankaj, Prem and Raju at the MCDH when PW1 & 3 reached there, also cannot be viewed with suspicion since admittedly these persons were known to Sachin from before.
10.10 The fact that prosecution tried to prove a communication between Anil Jaat and Sachin dated 13.4.2007 in which accused Anil threateningly claimed money is again insufficient to give a judgment of guilt in this case. PW20 Gaurav has denied his voice in the so-called recordings sought to be proved against accused Anil. PW20 Gaurav neither identified his own voice in the recordings, nor he identified voice of Anil. Voice of Anil was not got proved scientifically in the recordings dated 13.4.2007. Sample voice of accused Anil Kumar Jaat was not taken and sent to the expert. Though the witnesses PW1 & 3 claimed that the voice in the recording is of accused Anil Jaat but the accused denies it. The independent witness PW20 Gaurav did not identify the voice of himself or Anil Jaat in those recordings. Therefore, even the said circumstance cannot go against the accused. Even otherwise the said circumstance is unable to hold the accused guilty either individually or collectively with other circumstances discussed in this judgment.
10.11 The claim of complainant that at MCDH on the intervening night of 14th
- 15th April, 2007 the mobile phone of deceased was handed over by accused Prem Arora to Sunil Arora but the call details of that mobile were deleted from the instrument already, is not a circumstance proved beyond doubt in the present matter. That instrument was not sent for scientific analysis. That instrument was given by Sunil Arora to the SC no. 41/13 Dtd... 16.03.2015 Page 39 of 45 40 investigating officer belatedly. As per Ex.PW3/J, this mobile phone was handed over by Sunil Arora to investigating officer Inspector Ombir Singh on 13.07.2007 i.e. after almost three months of the incident.
10.12 The call detail records of the mobile phones are electronic records and though they are exhibited in evidence, but the certificate U/s 65B of Evidence Act is gravely lacking.
10.13 Very recently on 18th September 2014, a three judge bench of Hon‟ble Supreme court, in the a case of Anvar P.V Versus P.K Basheer and others, Civil Appeal No. 4226 of 2012, Decided on September 18, 2014, held as follows;
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having SC no. 41/13 Dtd... 16.03.2015 Page 40 of 45 41 lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
SC no. 41/13 Dtd... 16.03.2015 Page 41 of 45 42Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
.............................
Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
....................................
..................... An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
10.14 In absence of proper certificates U/s 65B of Evidence Act, the call detail records will have to be ignored. In any case, I have mentioned that merely from those call details guilt of accused is not established.
11. Complainant's counsel relied upon following eight judgments viz.,
1. Pakala Naraina Swami Vs. Emperor AIR 1939 PC 47, wherein dealing with Section 32(1) of Evidence Act 1872, it was held that SC no. 41/13 Dtd... 16.03.2015 Page 42 of 45 43 the statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed.
2. Lakhvinder Singh Vs. State of Punjab 1992 Cri.L.J. 3952, wherein it was held that testimony of an eye witness cannot be discarded merely because the witness is related.
3. Mohan Singh Vs. State of M.P. AIR 1999 SC 883, wherein it was held that mere variance of prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story and efforts should be made to find the truth.
4. State of U.P. Vs. Hari Mohan &Ors. 2001 Cri.L.J. 170, wherein the principles relating to appreciation of ocular testimony of witnesses and the circumstantial evidence in a criminal case, were discussed.
5. Prakash Chand Vs. State AIR 1979 SC 400, it was held that there is a distinction between conduct of a person against whom an offence is alleged, which is admissible U/s 8 of the Evidence Act, and the statement made to police officer.
6. Sharad Birdi Chand Sarda Vs. State of Maharashtra AIR 1984 SC 1622, wherein the scope of Section 32(1) was discussed in detail as also the conditions precedent for basing conviction on a case based on circumstantial evidence was discussed.
7. Patel Hiralal Joitaram Vs. State of Gujarat AIR 2001 SC 2944, wherein the scope of Sec. 32(1) was discussed and, SC no. 41/13 Dtd... 16.03.2015 Page 43 of 45 44
8. Mahavir Singh Vs. State of Haryana V (2014) SLT 571, wherein minor omissions and discrepancies were held liable to be ignored.
12. All the above mentioned judgments relied upon by the complainant are distinguishable and are not applicable to the facts & circumstances of this case.
13. The argument of the complainant that the accused persons did not prove as to where else they were present at the time of incident, if they were not present at the crime scene, is also without any force. First of all, it has not been established beyond reasonable doubt that the deceased was given beatings. Rather the eye witness account and the medical evidence are to the contrary. In a criminal case, the burden of proof is on the prosecution which is quite heavy. Suspicion however strong cannot take place of proof. The prosecution has to be prove its case beyond reasonable doubt. Prosecution cannot take advantage of weakness of defence. When a case is based on circumstantial evidence, all the circumstances sought to be proved are required to be established convincingly and also that when all the circumstances are taken together, they must point out towards guilt of the accused and must be inconsistent with the innocence of accused. In the present case some of the circumstances may though raise suspicion but are not enough to hold any of the accused guilty.
14. The sum & substance of the above discussion is that the dying declaration is not believable; the eye witness account of the case rather supports the version of accused and; the circumstances sought to be SC no. 41/13 Dtd... 16.03.2015 Page 44 of 45 45 proved against the accused are not satisfactorily proved and are unable to indict the accused, and therefore, obvious benefit has to go to the accused persons. Benefit of doubt therefore goes to the four accused and the four accused are acquitted of the charges.
Announced in the open court on 16th day of March, 2015.
Dig Vinay Singh ASJ/Spl.Judge : NDPS (N-W) Rohini Courts/Delhi SC no. 41/13 Dtd... 16.03.2015 Page 45 of 45