Delhi District Court
State vs . on 7 August, 2010
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.68/10
FIR NO. 1440/02
PS Sultan Puri
Unique Case ID No. : 02404R1000602003
State
Vs.
1. Taj Mohd. @ Taju
s/o Sh. Shamsher Khan
r/o E4, Mangol Puri, Delhi.
2. Prabhu s/o Net Ram (since deceased)
Date when committed to the court of Sessions :07.07.2003
Date when case reserved for judgment : 03.08.2010
Judgment pronounced on : 07.08.2010
JUDGMENT:
1. The case of the prosecution in brief is that on 28.12.2002, on receipt of DD No.19B, ASI Azad Mohd. along with Ct. Tej Singh reached the spot situated at 100 ft wide road at Sector 2122, Rohini, Delhi, where he found a dead body of a male aged about 45 years lying inside a pit by the side of the road having injury with a sharp edged weapon on the neck and one Kailash Chand reached there who identified the dead body as that of his brother in law SC No.68/10 Page 1/27 namely Nanak Chand and got recorded his statement to the effect that his brother in law, the said deceased Nanak Chand, was a resident of F945, Mangol Puri, Delhi, who was having a Ration shop in EBlock, Mangol Puri and who was found missing since 4 p.m on 27.12.2002 regarding which a missing report was lodged at about 10 a.m at PS Mangol Puri on 28.12.2002 and that he came to know that one dead body was found in Sector 2122, Rohini, Delhi, having the same description as that of his brother in law and that was why he came to the said spot where he found the dead body and identified the same as that of Nanak Chand, his brother in law, who has been murdered by causing injury on his neck by some unknown person and on the basis of this statement the FIR was got registered.
2. The investigation was entrusted to Inspr. Sushil Kumar who got the photographs taken of the spot, prepared the site plan without scale, the crime team was summoned at the spot and exhibits were seized from the spot and the postmortem examination of the dead body was got conducted at SGM Hospital, Mangol Puri.
3. On 29.12.2002, accused Taj Mohd. was arrested in the case who made a disclosure statement to the effect that he owed money to the deceased and the deceased was demanding his money back again and again and as such he wanted to get rid of the deceased and that he along with his associate Prabhu (since expired and proceedings against him stood abated vide order dated 10.02.2005) hatched a plan to kill the deceased and on 27.12.2002, he along with his SC No.68/10 Page 2/27 associate Prabhu at about 4.30 p.m reached the Ration Office on his two wheeler scooter and the deceased Nanak Chand along with his son Rohit was found there and that they (the accused) took the deceased Nanak Chand on their scooter on the pretext of returning his money and the deceased sent back his son Rohit to his house from there and they along with deceased consumed liquor at Sector 21, Rohini, and thereafter they reached at 100 ft Road, Sector 2122, Rohini, where the deceased got stopped the scooter for urinating and when he was urinating near a pit by the side of the road, they pushed the deceased and accused Taju @ Taj Mohd. caught hold of the feet of the deceased and his associate Prabhu took out a shaving razor (Ustra) and gave the blow at the neck of the deceased and thereafter accused Taju took the Ustra from his associate Prabhu and gave blows with the same on the neck of the deceased due to which he died and thereafter they left the place on their scooter and after about half kilometer away, accused Prabhu threw the shaving razor at a kuchha place by the side of the road and that he could get recovered the said shaving razor and arrested his associate Prabhu.
4. On the basis of the said disclosure statement, the accused got recovered the said shaving razor and got arrested accused Prabhu (since deceased) and the said shaving razor was shown to the doctor who conducted autopsy and obtained his subsequent opinion with regard to the injuries found on the dead body of the deceased having been caused by the said shaving razor, the exhibits of the case were SC No.68/10 Page 3/27 sent to FSL, statements of witnesses were recorded and the charge sheet was filed against accused Taj Mohd. and thereafter the documents were seized which were in the handwriting of the deceased and same were sent to FSL for opinion of the handwriting expert and the result of the same was placed on the record. The accused Prabhu surrendered before the concerned MM, who was arrested in the case, who made a disclosure statement and pointed out the place where the weapon of offence was thrown and the spot of the incident and supplementary charge sheet was also filed against him.
5. On the basis of the said charge sheet and evidence on the record, my Ld. Predecessor vide his order dated 01.11.2004, framed a charge against both the accused u/s 302/34 IPC to which they pleaded not guilty and claimed trial.
6. The prosecution, in order to prove its case, has examined as many as 21 witnesses, relevant of which have been discussed in detail below.
7. The statement of accused Taj Mohd. was recorded u/s 313 Cr.PC wherein he denied the incriminating evidence against him and pleaded his innocence but did not prefer to lead any defence evidence.
8. I have heard Ld. APP for the state, Ld. Defence Counsel Sh. K.S. Rana, Adv for the accused and perused the record.
9. PW3 is the draughtsman who proved the scaled site plan as SC No.68/10 Page 4/27 Ex.PW3/A. PW4 is Ct. Rajbir, who accompanied ASI Azad Mohd. to the spot on 28.12.2002 and saw the dead body of the deceased in the said manner and he took the rukka to the PS and after getting the FIR registered, came back to the spot with the FIR and rukka and thereafter he took the copy of the FIR to the Ilaqua Magistrate. PW5 is the photographer who took the photographs of the spot and proved the same as Ex.PW5/1 to Ex.PW5/7 and negatives thereof as Ex.PW5/8 to Ex.PW5/14. PW6 Ved Prakash had identified the dead body of the deceased vide his statement Ex.PW6/A. PW7 is the Duty Officer who proved the copy of the FIR as Ex.PW7/A. PW8 is ASI Azad Mohd. who proved the recording of the statement of Kailash Chand on 28.12.2002 with regard to the said dead body and proved his endorsement on the same as Ex.PW8/A and sent the rukka for registration of the FIR and thereafter he deposed about Inspector Sushil Kumar Tyagi reaching at the spot to whom the investigation was entrusted and lifting of earth control, bloodstained earth from the spot vide memos Ex.PW2/B and Ex.PW2/E, seizure of one pair of sleeper Ex.P1, one glove Ex.P2, two ball pen Ex.P3, one match box Ex.P4 vide seizure memo Ex.PW2/C and the photocopy of the ration card recovered from the clothes of the deceased and its seizure vide memo Ex.PW2/F. PW9 is the doctor who conducted autopsy on the dead body of the deceased vide report Ex.PW9/A and he proved his subsequent opinion with regard to shaving razor, the sketch of which is Ex.PW9/B which was prepared SC No.68/10 Page 5/27 by the said doctor and he proved his opinion as Ex.PW9/C to the effect that injuries no.1, 2 and 3, as mentioned in the postmortem examination report Ex.PW9/A and found on the dead body of the deceased, could have been caused by the said shaving razor Ex.PX. PW10 is Ct. Tej Singh who accompanied ASI Azad Mohd. to the spot. PW12 is SI Satender Singh Rana to whom the investigation of the case was entrusted on 22.02.2003, who obtained the NBW against accused Prabhu (since deceased) and on 06.03.2003, he summoned the draughtsman and got prepared the scaled site plan Ex.PW3/A and he deposed about surrender of the deceased accused Prabhu before the court and his arrest. PW13 is the police official of PCR who received the information with regard to the said dead body on 28.12.2002 at about 10.50 a.m. and he reached the spot where he found the local police already there. PW16 is the Lady Constable who proved the copy of the DD No.19B dated 28.12.2002 as Ex.PW16/A. PW17 is the expert of the FSL who proved his report Ex.PW17/A regarding detection of the blood on the exhibits and serological report as Ex.PW17/B and the report of the Physics Division as Ex.PW17/C. PW18 is the handwriting expert from FSL Rohini who proved his reports Ex.PW18/A1 and Ex.PW18/A2 and opined that the person who wrote the questioned writings Q1 to Q6 is the same who wrote the admitted handwriting i.e that of the deceased, marked A1 to A19. PW19 is the police official who deposited the exhibits of the case to FSL, Malviya Nagar. PW20 is SC No.68/10 Page 6/27 the police official was dropped because he was the witness of the fact of arrest of accused Prabhu who had already expired.
10. PW1 Rohit is the son of the deceased who deposed that his father was running a shop at E731, Mangol Puri, Delhi and accused Taju @ Taj Mohd. was also running a Ration shop at EBlock, Mangol Puri, and that his deceased father had given a loan of Rs.1,50,000/ to the accused Taj Mohd. and his father had also given a loan of Rs.2025 thousand and again said some loan to accused Prabhu also and that he went to the ration office on 27.12.2002 in O Block, Mangol Puri at 4.30 p.m and saw his father, the accused Taju and Prabhu standing there and he asked his father to come home since that day was his (the witness) Birthday, on which all the said three told him that his father would come after some time and thereafter his father along with both the accused went on a two wheeler scooter which was being driven by accused Taju and his father was sitting behind him and Prabhu was sitting behind his father and that when his father did not return back, then at about 11 p.m he went to the house of accused Taju who met him at his house and told him that he dropped his father at the Bus Stand of BBlock, Mangol Puri and that on the following day at about 10 a.m, he lodged a missing report regarding his father at the PS where he had gone along with his uncle (Fufa) (the husband of sister of the deceased) namely Kailash Chand, his maternal grand father Sh. Ved Prakash and some people of the locality. He further deposed that SC No.68/10 Page 7/27 after about half an hour, two policemen came at his residence and informed that SHO was calling someone at the PS and in response to the same, his said uncle Kailash Chand went along with police officials and after sometime he came to know that his father was no more and his dead body was lying at Sector 2122, Rohini, which was identified by his said relative Kailash Chand.
11. In his cross examination, PW1 replied that he was in class IX at Prince Public School, Budh Vihar, at that time and thereafter he left his studies and that the school timings were 8 a.m to 2 p.m and he used to go to school by bus. He further replied that after coming from the school he used to sit at the Ration shop which was situated at the ground floor of the house and prior to the said time his mother used to sit at that shop and sometimes he along with his mother used to sit on the said shop. He replied that he came to know regarding missing of his father around 8 p.m or 9 p.m on 27.12.2002 and that he left for ration office around 4 p.m and that their ration shop, on 27.12.2002, was closed between 3 p.m to 7 p.m and that he did not go to school on 27.12.2002 and that he went to ration office at 4 p.m to call his father from the ration office and he was at home at about 8 or 9 p.m and that he searched for his father along with one neighbour namely Laxmi Narayan and his mother was searching for his father along with one neighbour namely Ved Prakash. He did not remember as to when his father had given loan of Rs.1,50,000/ to accused Taj Mohd. but it was written in a note book. He admitted SC No.68/10 Page 8/27 that the said loan was not given to accused Taj Mohd. in his presence. He further replied that he became of 17 years of age when his father was found missing from the house. The distance between ration shop and his residence could be covered within ten minutes. He was confronted with his previous statement Ex.PW1/DA where the fact of asking by him to his father to come to the home soon due to his Birthday on the said day, was not found mentioned. The fact of accused Taju driving the scooter, his father sitting behind him and Prabhu sitting behind his father was also not found mentioned in his previous statement Ex.PW1/DA, but it was mentioned that his father left with Taju and Prabhu on their scooter. He further replied that he was not informed by his father as to for what work his father was going to ration office. He further replied that he did not go inside the ration office but remain sitting on a Tea shop outside the ration office for about two hours. He further replied that he did not tell his mother that he had seen his father going with the accused because his mother was not at home at that time who had gone to her father's house and came back at about 6.30 or 7 p.m on 27.12.2002 when he informed her regarding his father standing with accused and had gone with them. He was further confronted with the missing report lodged at the PS Ex.PW1/D2 where it was not found mentioned that the deceased had left along with the accused on their scooter. He was further confronted with the said missing report Ex.PW1/D2 where the fact that he had accompanied his father to the ration office SC No.68/10 Page 9/27 was not found mentioned.
12. PW2 Kailash Chand deposed about lodging of missing report regarding the deceased Nanak Chand and identifying the dead body on 28.12.2002 vide his statement Ex.PW2/A, seizure of pair of chappal, two ball pens, glove, match box, vide memo Ex.PW2/C, the seizure of earth control vide seizure memo Ex.PW2/D, blood earth control vide memo Ex.PW2/E and seizure of photocopy of the ration card from the clothes of the deceased vide memo Ex.PW2/F.
13. In his cross examination, he replied to a court question that he had come to know about missing of Nanak Chand, the deceased, on 28.12.2002. In his cross examination on behalf of the accused, he replied that mother in law of the deceased who was living in Madi Pur, came in the morning of 28.12.2002 to his house and informed that deceased was missing.
14. PW11 Smt. Meera Vijay is the wife of the deceased who has deposed that her husband, the deceased, used to run a ration shop and accused Taj Mohd. and deceased accused Prabhu used to work at the ration shop of her husband but again said the accused were not working at the shop of her husband, rather they were known to her husband who used to visit the shop of her husband and that accused Taj Mohd. used to run a committee (a kind of Chit Fund) and her husband had purchased a committee of Rs.1 lakh from accused Taj Mohd. and he used to subscribe to that committee of Rs.1 lakh and that her daughter was to be married on 10.12.2001 and that her SC No.68/10 Page 10/27 husband asked the accused Taj Mohd. to return the amount of the committee but the accused did not return the money and that her husband had given a loan of Rs.1 lakh to accused Taj Mohd. and her husband had also given wheat and rice of Rs.30,000/ on credit basis to accused Taj Mohd. and thus, the accused Taj Mohd. was to pay Rs.2,30,000/ to her husband. She further deposed that her husband had also given a loan of Rs.20,000/ to the deceased accused Prabhu and that one week prior to 27.12.2002, she was suffering from Typhoid and at that time her husband told her that accused Taj Mohd. and Prabhu had informed him that they would return back the aforesaid amount but she again deposed that her husband told her that accused Taj Mohd. had informed her husband to pay Rs.1 lakh more to the accused and thereafter the accused would return back the entire amount. She further testified that it was the Birthday of her son Rohit on 27.12.2002 and her husband was present at his house at about 2 p.m and that accused Taj Mohd. and Prabhu came to her house and her husband had accompanied both of them for going to the office of ration department and thereafter her husband did not return back till 10 p.m and she had sent her son Rohit to the house of accused Taj Mohd. who returned back from the house of the accused and informed her that neither accused nor her husband was present at the house of accused Taj Mohd. and that she again sent her son Rohit to the house of accused Taj Mohd. at about 11 p.m on 27.12.2002 but he returned back to inform her that her SC No.68/10 Page 11/27 husband and accused Taj Mohd. were not available at the house of accused Taj Mohd. She further deposed that on 28.12.2002, at about 6 or 7 a.m, accused Taj Mohd. present in the court came to her house and on enquiry accused Taj Mohd. told her that he was not aware as to the whereabouts of her husband and that on 28.12.2002, she had come to know that accused Taj Mohd. admitted before the police and other public persons that he and accused Prabhu committed the murder of her husband. She further deposed that she produced six photostat copies of the documents to the police on 10.12.2003 which were seized by the police vide memo Ex.PW11/A and that on 02.05.2004, the originals of the said documents were given to the police which were seized vide memo Ex.PW11/B and she identified six sheets of documents which were marked Q1, Q4, Q6 by the FSL and six original documents were exhibited as Ex.PW11/X1 to Ex.PW11/X6 which she identified to be in the handwriting of the deceased Nanak Chand.
15. She was cross examined on behalf of the State by the Ld. APP wherein she admitted it as correct that on the night of 26.12.2002 her husband had told her that accused had promised to return the amount on 27.12.2002. She admitted it as correct that she told the police regarding her husband going to the ration office Mangol Puri accompanied with her son Rohit and that her son Rohit had informed that both the accused told her husband to return the amount and both the accused had taken her husband on a scooter and her husband was SC No.68/10 Page 12/27 made to sit on the scooter in between the two accused at 4.30 p.m.
16. My Ld. Predecessor had clarified from the witness regarding her two stands that on 27.12.2002 the accused and the deceased had gone from her house and the deceased did not return back and in the second statement she deposed that on 27.12.2002 in the evening time, her husband and her son had gone to the ration office where accused Taj Mohd. and Prabhu met the deceased and had taken the deceased on a two wheeler scooter and my Ld. Predecessor had asked as to which of the said two statements is correct to which the witness replied that her both statements were correct.
17. In her cross examination on behalf of the accused, she was confronted with her previous statement Ex.PW11/DA where there was no mention of demand of money by the deceased to be returned by the accused. She did not tell the police that accused Taj Mohd. had asked the deceased to give him Rs.1 lakh more and then the accused would return back the entire amount to the deceased. She further replied that police had not apprehended the accused Taj Mohd. in her presence. She further answered that the documents Ex.PW11/X1 to Ex.PW11/X6 were handed over to the police by her son and at that time she was not present at her house. She further replied that her husband did not use to talk to her about the income and expenditure but the deceased used to keep the account of the business of the shop. She further replied that her son Rohit returned back to the house at about 5 p.m on 27.12.2002 and she was SC No.68/10 Page 13/27 present in the house at that time as she was suffering from Typhoid. She further replied that she did not go outside the house to trace out her husband but at about 12 in the night intervening between 27th and 28th December, 2002, she and others had gone to the PS to report about the missing of her husband. She further replied that the house of accused Taj Mohd. was situated at a distance of about 5 or 10 minutes from her house and that she had gone to the house of accused Taj Mohd. to find out her husband after 12 in the night of 27.12.2002 and only she had gone to the house of accused Taj Mohd.
18. PW14 SI Gulshan Nagpal and PW15 ASI Prahlad are the recovery witnesses along with PW21, who is the IO of the case also. PW14 and PW15 have deposed that on a secret information on 29.12.2002, the accused Taj Mohd. was apprehended and arrested vide memo Ex.PW14/A and Inspr. Sushil Tyagi interrogated the accused who made his disclosure statement Ex.PW14/C and the accused Taj Mohd. led the police party to 100 ft road, Sector 2122, Rohini, near Petrol Pump and thereafter the accused led the police party to a place situated at a distance of 400 to 500 meters away from the place of incident where the accused had thrown the shaving razor and that they had searched for the razor which was found lying at a kuchha place and the blade of the razor was having bloodstains and sketch of the razor Ex.PW14/D was prepared which was sealed with the seal of ST and was taken into police possession vide memo SC No.68/10 Page 14/27 Ex.PW14/E and thereafter the accused led the police party to his house bearing No. E4, Mangol Puri, Delhi, from where one two wheeler scooter bearing registration no. DL4SW4414, make Bajaj Chetak was found which was seized vide memo Ex.PW14/F and thereafter they returned back to the PS and at the PS the accused handed over the shirt which he was wearing which was having bloodstains and was having light silver colour stripes and the same was again sealed with the seal of ST and that on the collar of the shirt the words "A True comfort Erroison Shirt" were written and same was seized vide memo Ex.PW14/G and they identified the shaving razor as Ex.PX, the shirt as Ex.PY and the scooter as Ex.PZ.
19. In their respective cross examination, for PW14 the disclosure statement of the accused was recorded by ASI Prahlad (PW15) on the dictation of IO while standing on the bonnet of the vehicle but PW15 answered that the disclosure statement of the accused was recorded by him on the dictation of the IO while sitting at the Mangol Puri Bus terminal. For PW14, the shirt of the accused was recovered by the IO when they started from his house and the same was seized at the time of reaching the PS whereas for PW15, the bloodstained shirt of accused and the scooter were recovered from the house of the accused at about 9 p.m in the presence of the witnesses.
20. PW21, the IO Inspr. Sushil Kumar deposed that during the investigation he prepared the site plan at the instance of complainant SC No.68/10 Page 15/27 Kailash Chand which is Ex.PW21/A and thereafter he deposed about photographs taken of the spot by the Crime Team, lifting of exhibits from the spot vide memos Ex.PW2/C, Ex.PW2/D, Ex.PW2/E and Ex.PW2/F, postmortem examination of the deceased, the seizure of exhibits given by the autopsy surgeon vide memo Ex.PW21/C. He further deposed that on 29.12.2002 at about 4.15 p.m, he along with other police officials during the investigation and upon a secret information arrested accused Taj Mohd. at about 6 p.m vide memo Ex.PW14/A, who pointed out place of incident vide memo Ex.PW21/B and pursuant to his disclosure statement, the shaving razor was recovered from a park at Sector 21, which was at a distance of half kilometer away from the place of occurrence which was bloodstained and sketch of the same Ex.PW14/D was prepared and was sealed with the seal of ST and was seized vide memo Ex.PW14/E and thereafter accused Taj Mohd. got recovered one scooter having the registration No.DL4SW4414 on which he took the deceased along with him and the same was seized vide seizure memo Ex.PW14/F and the accused produced his shirt of grey colour which he was wearing and was taken into possession after sealing the same with the said seal vide memo Ex.PW14/G and he further deposed that he obtained the postmortem examination report and took possession of photocopy of the account maintained by the deceased showing the money borrowed by accused Tajuddin from deceased vide memo Ex.PW11/A and on 02.05.2003 (inadvertently SC No.68/10 Page 16/27 the year has been mentioned as 2003 whereas it has been 2004), by the order of the court, he took into possession the original of the said account vide seizure memo Ex.PW11/B and originals of the said documents are Ex.PW11/X1 to Ex.PW11/X6 and that on 23.07.2004 he took the documents containing the specimen admitted handwriting of the deceased from Allahabad Bank i.e Account Opening Form, Specimen Signatures Form and 10 cheques in original and all the said documents were sent to FSL for comparing the handwriting of the deceased and report of the expert to that effect is Ex.PW18/A1 to Ex.PW18/A2 and he also placed the other FSL result on the record and the scaled site plan was got prepared which is Ex.PW3/A and he identified the pair of sleeper seized from the spot as Ex.P1, glove as Ex.P2, two ball pen as Ex.P3, one match box as Ex.P4, bloodstained earth and earth control as Ex.P5 and Ex.P6, the shaving razor as Ex.PX, the shirt of the accused Tajuddin as Ex.PY, the scooter as Ex.PZ.
21. In his cross examination, PW21 has replied that accused has tried to run away looking at the police party. He did not remember if the disclosure statement of the accused was recorded by him in his hand or by some other staff member on his dictation. He further replied that the shirt of the accused was seized after reaching at the PS and its seizure memo was also prepared at the PS. He did not remember if other shirt was arranged for the accused or not. He further replied that place of recovery was uneven and there was no SC No.68/10 Page 17/27 pit and that the seizure memo of Ustra was prepared while sitting in the Gypsy.
22. From the said evidence on the record and admittedly also, there is no eye witness to the murder of the deceased and case is resting on circumstantial evidence. The requirement of the law is that every link in the chain is to be established independently beyond reasonable doubt and thereafter all the links should form a complete chain pointing towards the guilt of the accused only and none else.
23. The first circumstance which has been tried to be established against the accused is the motive. As per the prosecution case, accused was to repay the loan amount to the deceased who was demanding his money again and again from the accused and that was why he was killed by the accused. In this regard, PW1 has deposed that his deceased father had given a loan of Rs.1,50,000/ to accused Taj Mohd. and some loan to the deceased accused Prabhu also. In his cross examination, he has admitted that he was a student of IX class when the deceased had expired. He further answered that he did not remember the date when his deceased father had given a loan of Rs.1,50,000/ to accused Taj Mohd. but it was written in a note book. He further specifically admitted that no money was paid by his father to accused Taj Mohd. in his presence.
24. The wife of the deceased, PW11 namely Smt. Meera Vijay, has deposed that accused Taj Mohd. used to run a committee (analogous to chit fund) and had purchased a committee of Rs.1 lakh SC No.68/10 Page 18/27 from accused Taj Mohd. and accordingly, he used to subscribe to that committee of Rs.1 lakh and the deceased had asked the accused Taj Mohd. to return the amount of the said committee and that her husband had given a loan of Rs.1 lakh to accused Taj Mohd. and her husband had also given wheat and rice of Rs.30,000/ on credit basis to the said accused. Thus, accused Taj Mohd. was to pay to her husband a sum of Rs.2,30,000/ and her deceased husband had also given a loan of Rs.20,000/ to the deceased accused Prabhu and that she was informed one week prior to 27.12.2002 by her husband that both the said accused had promised to return back the said amount but again said that accused Taj Mohd. had asked for Rs.1 lakh more as loan and thereafter he would return back the entire amount. She produced the original documents of account which are Ex.PW11/X 1 to Ex.PW11/X6, stated to be in the handwriting of the deceased. In her cross examination, she was confronted with her previous statement Ex.PW11/DA where the fact of the deceased demanded his loan amount back from accused Taj Mohd. was not found mentioned. She further admitted that she did not tell the police with regard to the fact of accused Taj Mohd. asking for Rs.1 lakh more and thereafter he would return the entire amount to the deceased. She further admitted that the original documents Ex.PW11/X1 to Ex.PW11/X6 were handed over by his son to the police and she was not present at that time at her house. She could not tell as to how many persons were given loan by her deceased husband except SC No.68/10 Page 19/27 accused Taj Mohd. She further replied that her husband did not use to talk to her about his income and expenditure but he used to keep the account of his business of the said shop.
25. The said documents Ex.PW11/X1 to Ex.PW11/X6 are in the handwriting of the deceased, as per report of the handwriting expert Ex.PW18/A1 and Ex.PW18/A2. I have gone through the said six documents. There are certain entries and at Ex.PW11/X1 at the top the word "Tajuddin" is written and against his name, above and below his name, the number "33,000/ 211, 20,000/ 2611, 50,000/ 16112001" is mentioned. Thereafter the number 1560 against which the alphabets "TB" is written and there are many numbers mentioned with the said alphabets TB on the same and against some entries the word "Gaihoon" (wheat) is mentioned. Again there are certain entries in Ex.PW11/X2 against which the words "Jama" (deposit) "TB", the word "committee" are mentioned. On Ex.PW11/X3, there are 10 numbers against 10 persons which are Radhey Shyam, Labhan Singh, Tajuddin, Panna Lal, Om Parkash, Taju Khan, Post, Munni Raju, Allahabad Bank, Lakhan Singh, are mentioned and on the Sl. No.11, no number is mentioned but name of Jagdish of DBlock is mentioned. Ex.PW11/X4 and Ex.PW11/X5 are piece of paper written on both the sides mentioning certain numbers and against the numbers the words Tajuddin, TB, 410, 1010, committee, 159, Jama 1810 and total has been shown as 21,455/ and on Ex.PW11/X5, certain sums have SC No.68/10 Page 20/27 been totaled. Ex.PW11/X6 is a very small unevenly cut piece of paper from a note book on which the number 20,000/ is mentioned against which the words "Taju Khan" is mentioned, the number 50,000/ is mentioned against the words "Lakhan Singh" and 25,000/ is mentioned against "Taju Khan". These all exhibits are not signed by the deceased who used to sign in English as per his admitted handwriting on Ex.PW18/1, Ex.PW18/2, Ex.PW18/3, taken from the bank.
26. Even if it is taken that Ex.PW11/X1 to Ex.PW11/X6 are written by the deceased, the said documents were rough kind of notes not fixing any liability of alleged loan towards anyone or not mentioning that the said numbers were in fact the amount outstanding against any of the persons mentioned in the said account or was it a record of some continuous money transaction for the purpose of memory of the deceased. One thing is very specific that name of the deceased accused Prabhu nowhere appeared in the said documents as per claim of PW1 and PW11 that the deceased had given some loan also to the said deceased accused. The said six documents are more or less memory papers and the same are not mentioning as to what amount was due and to whom and if at all any amount was due as loan.
27. In the said circumstances that PW1 specifically admitted that no loan was ever given in his presence to the accused and admission of PW11 that the deceased never discussed about his income and SC No.68/10 Page 21/27 expenditure with her coupled with the manner in which the said documents have been recorded, it cannot be inferred that any amount as such was due as loan against the accused. The alleged demand of the money by the deceased from the accused was an improvement before the court by PW11 as the said fact was not found mentioned in her previous statement. Hence, the motive as a circumstance has not been established on record beyond reasonable doubt.
28. Next is the circumstance of "last seen" and it has been alleged by the prosecution that the deceased was seen in the company of the accused before his death and these were the accused who took the deceased on their scooter on the pretext of returning the alleged loan amount to the deceased.
29. With regard to the said "last seen evidence", PW1 has specifically deposed in his examination in chief that on 27.12.2002, he went to ration office at about 4.30 p.m and saw the deceased i.e his father, the accused Taju and the deceased accused Prabhu and both the accused took the deceased on a two wheeler scooter which was driven by accused Taju and his father was sitting in between the said two accused on the said scooter and thereafter his father did not return back. It is an admitted case of PW1 Rohit that he got recorded a missing report vide DD No.10A dated 28.12.2002 at about 10 a.m at PS Mangol Puri and the said DD Ex.PW1/D2 was confronted with him wherein there is no mention of PW1 having SC No.68/10 Page 22/27 seen the deceased along with the said two accused on 27.12.2002 at about 4.30 p.m near Ration office. Further, the claim of PW1 Rohit is that from Ration office he came to his house but he did not tell his mother about the deceased going with the said two accused because she was not at home at that time as she had gone to his maternal grand father's house and his mother was out of the house was told to him by his sister and this deposition of PW1 is totally contradicted by PW11, the mother of PW1, who specifically answered that on 27.12.2002, when PW1 returned back at about 5 p.m, she was present in the house at that time as she was suffering from Typhoid.
30. Regarding the said circumstance, deposition of PW11 is very strange which even forced my Ld. Predecessor to put a court question to her regarding the "last seen evidence" because PW11 gave two versions, first is the version deposed by her that on 27.12.2002 in the evening time her husband along with her son Rohit had gone to the Ration office at Mangol Puri and from there both the accused took her husband, as told to her by her son the PW1. Second version deposed by her was that on 27.12.2002, the accused Taj Mohd. and the deceased accused Rohit came to her house and her husband, the deceased, accompanied them and thereafter he did not return back. My Ld. Predecessor asked the question as to which of the version of PW11 was correct to which she replied that her both the versions were correct. A falsity cannot be converted into truthfulness by repeating it again and again. A SC No.68/10 Page 23/27 bare reading of her deposition goes to establish that the said two versions cannot coexist together. Moreover, it is the specific case of PW1 and PW11 that they met accused Taj Mohd. on 27.12.2002 after 11 p.m when the accused disclosed to PW1 that he had dropped the deceased at Bus Stand of BBlock, Mangol Puri, but for PW11, neither accused Taj Mohd. nor her husband was found present at the house of accused Taj Mohd. as informed to her by PW1 when on 27.12.2002, PW1 visited the house of accused Taj Mohd. Further, the deposition of PW11 is that on 28.12.2002 at about 6 or 7 a.m accused Taj Mohd. had come to her house and on enquiry the accused informed her that he was not aware as to where her husband had gone. This deposition of PW1 and PW11 further goes to establish that accused Taj Mohd. was readily available and did not try to escape and if it was not so, then PW11 was deposing falsely about the non presence of the accused at 11 p.m on 27.12.2002 and further the availability of the accused Taj Mohd. has been proved by PW11 that on 28.12.2002 the accused himself visited her house. If the said cross examination of PW1 and PW11 is further read with care, it established that even the complainant Kailash Chand, PW2, was knowing about the alleged fact of deceased seen in the company of the accused before his death but in his complaint Ex.PW2/B, he did not whisper about any doubt over any person or the alleged theory of the deceased last seen in the company of the accused. Hence, the last seen theory is full of so many material contradictions SC No.68/10 Page 24/27 and is so unnatural that it cannot be said to have been established beyond reasonable doubt.
31. Next are the circumstances of the recovery of the razor, the scooter and the bloodstained shirt of the accused Taj Mohd. The said recoveries were effected pursuant to the disclosure statement. The recording of the disclosure statement in the manner as deposed in the examination in chief by PW14 and PW15 and PW21 becomes doubtful in view of the fact that there is a material contradiction with regard to recording of the disclosure statement in the respective deposition of said three witnesses. For PW14, the disclosure statement was recorded by the IO i.e PW21 while standing on the bonnet of the vehicle but for PW15, the disclosure statement of the accused was recorded by him at the dictation of the IO and same was recorded while sitting at the Mangol Puri Bus Terminal whereas for PW21, it was not in his memory as to whether the disclosure statement was recorded by him or at his dictation by some other staff member.
32. The recovery of the shaving razor (Ustra) is admittedly from an open place accessible to all and no public witness was joined in the investigation at the time of recovery of the said razor despite their admitted availability by PW14, PW15 and PW21. For PW15, it was recovered from Kuchha ground, 20 to 25 sq yards away from the main road which was lying in a pit and for PW21, there was no pit at the place from where the said shaving razor was recovered. SC No.68/10 Page 25/27 No site plan of the recovery of the shaving razor was prepared. The said shaving razor was allegedly bloodstained but the blood detected on the same could not be linked with the blood group of the deceased which was of "B" group as per FSL result Ex.PW17/B.
33. The recovery of the alleged bloodstained shirt of the accused Taj Mohd. which he was wearing at the time of the incident was again deposed with material contradictions by said three witnesses. For PW14, the shirt was recovered by the IO when they started from the house of the accused and the same was seized at the time of reaching the PS. For PW15, the said shirt of the accused was recovered from the house of the accused whereas for PW21, the shirt of the accused was seized after reaching the PS and its seizure memo was also prepared at the PS and he did not remember if other shirt was arranged for the accused or not. Further jolt to the deposition with regard to said shirt having bloodstains is given by the FSL result Ex.PW17/B which mentioned that no blood was detected on the said shirt. The recovery of the scooter is not very material because it is a thing having specific registration number and the accused has admitted the same to be in his name but it could not be linked otherwise by any other evidence on the record, as discussed above.
34. Thus, all the said links tried to be proved in the chain of circumstances against the accused individually could not be established beyond reasonable doubt and as such, it cannot be said SC No.68/10 Page 26/27 that they are the part of a chain exclusively pointing out towards the guilt of the accused having committed the murder of the deceased. As such, the benefit of doubt is extended to the accused who is acquitted of the charge u/s 302/34 IPC. He be released forthwith, if not wanted in any other case. The file be consigned to the Record Room.
(Announced in the open court on 07.08.2010) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.68/10 Page 27/27