Delhi District Court
State vs 1) Surender Bhola on 30 November, 2012
IN THE COURT OF SH. LAL SINGH, ASJ-02/FTC, NEW DELHI
DISTRICT PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0311082008
Session Case No. 27/11
State Versus 1) Surender Bhola
S/o Sh. Pritam Lal,
R/o 7B/2, Toot Sarai,
Malviya Nagar, New Delhi. ...Accused
2) Sarvan Mehto,
S/o Sh. Parkash Mehto,
R/o Village Parra, PS Beerpur,
Distt. Begu Sarai, Bihar. ...Accused
(Since PO)
FIR No. 951/07
U/s: 302/419/201/34 IPC
PS: Okhla Industrial Area
Date of institution of the case : 22.04.2008
Case received by transfer to this court : 02.02.2011
Date when the case reserved for judgment : 26.11.2012
Date of announcement of judgment : 30.11.2012
JUDGMENT
1. On 29.12.2007, DD No. 3A was received at PS Okhla Industrial area regarding a dead body lying near TKD fort. Thereafter, Inspector State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 1/43 Z.H. Khan alongwith SI Shyam Sunder, ASI Satish, Ct. Ombir, Ct. Virender and other police officials went to the spot. On the spot, i.e. outside the wall of Tugalakabad fort near M.B. Road, opposite Air Force Station, a white colour plastic gunny bag (katta) was found lying near the wall of the spot and the mouth of the plastic gunny bag/katta was tied with a plastic tag and blood stained spots were visible from outside the plastic gunny bag/katta. The plastic gunny bag/katta was opened and it was checked, in which one red colour blanket, one blue colour shawl, one marigold jersey and one female dead body were found. The dead body was taken out from the gunny bag and it was laid on the blanket and examined and on examination injury was found on backside of the head of the dead body. There were also electric injury mark on the left hand palm and near elbow of left hand. The blood was already oozed out from the nose and mouth of the dead body. One red colour electric wire was wrapped over the neck and there was strangulation mark over the neck of the dead body. The deceased was wearing green and white colour printed clothes. On further examination of the dead body, one NCR No. 1399/07 dated 01.06.2007, PS Malviya Nagar, regarding lost of driving license of Abhishek Gujral was found kept inside the clothes on her breast. Two applications, one addressed to Commissioner of Police, Delhi and other addressed to ACP Arjun, Noida, which were written by the State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 2/43 applicant Sangeeta Patra, r/o M-73/A, Third Floor, Malviya Nagar and both the typed applications were found between the legs inside the underwear of the dead body. Thereafter, a rukka was sent through Ct. Omvir for registration of FIR and accordingly, FIR No. 951/07 was registered u/s 302/419/201/34 IPC. The crime team and govt. photographer were also called at the spot. The crime team had examined the spot and taken the photographs from different directions and the dead body was taken to the mortuary of AIIMS. Inspector Z.H. Khan seized the plastic gunny bag having blood stains, one plastic polythene, two pieces of yellow colour bangles, one blood stained blanket, one blood stained shawl, one jersey and prepared the pullanda of the same and pullanda was sealed with the seal of ZH. Inspector Z.H. Khan has also seized the blood stained earth, dried grass and three pieces of stones and two torn plastic polythene, one rough paper having blood stained. He also lifted the earth control from the spot. Inspector Z.H. Khan seized all the exhibits vide seizure memo Ex. PW 12/C and he also prepared the pullanda of the seized exhibits and sealed the pullanda with the seal of Z.H. From the spot tyre impression of vehicle were lifted with the help of plastic of parries (POP) and seized the same vide seizure memo Ex. PW 12/E. The deceased was identified as Lipika Patra @ Deepika Patra @ Sangeeta Patra, r/o VPO Chottu Sahana, District 24 Pargana, North State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 3/43 West Bengal, having its present address at M-73, 3rd Floor, Malviya Nagar, New Delhi. The postmortem of the dead body was conducted and thereafter, the dead body of the deceased was handed over to the relatives of deceased. During the course of investigation, accused Surender Bhola was arrested and his disclosure statement was recorded. Accused disclosed that near his house, Abhishek Gujral lives with his wife and in some distance, the brothers of Abhishek Gujral namely, Prince and Akshay and their sister Kinny Gujral lives alongwith their father. Accused further disclosed that he used to visit their house and he used to like Kinny Gujral, sister of Abhishek Gujral and he also gave Rs. 5 lacs to Akshay Gujral and Rs. 1.30 lacs to Prince Gujral and Abhishek Gurjal also taken from him Rs. 19,000/-. Accused disclosed that since he used to like Kinny, therefore, he used to give money to the brothers of Kinny Gujral. Abhishek Gujral did not like the meeting of accused with Kinni Gujral and he used to say Kinni to keep distance from accused. Accused also disclosed that the Kinni's family offered him to marry with Kinni but Abhishek Gujral had won over his family and snapped their relation and due to that he felt hurt and he wanted to take revenge with Abhishek Gujral. Accused further disclosed that he was planning to take revenge from Abhishek Gujral and one day when he was sitting in the house of Abhishek Gujral then he has taken the photocopy of DL of Abhishek State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 4/43 Gujral which was lying on the table and as per his plan NCR was prepared by him impersonating himself as Abhishek Gujral from Malviya Nagar, Police station. As per his plan accused also took the help of his servant namely Sarvan Mehto who used to meet one lady Sangeeta Patra. Accused further disclosed that during this period,the family members of Kinni solemnized the marriage of Kinni Gujral,with some one else and due to that accused felt more hurt. As per the plan, the servant of the accused called Sangeeta Patra who used to reside with one boy namely Santosh and on 28th December Sangeeta was called and written two letters on behalf of Sangeeta in which allegations were levelled against the Abhishek Gujral. Both the complaints were typed and one addressed to Commissioner of Delhi Police and other addressed to ACP Arjun, NOIDA. Sangeeta Patra was called to the office of accused at Khirki Extension and she was called inside the new shop and shutter of the shop was closed, thereafter, accused and his servant namely Serven had committed murder of deceased Sangeeta Patra and the typed complaint and NCR in the name of Abhishek Gujral were placed inside the cloths of the dead body of deceased Sangeeta Patra and dead body was put into a plastic gunny bag and accused in his vehicle taken the dead body towards TKD fort and after noticing that the place is deserted one, the dead body was thrown near the TKD fort and the shop was cleaned and State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 5/43 thereafter the vehicle was also cleaned by water, so as to destroy any evidence. Accused disclosed that he committed murder of deceased Sangeeta Patra so as to take revenge from Abhishek Gujral and his family. At the instance of accused, one ladies purse in which a slip written by Santosh, some money and photograph of the deceased, a stick and an electric wire which was used in the commission of offence were taken into possession. The Qualis vehicle no. DL2FAH-0025 was also taken into possession, report of I/C crime branch of photographs with negatives were obtained. After completion of the investigation, the charge sheet u/s 302/419/201/34 IPC were filed in the court against the accused Surender Bhola. Co-accused Sarvan Mehto could not be arrested and proceedings u/s 82/83 Cr.P.C was initiated against co-accused Servan who was declared as PO on 11.09.2008.
2. After compliance of the provisions of sections 207 & 208 Cr.P.C. Ld. MM committed the case to the court of session. Supplementary charge sheet against co-accused Sarvan Mehto was also filed. Co- accused Sarvan Mehto could not be arrested and he was declared PO.
3. After hearing Ld. Addl. PP for the state and Ld. defence counsel for the accused, charge u/s 302/34 IPC and 201/34 IPC was ordered to be framed against the accused Surender Bhola and accordingly, the charge was framed on 15.05.2008. Accused Surender Bhola pleaded not guilty State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 6/43 to the charge and claimed trial.
4. To bring home its case the prosecution examined twenty six (26) witnesses in all namely, PW 1 Abhishek Gujral, PW 2 Prince Gujral, PW 3 Akshay Gujral, PW 4 Sanjay, PW 5 Constable Shambhu Dayal, PW 6 HC Ram Avtar, PW 7 Dayanand Tyagi, PW 8 Constable Ombir Singh, PW 9 Dr. Sushil Sharma, PW 10 HC Rajvir, PW 11 ASI Satish Bhardwaj, PW 12 Inspector Jaswant Singh, PW 13 SI Mahesh Kumar, PW 14 HC Virender, PW 15 HC Hari Singh, PW 16 ASI Rajender Singh, PW 17 Constable Arvind, PW 18 HC Ram Chander, PW 19 Ajay Goel, PW 20 HC Premvir Singh Tomar, PW 21 Constable Ramesh Rathi, PW 22 Sh. V. Sankaranarayanan, PW 23 Parsuram Singh, PW 24 Santosh Kumar Hela, PW 25 Constable Anand and PW 26 Inspector Z.H. Khan.
5. PW 1 Abhishek Gujral deposed that he knew accused Surender Bhola since around year 2000 and accused was like their family friend. PW1 is having two elder brothers namely Akshay Gujral and Prince Gujral and one sister namely Kinni Gujral. Accused being the family friend used to visit the house of PW1 and they also used to visit the house of accused. PW1 stated that accused used to admire and appreciate his sister Kinni Gujral and even talks took place between accused and his mother and brother and accused wanted to marry with his sister. But PW1 did not like the proposal and he opposed the State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 7/43 proposal and since PW1 opposed the proposal and hence his parents decline the proposal / offer of the accused to get marry with the sister of PW1. Accused also knew about the reasons of denial of his proposal. PW1 deposed that he had a driving license and at no point of time, he misplaced or lost his license and he never lodged any report to the police for loss of his driving license. The driving license was later on seized by the police in the present case as there was non cognizable report (NCR) regarding the lost of the driving license of PW1, which was found on the dead body of deceased in the present case. PW1 further deposed that he has no idea, as to how that NCR came to be present on the body of the victim/deceased and he also does not know whose dead body it was. PW1 told to the police that he suspected accused Surender Bhola to be the person who could be responsible for this offence since he alone used to be a close visitor of their family. PW1 also stated that his brother Akshay had borrowed Rs.5 Lacs from accused and out of that he had return Rs.3.5 Lacs and accused had also given him a costly mobile instrument worth Rs.25,000/- as a gift but he returned the cost price of the mobile instrument to the accused by way of cheque in the sum of Rs.25,000/-. The sister of PW1 namely Kinni had got married on 04.12.2007 in Delhi.
6. PW 2 Prince Gujral identified the accused during trial and stated State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 8/43 that he had opened artificial jewelery shop in the year 2001 in the premises of JB5, Khirki Extension, Malviya Nagar and in front of that shop, accused was also constructing a building as he used to work as a builder. Thereafter, accused became friendly with PW2 and started visiting his shop and after sometime to his house. PW2 deposed that marriage proposal of his sister was initiated with accused but it could not be materialized. In the year 2007, PW2 also borrowed Rs.1,30,000/- from the accused and stated that he could not repay the said amount to the accused. PW2 stated that he has no idea, as to why marriage proposal of his sister could not be materialized.
7. PW 3 Akshay Gujral also identified the accused during trial and deposed that he became their family friend since 2001 till the date of occurrence. PW3 deposed that in the year 2003-2004, accused Surender Bhola alongwith his family member proposed for his sister Kinni Gujral for marriage and his brother Prince Gujral was ready with the marriage proposal of the accused, however, the younger brother Abhishek Gujral was not agreed for the said marriage proposal. PW3 also stated that in the year 2004, he had taken a sum of Rs.5 Lacs from the accused Surender Bhola and after some time he had returned a sum of Rs.3,50,000/- to him and remaining amount of Rs.1,50,000/- was yet to be paid. PW3 stated that the marriage proposal could not be materialized State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 9/43 as his brother Abishek Gujral was not ready for the said marriage proposal and as well as his sister Kinni did not like the accused in one or two meetings with the accused. Thereafter, the relations between Abhishek and accused were not cordial.
8. PW 4 Sanjay had identified the dead body of the deceased in the AIIMS mortuary on 03.01.2008 and regarding this, his statement was recorded vide Ex.PW4/A. Deceased Dipika @ Lipika Patra was cousin of PW4. After postmortem, the dead body of Dipika @ Lipika Patra was handed over to PW4 vide Ex.PW4/D.
9. PW 5 Constable Shambhu Dayal was DD writer in PS Malviya Nagar on 01.06.2007 and on that day, retired SI Dayanand Tyagi alongwith the accused came to him and SI Dayanand Tyagi told him that accused is known to him and driving license of the accused have been lost and a photocopy of the lost driving license was given to him to record a non cognizable report (NCR). PW5 stated that the photostate of driving license was in the name of Abhishek Gujral and being photocopy the photograph of driving license holder was not clear. PW5 recorded DD no. 13 regarding that NCR vide Ex.PW5/A and the computer print of NCR vide Ex.PW5/B.
10. PW 6 HC Ram Avtar was posted as Head Constable in PS Okhal Industrial Area and working as DO from 09:00 AM to 05:00 PM on State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 10/43 29.12.2007. On that day, around 09:10 AM, he received a wireless message that one dead body was lying near Tuglakabad Fort. He recorded this information vide DD No. 3A which is exhibited as Ex.PW6/A. At around 11:00 AM, he received a rukka from Inspector Z.H. Khan through Ct. Ombir and on the basis of that, he recorded the FIR in the present case vide Ex.PW6/B.
11. PW 7 Dayanand Tyagi deposed that he knew accused Surender Bhola and on 01.06.2007, he happened to be in the Malviya Nagar area, where accused Surender Bhola met him and asked for help to get a report lodged with police regarding lost of his driving license. Thereafter, PW7 accompanied with accused Surender Bhola to the PS and requested the duty officer Shambu Dayal to record his report. PW7 stated that he can not say what report and in what form that report was recorded in PS Malviya Nagar, as he left accused Surender Bhola there with duty officer and he himself left the PS. PW 8 Constable Ombir Singh joined SI Shyam Sunder to attend a DD call on 29.12.2007 and thereafter they reached village Tuglakabad. M.B. Road, Vayu Sena Bagh, Air Force Station and found a dead body of a lady lying there. Inspector Z.H. Khan also reached at the spot, who recorded rukka on DD No. 3A and on the direction of Inspector Z.H. Khan, PW8 took the rukka to PS and got the FIR registered in the present case and after that he handed over the rukka State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 11/43 and copy of FIR to Inspector Z.H. Khan.
12. PW 9 Dr. Sushil Sharma had conducted the postmortem of the dead body of deceased Dipika @ Lipika Patra on 03.01.2008 vide postmortem report Ex.PW9/A. PW9 deposed that as per the request of the IO, certain things encircled portion B of Ex.PW9/A were preserved and were sealed and handed over to IO.
13. PW 10 HC Rajvir was posted with PCR situated at Prahladpur on 29.12.2007 and at around 09:00 AM, they received a call regarding lying of dead body near Tuglakabad Fort. PW10 deposed that he reached the spot and where a gunny type plastic bag containing dead body of a female wrapped in a blanket was found and the dead body was tied with a red colour electric wire on the neck. He also deposed that nearby that white colour bag, a piece of paper was also lying which was a copy of Non Cognizable report (NCR). Thereafter, SHO also, PS Okhla Industrial Area was also arrived at the spot and PW10 handed over the NCR collected from the spot to him. During trial PW10 also identified the copy of NCR Ex.PW5/B which was lying nearby the dead body and later on seized by the SHO. He also identified the photographs marked Ex.PW10/A1 to Ex.PW10/A10.
14. PW 11 ASI Satish Chand had joined the investigation on 29.12.2007 alongwith the IO and they alongwith other police officials State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 12/43 reached the spot at 09:15 AM. PW11 deposed that on the spot, he saw white colour gunny type plastic bag, the mouth of which was tied and same was opened by the SHO and the bag was found containing the dead body of a female aged around 25 - 26 years. The dead body was taken out from that bag which was found wrapped in a blanket. PW11 stated that there was a injury mark on the back side of the head of dead body. NCR concerning a DL Ex.P5/B, one application addressed to Commissioner of Police Ex.PW12/A and another application addressed to the ACP Arjun Singh, NOIDA Ex.PW12/B were also found lying there. However, PW11 stated that he had seen abovesaid documents in the hands of IO and he can not say exactly from which particular place, they were found and recovered. Articles such as the blanket, stone pieces and woolen pullover were seized vide Ex.PW12/C. The tyre groove marks appearing on the road were lifted with the help of POP and seized the same vide Ex.PW12/E. During trial, PW12 identified the gunny type plastic bag in which the dead body was found vide Ex.PW12/P1. He also identified plastic string vide Ex.PW12/P2 by which the bag was found tied and also identified a pair of bangle golden colour as Ex.PW12/P3. PW12 also identified the blanket vide Ex.PW12/P4 and one woolen shawl vide Ex.PW12/P5. He also identified the woolen pullover vide Ex.PW12/P6 and photographs marked PW10/A-1 to PW10/A-10 which State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 13/43 were taken at the spot. During trial, PW11 also identified the stone seized from the spot vide Ex.PW11/P7 and two old plastic panni and some pieces of waste paper vide Ex.PW11/P8. He also identified plastic transparent small Jar containing loose soil / earth control lifted from the spot vide Ex.PW11/P9 and red colour electric wire stated to be wrapped/tied around the neck of the deceased vide Ex.PW11/P10. He also identified the tyre impression lifted from the spot vide Ex.PW11/P11 and Ex.PW11/P12.
15. PW 12 Inspector Jaswant Singh also joined the investigation on 03.01.2008 in the present case alongwith Inspector Z.H. Khan. PW12 deposed that they reached AIIMS, where the relatives of the deceased were also present and the postmortem of the body of the deceased was conducted and after postmortem, the pullandas duly sealed with Hospital seal were received by the IO through Ct. Arvind Kumar and same were seized vide seizure memo Ex.PW12/A and viscera box alongwith separate sample seal were seized vide seizure memo Ex.PW12/B.
16. PW 13 SI Mahesh Kumar reached on the spot alongwith IO on 19.01.2008 at the request of IO Inspector Z.H. Khan. IO took PW13 to the place of recovery of dead body and thereafter, the place of occurrence i.e Khirki Extension, Shop in J.E 6, Shopping Complex. Thereafter, at the instance of Inspector Z.H. Khan, he took notes of the State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 14/43 relevant facts on both the spots and also took the measurement and prepared the scaled site plan vide Ex.PW13/A and Ex.PW13/B.
17. PW 14 HC Virender also joined the investigation on 29.12.2007 and reached the spot at around 09:15 AM, where one plastic bag was found lying nearby the wall towards the fort. PW14 stated that bag was opened and a dead body of a female alongwith one blanket, one shawl and woolen pullover were taken out from the bag. PW14 stated that there was bleeding from the nose and mouth of the dead body and there were also burnt marks on the left hand palm and elbow and one electric wire around the neck of the dead body which appeared to have used for strangulation. He stated that one NCR from PS Malviya Nagar regarding loss of driving license and two applications, one addressed to Commissioner Delhi Police and another to ACP Arjun, NOIDA were also recovered from the body of the victim. He has also identified the photographs mark Ex.PW10/A1 to Ex.PW10/A10.
18. PW 15 HC Hari Singh joined the investigation on 06.01.2008 alongwith Z.H. Khan and SI Shyam Sunder and they reached Malviya Nagar area, where informer met them and after sometime accused Surender Bhola arrived there and the informer identified him, thereafter, he was apprehended. The accused was interrogated who gave his disclosure statement vide Ex.PW15/A and he was arrested vide State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 15/43 Ex.PW15/B. PW15 stated accused pointed out the place of occurrence, from where, one ladies purse, a danda, an electric wire were recovered and same were seized by IO Z.H. Khan vide seizure memo / pointing out memo Ex.PW15/E. PW 15 also deposed that accused got recovered the vehicle bearing no. DL2FAH-0025, which was used by him in throwing the dead body of the deceased. The seizure memo of the vehicle was prepared vide Ex.PW15/F and pointing out memo of the spot, where the dead body of the deceased was thrown was prepared vide Ex.PW15/D. During trial, PW15 identified wire Ex.P1 which was recovered from the office of the accused and wooden log / danda Ex.P2 also recovered from the office of the accused.
19. PW 16 ASI Rajender Singh, on 21.01.2008, on the instructions of the IO took the Qualis vehicle bearing no. DL2FAH-0025 from PS Okhla Industrial Area after getting it release from Malkhana and took it to FSL for forensic examination. He deposed that the vehicle was examined in FSL on the same day and he brought the vehicle back to PS on the same day evening.
20. PW 17 Constable Arvind deposed that the dead body of the deceased was removed from the spot on the instructions of the IO and he took the same to the mortuary of the AIIMS Hospital and thereafter, the postmortem of the dead body was conducted on 03.01.2008. After State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 16/43 postmortem, wearing cloths of the victim, a wire, blood of the victim in a gauze as sample and box containing some material with the seal of AIIMS was given to him and he brought all this material and handed over the same to the IO, who seized the same vide Ex.PW12/A and Ex.PW12/B.
21. PW 18 HC Ram Chander brought register no. 19 and proved the entry no. 4690 vide Ex.PW18/A, entry no. 3286 vide Ex.PW18/B and entry no. 3291 vide Ex.PW18/C. He also proved the RC No. 25/21 vide Ex.PW18/D, RC No. 26/21 vide Ex.PW18/E and RC No. 27/21 vide Ex.PW18/F.
22. PW 19 Sh. Ajay Goel, Ld. MM, conducted the TIP proceedings of the case property in the present case FIR No. 951/2007 and he proved the TIP proceedings vide Ex.PW19/B.
23. PW 20 HC Premvir Singh Tomar, on 21.01.2008, on the direction of IO took Qualis Vehicle bearing no. DL2FAH-0025 to FSL for inspection of the vehicle and after inspection of the vehicle, he brought the vehicle to the police station and handed over the same to the MHCM. PW 21 Constable Ramesh Rathi was handed over the copy of FIR of this case on 29.12.2007 by duty officer to deliver the same in the Court of Area Magistrate, DCP South and police head quarter and he delivered the copy of the FIR.
State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 17/43
24. PW 22 Sh. V. Sankaranarayanan deposed that on 25.01.2008, 11 sealed parcels were received in the office of FSL, Rohini in connection with the FIR No. 951/07, PS Okhla Industrial Area. He stated that he opened the said parcels and examined the exhibits biologically and he gave his detailed biological report vide Ex.PW22/A. PW22 further deposed that the said exhibits were also serologically examined by him and he gave his details serological report vide Ex.PW22/B.
25. PW 23 Sh. Parsuram Singh deposed that on 25.01.2008, six sealed parcels were received in FSL for examination. After examination of the the said exhibits, he prepared his report vide Ex.PW23/A.
26. PW 24 Sh. Santosh Kumar Hela deposed that deceased Dipika @ Lipika Patra was permanent resident of West Bengal, who told him that she was divorcee and having a small baby from her marriage and she was not having any permanent residence in Delhi. PW24 deposed that Dipika @ Lipika Patra requested him for staying in his rented room and on the basis of sympathy, he allowed her to live in his room. PW24 stated that Dipika @ Lipika Patra used to work his all home work including cooking food, washing cloths etc. and he was also having physical relation with her with their mutual consent. He further stated that Dipika @ Lipika Patra remained in his rented room for the period of three months. PW24 also stated that Dipika Patra was illiterate and one day she asked him to State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 18/43 give his address and he gave his address on a paper. PW24 identified photographs Ex.PW10/A1 to Ex.PW10/A10 and stated that these photographs are of Dipika @ Lipika Patra, who used to work as domestic help at his home. On 29.12.2007, police shown PW24 the photographs of the dead body of Dipika @ Lipika Patra and PW24 identified the photographs and disclosed the police that she was Dipika @ Lipika Patra, who used to work and stay at his rented room. Two photographs of deceased alongwith children and one piece of paper having address of house of witness Santosh Kumar Hela were shown to PW24 and PW24 identified two photographs vide Ex.PW24/P1 and Ex.PW24/P2 alongwith children was of deceased Dipika @ Lipika Patra, however, he could not identify the children alongwith deceased. He also identified the address written on the piece of paper vide Ex.PW24/P3. PW24 also identified white colour lady purse vide Ex.PW24/P6 as the same which deceased used to carry alongwith her. PW24 also identified the brown colour purse vide Ex.PW24/P7 and stated that deceased used to carry this brown colour purse also.
27. PW 25 Constable Anand accompanied his senior police officials HC Bheekhu to the spot i.e M.B. Road, Tuglakabad Fort, road side, where on the directions of his senior, he took ten photographs of dead body of the deceased. IO had collected the negatives and photographs on State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 19/43 05.02.2008 from PW 25. PW25 identified the photographs Ex.PW10/A1 to Ex.PW10/A10. He has also identified the negatives Ex.PW25/A1 to Ex.PW25/A10.
28. PW 26 Inspector Z.H. Khan is the IO of the case. On receiving of DD No. 3A, information regarding lying of a dead body near Tuglakabad Fort, he alongwith other police officials went to the spot on 29.12.2007, where one white colour plastic gunny bag was found lying near the wall of the fort in front of Vayu Sena Station. PW26 deposed that the gunny bag was tied with a tag and there was blood stains outside the gunny bag. PW 26 further deposed that he opened the gunny bag and from the said bag one red colour blanket, one blue colour shawl, one marri-gold jursy and one female dead body aged about 25-26 years were taken out. He deposed that there were injury marks at back side of her head and one red colour electric wire was found wrapped over her throat and there were strangulation mark over her neck. He further stated that there were electric injury marks on the left hand palm and near elbow of left hand. PW26 further deposed that on further examination of the dead body, he found one NCR copy of driving license in the name of Abhishek Gujral kept in her breast and two applications, one addressed to Delhi Police Commissioner and other addressed to ACP Arjun, NOIDA lying in the underwear of the deceased in between her private parts. PW26 lifted the State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 20/43 impression of tyre from the spot with the help of plaster of Paris and also called photographer of the crime team, who took the photographs. PW26 prepared the site plan Ex.PW26/PZ and made the endorsement vide Ex.PW26/A on DD No. 3A and prepared the rukka and got registered the FIR. PW26 seized the exhibits vide seizure memo Ex.PW12/C. He also seized the non cognizable report and two application recovered from the dead body of the deceased. The dead body was sent to the mortuary of the AIIMS Hospital. During course of the investigation, PW26 interrogated Santosh Hela, who revealed that the deceased was Sangeeta Patra @ Lipika Patra @ Dipika Patra, who used to live with him. PW26 also interrogated Abhishek Gujral and recorded his statement and Abhishek Gujral told to the PW26 that his entire family was against the marriage proposal of his sister Kinni with accused Surender Bhola and the marriage of his sister Kinni was solemnized with someone else and accused Surender Bhola had a grudge against his family due to break down of marriage proposal. PW26 also interrogated the brothers of Abhishek Gujral and recorded their statements. On 03.01.2008, parents of the deceased came to Delhi, who identified the dead body of deceased Sangeeta Patra. PW26 also prepared the inquest papers vide Ex.PW4/B. PW26 also got conducted the postmortem of the dead body of the deceased and after the postmortem dead body was State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 21/43 handed over to the relatives of the deceased vide Ex.PW4/D. PW26 arrested accused Surender Bhola vide Ex.PW15/B and took his personal search Ex.PW15/C and he also recorded the disclosure statement of accused Surender Bhola vide Ex.PW15/A. During the interrogation of accused Surender Bhola, he disclosed that he alongwith his servant Sarvan Mehto committed the murder of the deceased Sangeeta Patra. PW26 stated that accused Surender Bhola led to the police party to the place, where he committed the murder of deceased and PW26 prepared the site plan of the place of incident vide Ex.PW26/PS. PW26 also seized the articles recovered at the instance of accused Surender Bhola. PW26 got conducted the TIP of the case property. Accused Surender Bhola also got recovered one Qualis Car bearing no. DL2FAH-0015 from a vacant place at Khirki Extension and he seized the same vide Ex.PW15/F. PW26 also collected the postmortem report Ex.PW9/A and viscera report vide Ex.PW26/C. During trial, PW26 identified the case property and also identified the accused Surender Bhola.
29. In order to explain the circumstances appearing in the evidence, all the incriminating evidence has been put against the accused, while examining him U/s. 313 Cr.P.C. Accused pleaded that he is innocent and he has been falsely implicated in the present case by Abhishek Gujral in connivance and conspiracy with the then SHO PS Okhla Industrial Area, State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 22/43 retired SI Dayanand Tyagi, Ct. Shambhu Dayal and others. He also pleaded that he had gone to Orissa in connection with business with his elder brother and where he had fallen ill and he was under treatment from 25.12.2007 to 31.12.2007 in a Government Hospital at Aul. District Kendra Para, Orissa and came back to Delhi in the intervening night of 01/02.01.2008.
30. Accused also pleaded that he want to lead defence evidence and two defence witnesses were examined in this case. DW1 Dr. Manoj Kumar Senapati deposed that as per OPD register from October 2007 to 31st December 2007, patient Surender Bhola had been treated in the Hospital i.e Upgraded Primary Health Centre, Aul, Kendrapara, Orissa on 25.12.2007 and regarding his treatment entry was made in the OPD register at serial no. 6802 dated 25.12.2007 vide Ex.DW1/A. DW1 further stated that OPD ticket of patient Surender Bhola dated 25.12.2007 vide Ex.DW1/C is in his handwriting and bears his signatures. DW1 stated he advised the patient for hospitalization but the patient Surender Bhola refused to admit in the Hospital. Thereafter, DW1 advised accused to come to Hospital and take the injection daily in the Hospital for five days. DW1 deposed that OPD tickets of petitioner Surender Bhola dated 26.12.2007 vide Ex.DW1/D, OPD ticket dated 27.12.2007 vide Ex.DW1/E, OPD ticket dated 28.12.2007 vide Ex.DW1/F, OPD State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 23/43 ticket dated 29.12.2007 vide Ex.DW1/G are in his handwriting which bears his signatures. DW1 also deposed that the prescriptions given by him to patient Surender Bhola on 29.12.2007 and 30.12.2007 are on the back side of the OPD ticket dated 28.12.2007 and he has given the prescription vide Ex.DW1/G. The OPD ticket dated 31.12.2007 of Surender Bhola vide Ex.DW1/H is also in the handwriting of DW1. DW1 issued medical certificate to accused Surender Bhola on 31.12.2007 vide medical certificate Ex.DW1/J.
31. DW2 Inderjeet Singh Bhola is the brother of accused Surender Bhola who deposed that he alongwith accused Surender Bhola went to Odisha on 21.12.2007 in connection with some business activity. He further deposed that on 24.12.2007, his brother accused Surender Bhola complained high fever and on the next day i.e 25.12.2007, he immediately took his brother accused Surender Bhola to government Hospital at Aul. He stated that he noticed that condition of the Hospital was not hygienic and therefore, he made request to Doctor, it was not possible to admit the accused Surender Bhola in the Hospital as the condition was not hygienic in the Hospital and requested him to give medicines to accused Surender Bhola. DW2 further stated that he used to take his brother accused Surender Bhola to Hospital twice a day, as advised by the doctor from the period 25.12.2007 to 31.12.2007 and thereafter on the intervening State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 24/43 night of 01/02.01.2008, they came back to Delhi. He deposed that on 05.01.2008, around 10:30 PM, some police officials came to their house and inquired from them about the Abhishek Gujral and his family. DW2 further deposed that on 06.01.2008, his brother accused Surender Bhola went to PS Okhla Industrial Area and police officials of the said PS asked his brother to settle the matter with Gujral family, otherwise, they will implicate his brother in some false case.
32. I have heard the argument on behalf of state as well as on behalf of all the accused. On behalf of the state, Ld. Addl. PP submitted that accused Surender Bhola alongwith his servant Sarvan Mehto, who has been declared as PO, murdered the deceased, so as to implicate, PW1, PW2 and PW3 in the present case. He further submitted that accused Sarvan Mehto, the servant of the accused Surender Bhola was known to the deceased Dipika Patra @ Lipika Patra. He further submitted that accused Surender Bhola got recovered the wires from his office which has been tallied with the wire recovered and wrapped on the neck of the dead body of the deceased. He submitted that wire found at the neck of the deceased was matched with the wire recovered from the accused, as per PW23. Ld. Addl. PP further submitted that moulds of impression of tyres of the vehicle from the spot tallied with the moulds impression of tyre recovered from the accused, as per the CFSL report. He further State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 25/43 submitted that DW2 is an interested and false witness as he being the brother of the accused Surender Bhola, his statement is not trustworthy. Ld. Addl. PP further submitted that accused Surender Bhola had a grudge with the family of Abhishek Gujral as the family of Abhishek Gujral had turned down the marriage proposal of accused Surender Bhola with Kinni Gujral and therefore, the accused wanted to implicate Abhishek Gujral and his family in a false case and with this motive, accused placed the NCR in the name of Abhishek Gujral and two other applications in the dead body of deceased after committing murder of the deceased Dipika Patra @ Lipika Patra. He further submitted that the prosecution has succeeded in establishing the offence charge against the accused and accused is liable to be convicted.
33. On the other hand, Sh. Firoz Khan Gazi, Advocate for the accused submitted that as per the arrest memo, accused was arrested on 06.01.2008 at 09:00 AM but there is no date mentioned on the pointing out memo (fard nishandehi) Ex.PW15/D. He further submitted that as per DD No. 3A dead body of the deceased was detected on the side of the Tuglakabad Fort but as per rukka the dead body was found wrapped inside the gunny bag, therefore, the dead body can not be detected before it was opened. IO also stated that he has opened the gunny bag and found the dead body inside the gunny bag. Ld. Defence counsel State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 26/43 submitted that therefore, the entire case of the prosecution is demolished as there is no clarification that as to how the dead body was detected before the gunny bag was opened by the IO. He further submitted that PW2 and PW3 turned hostile and not supported the prosecution case and further PW1 specifically stated that he did not perceive any grudge entertain by accused against him. Ld. Counsel for the accused further submitted that the motive which is attributed to the accused is very week, which is clear from the testimony of PW1, particularly in the circumstances, when PW1 has categorically denied about the motive in the reply to the specific question. He submitted that to establish and prove the motive no positive evidence has been led by the prosecution. Ld. Counsel for the accused relied upon the judgment of Parag Dalmia vs. Special Director of Enforcement, Enforcement Directorate, 2012 (3) JCC 1967, wherein it was observed that the defence of an accused has only to be probable and he has not to prove his defence beyond reasonable doubt.
34. He also relied upon the judgment of Sampath Kumar Vs. Inspector of Police, Krishnagiri 2012 (2) JCC 1185, wherein it was observed that the motive may be an important circumstances in a case based on circumstantial evidence but can not take the place of conclusive proof that the person concerned was the author of the crime. One could State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 27/43 even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant but the suspicion, howsoever strong, also can not be a substitute for proof of the guilt of the accused beyond a reasonable doubt.
35. He further contended that there is contradiction in the testimonies of prosecution witnesses. He vehemently argued that IO has miserably failed to explain as to who gave information regarding the dead body and what efforts he did to trace out the person, who gave the information. He submitted that there is no eye witness as well as no last seen witness. Counsel for the accused further submitted that there is nothing on record which connects the accused with the commission of alleged crime. He submitted that accused has proved his alibi as the testimony of DW1 and DW2 is consistent and crystal clear. Counsel for the accused argued that it is evident from the statements of PW's that there were no tyre impression, when the photographs were taken. Further submitted that the impression of tyres have not been taken by the photographer PW25 nor any such impression of tyre is available in the photographs and also there is no mention of tyre imprint in the rukka stated to have had written at the spot by the IO after examination of the dead body and its surroundings.
36. Ld. defence counsel also relied upon the judgment of Riaz Ali vs. State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 28/43 State (Government of NCT ), Delhi 2012 (2) JCC 1092, wherein it was observed that the prosecution can not invoke and shift the burden of proof of innocence on the accused without proving an unbroken chain of circumstances, which points only to the guilt of the accused person.
37. Ld. Counsel for the accused submitted that the prosecution has failed to prove its case beyond reasonable doubts and accused is entitled to be acquitted.
38. I have heard the rival submissions and contentions made by the counsel for the accused and ld. Addl. PP for the state. I have also gone through the records of the case and carefully scrutinized the evidence on record. It is the case of prosecution that accused alongwith his servant Sarvan Mehto murdered the deceased Dipika Patra @ Lipika Patra, with the intention to implicate PW1 Abhishek Gujral and his family in the murder case, because, accused Surender Bhola was having grudge with the family of Abhishek Gujral, as the family of Abhishek Gujral turned down the marriage proposal of accused Surender Bhola with Kinni Gujral. It is also the allegations against the accused that the NCR in the name of Abhishek Gujral and two letters one addressed to Commissioner of Police Delhi and other addressed to ACP Arjun, NOIDA, which was found placed in the breast and private parts respectively of the deceased was placed by accused Surender Bhola, so as to implicate Abhishek in a State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 29/43 false case of murder. PW 11 did not say that those documents i.e. NCR and other two applications were found from the body of the deceased. Though the dead body was stated to be checked by the IO in the presence of PW 11.
39. PW1 Abhishek Gujral deposed that accused was like their family friend and accused used to admire and appreciate his sister Kinni Gujral. PW1 stated that since he was opposed the marriage proposal, hence, his parents declined the proposal of accused to get marry with his sister. PW1 also stated that accused also knew the reason for denial of his marriage proposal. PW1 stated that no point of time, he misplaced or lost his driving license and he never lodged any report to any police for loss of his driving license. PW1 stated that he does not have any idea, as to how that NCR of his driving license came to be present on the dead body of the victim / deceased. PW1 was not known to the deceased, hence, he did not identify the deceased, even when police had shown the photographs of the dead body of the deceased. During investigation, on being questioned, as to whom, he suspected to have created the NCR, PW1 pointed out to the police that he suspected accused Surender Bhola to be the person who could be responsible for this offence since, he alone used to be a close visitor of his family.
40. However, court question was put to PW1 that, was there any State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 30/43 occasion perceived by him that accused did keep any grudge against him and reason for that, and on this question, he replied that he did not perceive any such grudge entertain by accused against him. PW1 in his cross-examination, denied that he deposed falsely as he and his family member had borrowed lacs of rupees from accused and they had guilty intention of not repaying the borrowed money.
41. Therefore, there is contradiction in the testimony of PW1 as at one place he stated that he suspected accused Surender Bhola could be responsible for this offence of creating NCR of his driving license and on the other place he specifically answered to the court question that he did not perceive any grudge entertained by accused against him.
42. PW2 Prince Gujral stated that marriage proposal of his sister was initiated with accused but it could not materialized. PW2 stated that he borrowed the sum of Rs.1,30,000/- from accused and he could not repay the said amount to the accused. PW2 also stated that his brother Akshay also borrowed a sum of Rs.5,00,000/- from the accused and he repaid a sum of Rs.3,50,000/- to the accused. PW2 specifically stated that he does not have any idea, as to why the marriage proposal of his sister could not be materialized and he does not know about the relations between his brother Abhishek Gujral and accused Surender Bhola. PW2 was cross-examined by the Ld. Addl. PP for the state and in his cross- State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 31/43 examination, PW2 stated that he does not know that he and his brother Akshay were ready for the marriage of his sister Kinni with accused but his other brother Abhishek was not agreeable for the marriage.
43. PW3 Akshay Gujral stated that in the year 2003-04, accused Surender Bhola alongwith his family members proposed for his sister Kinni Gujral. PW3 further deposed that he and his brother Prince Gujral were ready for the proposal of accused to marry with his sister Kinni, however, his younger brother Abhishek Gujral was not agreed for the said marriage proposal. PW3 also stated that in the year 2004, he had taken a sum of Rs.5,00,000/- from accused Surender Bhola and after some time, he had returned a sum of Rs.3,50,000/- to the accused and remaining amount of Rs.1,50,000/- was not paid by him. He also stated that his brother Prince Gujral had also taken Rs.1,30,000/- from accused and had not paid the said amount to the accused. PW3 also stated that accused Surender Bhola has gifted mobile phone worth Rs.25,000/- to Abhishek Gujral but later on his brother Abhishek Gujral paid a sum of Rs.25,000/- to the accused, as accused told some unwanted things to Abhishek.
44. PW1, PW2 and PW3, all are brothers and there is contradiction in their testimony particularly regarding the marriage proposal of their sister Kinni Gujral with the accused. The prosecution case is that the accused was having grudge against PW1 Abhishek Gujral as he was State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 32/43 against the marriage proposal of his sister with accused and, therefore, accused wanted to implicate him in the false case and for that reason after committing murder of the deceased, accused placed the NCR of driving licence of PW1 in the breast of the deceased and two applications in between the private parts of the deceased. However, PW1 specifically stated that he did not perceive any grudge entertained by the accused against him. PW1 only stated that he suspected the accused Surender Bhola who have created the NCR as the accused alone used to be a very close visiting terms with his family. There is contradiction in the testimonies of PW1, as at one place he stated that he suspected accused for creating NCR and on the court question, he stated that he did not perceive any grudge entertained by accused against him. Even regarding the denial of marriage proposal of accused with Kinni Gujral, there is contradiction as PW1 stated that since he was opposed to the marriage proposal and hence, his parents declined the proposal of the accused to get marry with his sister, whereas PW2 Prince Gujral stated that he did not have any idea as to why marriage proposal of accused with his sister could not be solemnized, however, PW3 stated that he and his brother Prince Gujral were ready to the marriage proposal of accused with his sister Kinni Gujral and his younger brother Abhishek Gujral was not ready for the marriage proposal. Moreover, PW1 stated that accused did State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 33/43 not know the reason for his denial of marriage proposal of accused with his sister. Had it been so then there would have been no reason to have grudge against PW 1 by the accused.
45. In the offences based on circumstantial evidence, the motive assumes very important role. But in the present case, the motive as alleged by the prosecution against the accused is that accused committed the murder of deceased with the help of his servant, so as to implicate the PW1 Abhishek Gujral as PW1 declined the marriage proposal of accused with Kinni Gujral and therefore, accused created the NCR of PW1 and placed the same in the body of the deceased. This alleged motive of committing murder of the deceased was shattered by PW1 as PW1 stated that he did not perceive any grudge entertained by accused against him and as well as the accused also did not know the reason for his denial of proposal of accused to marry with his sister. Therefore, the motive of murder as alleged against the accused could not be established.
46. In the case of Dr. Mahender Singh Dhahiya vs. State (CBI), 2003 (1) JCC 218 (Delhi), wherein it was observed that when there is sufficient direct evidence, connecting the accused with the commission of offence, proof of motive becomes unimportant, but where the entire prosecution case rest on circumstantial evidence, motive undoubtedly plays an important part in such cases.
State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 34/43
47. In the case of Dasari Siva Prasad Reddy vs. The Public Prosecutor, High Court of A.P, 2004 (3) JCC 1243, wherein it was observed that a strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case.
48. In the present case, the name of the person who first gave information regarding the dead body of the deceased is not known and there is nothing on record as to who gave the information regarding the dead body. IO could not explain as to who gave the information regarding the dead body and what efforts he made to trace out the person who gave the information regarding the dead body of the deceased. In cross- examination of PW26 Inspector Z.H.Khan, he was asked the question whether he made any inquiry from the PCR as to who had given information regarding a dead body lying at Tuglakabad Fort. On this question, PW26 stated that he can answer about this only after going through the PCR form, and the witness was shown the record/judicial file but the PCR form was also not found on the record. Hence, it could not be established as to who first gave information regarding the dead body.
49. PW 23 Parshuram Singh, Sr. Scientific Officer in cross- State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 35/43 examination was asked whether he had given the report to the effect as to whether the plaster of paris appears to have been taken from the plain field or from the road and to this question PW 23 stated that he has not mentioned anything regarding this aspect in his report. PW 23 also in his cross-examination admitted that he cannot say as to how old the paris mould were when the same were put to him for examination. He also stated that he had not mentioned the thickness as well as condition of paris mould in his report. PW 23 also admitted in cross-examination that it is not possible to ascertain the exact period or time when the paris mould was prepared. He admitted that he had not mentioned in his report as to whether the paris mould was preserved by putting sponge materials in between them. PW 23 admitted in cross-examination that two wires in Ex. P.1 are slightly different in length as the wire having red colour is slightly around 1-½ inch longer than the wire which is in blue colour. PW 23 also admitted to the suggestion of defence counsel that Ex. PW 11/P-10 may be part of other bundle of the same company of same batch and same diameter. Therefore, the electric wire of red colour found around the neck of the deceased was not necessarily part of the alleged wire, recovered at the instance of the accused.
50. In the case of Vinay D. Nagar vs. State of Rajasthan, 2008 (2) JCC 1185, wherein it was observed that the principle of law is well State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 36/43 established that where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
51. In the case of Mousam Singha Roy & Ors. vs. State of W.B., (2003) 12 SCC 377, wherein it was held that before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victim in particular, by the fact that a heinous crime like this goes unpunished, but then the lax does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
52. Accused has produced defence witnesses so as to prove his alibi. State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 37/43 DW1 Dr. Manoj Kumar Senapati deposed that as per OPD register from October, 2007 to 31.12.2007, patient Surender Bhola had been treated in the Upgraded Primary Health Centre, Aul, Kendrapara, Orissa and he proved the OPD register dated 25.12.2007 vide Ex.PW1/A. DW1 also deposed that as per OPD ticket dated 25.12.2007, Surender Bhola was suffering from Furuncolosis with chest pain and high grade fever and he prescribed injection and medicine for the patient. DW1 also stated that OPD ticket of patient Surender Bhola dated 25.12.2007 Ex.DW1/C was in his handwriting and bears his signature. DW1 also stated that he advised Surender Bhola to come to the hospital and take the injection daily from the hospital for five days. DW1 also stated that patient Surender Bhola came to the hospital on 26.12.2007 to 31.12.2007 and he advised prescription, injection and medication etc. during this period. DW1 also deposed that the prescriptions on the OPD tickets, patient Surender Bhola was in his handwriting and bears his signature. DW1 was cross-examined at length by the Ld. Addl. PP. In the cross-examination, DW1 denied the suggestion that the OPD register brought by him is the new one and he also denied that the seal impression on the OPD register and writings on the OPD register seems to be fresh. In cross- examination, DW1 denied that document Ex.DW1/A, Ex.DW1/J were prepared by him at the request of the accused so that accused can be State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 38/43 saved from any legal proceedings. He also denied that all the entries in OPD register are appear to be fresh. In the testimony of DW1, it has come that accused was getting treatment from the hospital at Aul, Kendrapara, Orissa from 25.12.2007 to 31.12.2007. There is no reason as to why the positive testimonies of DW 1 should not be believed, particularly, keeping in view the fact that the treatment to the accused was stated to be given in the government primary health center.
53. DW2 is the brother of the accused also deposed that on 23.12.2007, they went to Jagannath temple at Puri and on 24.12.2007, they came back to Aul where accused Surender Bhola complained to him of high fever and on the next day 25.12.2007, he took his brother accused Surender Bhola to the hospital at Aul. DW2 stated that from 25.12.2007 to 31.12.2007, he used to take his brother accused Surender Bhola to the hospital twice a day as advised by the doctor and accused was taken to the hospital till 31.12.2007. In cross-examination, DW2 also denied to the suggestion that he did not get treatment of his brother accused Surender Bhola in the hospital as his brother never fallen ill at all. He also denied in cross-examination that on 29.12.2007, he alongwith his brother accused Surender Bhola were very much present in Delhi. Therefore, as per the testimony of DW1 and DW2, accused were stated to be in Orissa and during the period 25.12.2007 to 31.12.2007 was getting treatment State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 39/43 from Upgraded Primary Centre at Aul in Kendrapara, Orissa. It has also come in the testimony of DW1 that the above said hospital where accused was treated was a Government hospital. DW1 has proved the treatment of the accused during the above said period and he also brought the OPD register from October, 2007 to 31.12.2007. Despite of the cross-examination at length made by Ld. Addl. PP, the DW1 was categorical and consistent regarding the treatment given by him to the accused during the period 25.12.2007 to 31.12.007 and prosecution could not extract anything material in favour of the prosecution from the cross- examination of DW1 that the accused was not treated by DW1 at the Government hospital at Aul during the aforesaid period i.e. 25.12.2007 to 31.12.2007. Therefore, there is no reason why the positive testimonies of the defence witnesses cannot be believed. Moreover, it is well established law that the defence witnesses also deserves to be treated at par with the prosecution witnesses.
54. In the case of Dudh Nath Pandey vs. State of U.P., (1981) 2 SCC 166, wherein it was held that defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelieve in defence witnesses. Quite often, they tell lies, but so do the prosecution witnesses.
55. In the instant case, the motive, as alleged by the prosecution State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 40/43 against the accused could not be established, as PW 1 categorically stated that he does not perceive any grudge entertained by the accused against him. Moreover, as per PW 1, the accused did not know the reason for decline of proposal of marriage of the accused with Kinni Gujral. Hence, the motive of murder of the deceased, as alleged against the accused by the prosecution could not be established. There is no proper explanation as to who gave information regarding the dead body at the first instance. Further, regarding the NCR of driving license of PW 1 and other two applications, stated to be recovered from the dead body of the deceased, there is contradiction in the testimonies of PWs, stated to be present at the spot. PW 10 HC Rajvir stated that when he reached the spot he has seen a gunny type plastic white colour bag containing the dead body. PW10 categorically deposed that nearby that white colour gunny bag, a piece of paper, i.e. copy of NCR was lying and he handed over the copy of NCR to the SHO, however, as per PW 26 IO of the case, when he reached the spot he opened the white colour gunny bag and copy of NCR was found kept in the breast and two applications were found in the underwear of the deceased in between the private parts. PW 11also stated that NCR concerning driving license and two applications were found at the spot lying and he could not say from what particular place those documents were recovered. Therefore, there is State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 41/43 clear contradiction in the testimonies of PW 10, PW 11 and PW 26, regarding the opening of the white colour gunny bag, containing the dead body as well as recovery of NCR of driving license of PW 1 and other two applications from the spot. PW 10 stated entirely a different version than the PW 26 IO of the case, regarding recovery of copy of NCR of driving license. It is PW 10, who stated that he has given the copy of NCR of driving license to the IO, which was lying nearby the dead body. This glaring contradiction in the PWs regarding recovery of copy of NCR of driving license and other two applications from the spot has created strong doubt about the recovery of those documents from the spot and weakens the case of the prosecution. Moreover, the prosecution has also failed to established the complete chain of evidence in the present matter, which is very essential in the case based on circumstantial evidence. Otherwise also, the accused has produced defence evidence regarding his presence at Orissa and his treatment for illness there during the period when the alleged incident of murder of deceased had taken place at Delhi and despite of cross-examination of DW 1 at length, who treated the accused at Orissa at government hospital at Aul, Orissa, nothing favourable could be extracted in favour of the prosecution.
56. Therefore, keeping in view the above facts and circumstances and discussion, I am of the considered view that the prosecution has failed to State vs. Surender Bhola & Anr.
FIR No. 951/07Session Case No. 27/11 42/43 establish the case against the accused. Accordingly, the accused Surender Bhola is acquitted for the offence u/s 302/34 IPC and 201/34 IPC. Accused Surender Bhola is acquitted in this case. The previous bail bonds of accused Surender Bhola is cancelled and his surety is discharged. Accused to furnish bail bonds in the sum of Rs. 50,000/- with one surety in the like amount for the period of six months in terms of section 437 A Cr.P.C.
57. File be consigned to Record Room with a direction to reopen the same as and when co-accused Sarvan Mehto who has been declared proclaimed offender is rearrested or surrenders before the court.
Announced in the open court (LAL SINGH) on 30th November, 2012 ASJ-02/FTC, PHC/ND 30.11.2012 State vs. Surender Bhola & Anr. FIR No. 951/07 Session Case No. 27/11 43/43