Delhi District Court
State vs Ankit And Anr on 8 August, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, ASJ-04
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
CNR No.DLCT01-001666-2020
SC No. 68/2020
FIR No. 70/2019
U/s. 302/34 IPC
PS SRRS
STATE
vs.
1. Ankit
S/o. Sh. Ramesh
R/o. H. No. 486, Village Bakkarwala, Delhi.
2. Gautam
S/o. Sh. Karamveer
R/o. H. No. 13, Kachchi Sadak,
Balmiki Mohalla, Electric Pole No. C-25,
Mundka Village, Delhi.
Date of institution of case : 04.02.2020
Date on which judgment reserved : 27.07.2024
Date on which judgment pronounced : 08.08.2024
Decision : Acquitted
FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 1 of 58
JUDGMENT
1. In the present case, accused Ankit and Gautam have been charged and tried for the offence punishable under Section 302/34 IPC.
BRIEF FACTS OF THE CASE
2. The brief facts of the case are that the present FIR was registered under Section 302 IPC on DD no. 1A Ex. PW- 1/D, PS Sarai Rohilla dated 10.10.19 at 5.36 am vide which it was informed that the dead body was found on railway track having stab injuries. The deceased was identified as Gaurav @ Ghore.
3. The mother and sister of the deceased were not found at their home. At about 5 PM on 10 th October 19, on the basis of secret information accused Ankit was apprehended who was found wearing blood stained clothes and he also got recovered one blood stained knife from the bushes near closed railway crossing number 15. He disclosed that the names of his associates co-accused Gautam and CCLs. On 11th October 2019, raids were conducted at the addresses of the co-accused persons.
4. On 12th October 2019, the co-accused Gautam and two CCLs, surrendered in PS Sarai Rojilla and produced the weapons of offence i.e. three blood stained knives. All three of them got recovered their blood stained clothes from their respective houses.
FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 2 of 58
5. The statement of sister of deceased, namely Tanu was recorded under section 161 Cr. P.C. wherein she stated that on 9th October 2019, the accused persons Ankit and Gautam who were friends of her deceased brother Gaurav came to her house and her brother Gaurav went outside alongwith them.
6. The statement of mother of deceased namely Sunita was also recorded under section 161 Cr. P.C. wherein she stated that on 9th October 2019, when she returned from her work at around 7 PM, her daughter told her that Gaurav had gone along with his friends Gautam and Ankit and he has not returned yet.
7. After completion of investigation, charge-sheet was filed in the Court against both the accused Ankit and Gautam for the offence punishable under Sections 302/34 IPC. Separate investigation report against CCLs were submitted before the Principal JJB.
8. After complying with the provisions of Section 207 Cr.
P.C., ld. M.M. committed the case to the Court of Sessions.
CHARGE
9. The charge under section 302/34 IPC was framed against both the accused persons namely Ankit and Gautam to which they pleaded not guilty and claimed trial.
FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 3 of 58 PROSECUTION EVIDENCE
10. During prosecution evidence, in order to substantiate its case against the accused persons, the prosecution has examined total 22 witnesses.
11. PW-1 HC (now ASI) Vinod Kumar was the duty officer who recorded the FIR Ex. PW-1/A, made endorsement Ex. PW-1/B on the rukka and also gave the certificate u/s 65B Indian Evidence Act Ex. PW-1/C. He produced the DD register containing DD No. 1A and DD No. 11A dated 10.10.2019, as PW-1/D and Ex. PW-1/E respectively.
12. PW-2 Ms. Tanu is the sister of deceased Gaurav. She further stated that in the year 2015, she was studying in 11th class. She further stated that on 09.10.2019, she was not well so she had not gone to the school. Her mother namely Mrs. Sunita had gone for her private job in a factory at Mundka Industrial area. She further stated that at about 11:00 AM - 12:00 noon, accused Gautam and Ankit came to her house to call her deceased brother who was sleeping in the house. Accused persons knocked the door. She opened the door and saw that the accused persons were standing at the gate. They asked her to call her deceased brother outside the house. She told them that he was sleeping. Then, they asked her to awake him as they had some urgent work with him. She awoke her brother from his sleep. She further stated that her brother talked to the accused persons for some time and FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 4 of 58 thereafter, he left the house with the accused persons saying that he would come back after a short time. She further stated that she know accused Gautam and Ankit as they were the friends of her deceased brother and they used to visit their house to meet her deceased brother. She further stated that at about 8:00 PM, her mother returned home from her work and on asking of her mother about her deceased brother, she replied that the deceased was taken by the accused persons alongwith them and he did not return back home. She further stated that after waiting for sometime, her mother started searching for her deceased brother in neighbourhood but the neighbours told that they did not see him. Her deceased brother did not return even till the next morning. She further stated that on the next day, her mother left the house for her work and she went to her school. She further stated that at about 11:00-11:30 AM, police came to their house and made inquiries from the neighbours after showing the photographs of her deceased brother and the neighbours identified the photographs of her deceased brother. She further stated that those facts were told to her by the neighbours when she reached from her school. She further stated that her mother had already come to the house as she was informed by her aunts (tai and chachi) that her deceased brother had met with an accident. Her mother further told her that her deceased brother had met with an accident. Her other relatives had also come to their house. Her aunts knew that her deceased brother had been murdered FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 5 of 58 but they did not tell them this fact and they told her and her mother on the next day that her brother had been murdered. Again said, as all the relatives gathered at their house, so they were having idea that her brother is no more. She further stated that police of police station Sarai Rohilla Railway Station met them and recorded their statement. Police arrested accused Ankit and accused Gautam and CCLs 'R @ B' and 'A @ G' (witness told the complete names of the CCLs).
13. PW-3 Smt. Sunita is the mother of the deceased. She stated that deceased Gaurav @ Ghore was her son. She further stated that she was working in a factory in Mundka Industrial area. She further stated that in the year 2019, her daughter Tanu was studying in class 11 th. She further stated that on 09.10.2019 at about 8:00-8:15 AM, she left home for her job. On that day, her daughter Tanu had not gone to her school due to illness. Her daughter Tanu and her son Gaurav @ Ghore were at home, when she left for her job. She further stated that on that day, at about 8:00 PM, she came back to home from her job and saw that her son Gaurav @ Ghore was not at home. She asked about him from her daughter Tanu, who told that at about 11-12:00 noon, accused Ankit and Gautam had come to their house and they took her son Gaurav @ Ghore alongwith them. Her daughter further told her that they had told her that Gaurav @ Ghore would come back home within 10 minutes. She tried to search her son in the locality and asked from residents of locality if they FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 6 of 58 had seen her son Gaurav, who told her that they had seen Gaurav alongwith accused Ankit and Gautam. Witness correctly identified both the accused persons and stated that they used to come to her house being friend of her son Gaurav. She waited for her son but he did not return the whole night. On the next morning i.e. on 10.10.2019, she went to her job. Residents of her locality made a telephonic call on her mobile phone at about 10-10:30 AM, and told her that some police officials had come to her home and they had shown the photographs of her son Gaurav @ Ghore to them and informed that some mishappening had happened to her son Gaurav and he had died. She further stated that on this information, she immediately rushed to her house. Her brothers in law (dever and jeth) went to police station. Police officials informed them that dead body of her son would be handed over on the next day. She further stated that later on she came to know that accused Ankit and Gautam were arrested in this case. Some other boys were also arrested. Police officials came to her home on 11.11.2019 and recorded her statement.
14. PW-4 Dr. Gaurav Sharma, CMO, Hindu Rao Hospital deposed that he medically examined injured Ankit son of Ramesh vide MLC bearing no. 5088/2019 Ex. PW-4/A. On examination, there were old injuries on the person of Ankit which were treated on 10.10.2019 vide MLC No. 5064/2019. There was no external injury found on the person of Ankit.
FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 7 of 58
15. PW-5 Dr. Jyotsna, SR Paediatric Department, Hindu Rao Hospital stated that she had come to depose on behalf of Dr. Kumar Sambhav as MS of the aforesaid hospital has appointed her to depose on his behalf. Dr. Kumar Sambhav had left the hospital and his present whereabouts were not known to the hospital. She further stated that she had worked with Dr. Kumar Sambhav and she identifies the signature and handwriting of Dr. Kumar Sambhav, as she had seen him while signing and writing during the course of her official duties. She stated that the MLC No. 5073/2019 of Ankit s/o Ramesh is in the handwriting of Dr. Kumar Sambhav and the same is Ex. PW-5/A bearing his signature at point A.
16. PW-6 Dr. Rakesh Solanki, CMO, Hindu Rao Hospital stated that he had come to depose on behalf of Dr. Raj Syed as MS of the aforesaid hospital had appointed him to depose on his behalf. Dr. Raj Syed had left the hospital and his present whereabouts were not known to the hospital. He further stated that he had worked with Dr. Raj Syed and he identified the signature and handwriting of Dr. Raj Syed, as he had seen him while signing and writing during the course of his official duties. He stated that the MLC No. 5064/2019 dated 10/10/2019 of Ankit s/o Ramesh and MLC No. 5119/2019 dated 13/10/2019 of Gautam s/o Karambir were in the handwriting of Dr. Raj Syed and the same are Ex. PW-6/A & Ex. PW-6/B respectively, both are bearing his signatures at points A. FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 8 of 58
17. PW-7 Dr. Sachin Yadav, GDMO, Hindu Rao Hospital stated that he had come to depose on behalf of Dr. Sonal Bansal as MS of the aforesaid hospital had appointed him to depose on his behalf. Dr. Sonal Bansal had left the hospital and her present whereabouts were not known to the hospital. He had worked with Dr. Sonal Bansal and he identified the signature and handwriting of Dr. Sonal Bansal as he had seen him while signing and writing during the course of his official duties. He stated that the MLC No. 5098/2019 dated 12/10/2019 of Gautam s/o Karambir and the same is Ex. PW-7/A bearing his signatures at point A.
18. PW-8 Dr. Meenakshi, SR (Dental), Hindu Rao Hospital stated that she had come to depose on behalf of Dr. Aarti as MS of the aforesaid hospital had appointed her to depose on her behalf. Dr. Aarti had left the hospital and her present whereabouts were not known to the hospital. She further stated that she had worked with Dr. Aarti and she identified the signature and handwriting of Dr. Aarti as she had seen her while signing and writing during the course of her official duties. The patient Ankit was referred to dental department for medical examination vide MLC No. 5073/2019 dated 11/10/2019 and he was medically examined in the dental department by Dr. Aarti in the additional sheet which is Ex. PW-8/A bearing signature of Dr. Aarti at point A.
19. PW-9 Sh. Brijesh Kumar, Jr. Forensic/Asstt. Chemical Examiner (Bio), FSL, Rohini stated that on 10.02.2019, FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 9 of 58 he was posted as Jr. Forensic/ Asstt. Chemical Examiner (Bio) at FSL, Rohini, Delhi. On that day, he alongwith Sh. Jitender Jr. Forensic/Asstt. Chemical Examiner (Bio) and Sh. Prashant Sharma Lab Asstt. (photo) reached at railway track, down line near railway crossing No.14. He further stated that IO of the present case met him there. He inspected the spot and the blood was detected on stone pieces at five places and the same was lifted and handed over to the concerned IO. He prepared his detailed report as Ex. PW-9/A bearing my signature at point A.
20. PW-10 Dr. Prashant Sharma, Sr. Scientific Assistant (Photo), FSL, Rohini stated that on 10.02.2019, he was posted as Lab Asstt. (photo), FSL Rohini, Delhi. On that day, he alongwith Sh. Brijesh Kumar and Sh. Jitender Jr. Forensic/Asstt. Chemical Examiner (Bio) reached at railway track, down line near railway crossing No.14 where IO of the present case met them there. He further stated that he took 27 photographs from digital camera of the spot from different angles. On that day, he had brought 27 photographs which he had clicked and the same are Ex. PW-10/P-1 to P-27. His certificate u/s 65B Indian Evidence Act in this regard is Ex. PW-10/A bearing his signature at point A.
21. PW-11 Sh. Santosh Tripathi, Sr. Scientific Officer (Chemistry), FSL Rohini stated that on 02.12.2019, two sealed glass jars/ parcels were received in the office and the same was assigned to him for examination. He further FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 10 of 58 stated that seal on the exhibits were intact and tallied with specimen seal. He further stated that on opening of the parcels, parcel No. A-19 was found containing stated to be stomach and pieces of small intestine with contents and parcel No. A-20 was found containing stated to be pieces of liver, spleen and kidney. He further stated that on chemical examination, the exhibit A-19 and A-20 were found to contain ethyl alcohol. His detailed report in this regard is Ex. PW-11/A bearing his signatures at points A. The remnants were released with the seal of STY FSL DELHI.
22. PW-12 Retd. ASI (the then HC) Raj Kumar stated that on 10.10.2019, he was posted as HC in District Crime Team Rohini and was working as photographer. On that day, on the receipt of information, he alongwith SI Satyadev Incharge Crime team reached at the spot i.e. KM Pole No. 19-4/19-6, Delhi Line near Hind Vihar Railway Crossing Mundka side where IO Inspector R.N. Chaudhary with staff met them there. He further stated that one dead body was also lying at the spot and some stones, having blood were lying there and on the directions of Incharge Crime Team, he took photographs from different angles of the spot, the number of the photographs he did do not remember. The photographs were transferred in a pendrive and the IO transferred the photographs from the pen drive in this laptop. Mobile crime team FSL Rohini also came at the spot. IO recorded his statement. The 15 photographs on four FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 11 of 58 sheets placed on record are the same photographs which were clicked by him at the spot. The photographs are Ex. PW-12/P-1 to P-15 (colly). He had seen the SOC report prepared by SI Satyadev placed on record which bears the signature of SI Satyadev. He identified the handwriting and signatures of SI Satyadev as he had seen him writing and signing the documents during usual course of his duties. The SOC report is Ex. PW-12/A bearing his signature at point A.
23. PW-13 ASI (the then HC) Rajesh stated that on 10.10.2019, at about 5.40 a.m., he was present in the PS and HC Devender was also present in the PS. He further stated that IO/ SHO Inspector RN Chaudhary joined him and HC Devender in the investigation. They all left the PS in the policy gypsy and reached near Hind Vihar railway fatak where they saw a male dead body was lying at a distance of about 100 mtrs from the railway fatak No.14 towards Mundka side. He further stated that ASI Bhanwar Lal alongwith other police officer and Inspector Anand Prakash, SHO Prem Nagar were also present there. Since, the incident had happened within the jurisdiction of PS Sarai Rohilla Railway Station so the proceedings were conducted by the IO Inspector R.N. Chaudhary. SHO Prem Nagar and other staff left the place. IO called Crime Team and FSL Team at the spot. Crime Team and FSL team came at the spot and they examined the spot. Crime team lifted the blood stained small stones and handed over the same to the IO. Spot FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 12 of 58 was also photographed. IO converted the blood stained small stones into separate pullanda. SL. No.A1 to A5 were given to all the pullandas. Pullandas were sealed. But the seal impression, he did not remember. Pullandas were seized vide seizure memo Ex. PW-13/A bearing his signature at point A. Seal after use was handed over to HC Devender. ASI Bhanwar Lal took the dead body to Subzi Mandi Mortuary. They returned to police station. SHO got registered the FIR. He further stated that Inspector R.N. Chaudhary took the photographs of deceased in his mobile phone. The photograph of the deceased was shown to the public persons to fix his identity. The photograph of deceased was identified by the public person and the name of the said deceased was revealed as Gaurav @ Ghoda. It was also revealed that the deceased was the resident of Mundka Village at Finni Road. Thereafter, they went to the house of deceased. The house of the deceased was found locked. The neighbours were intimated by them that they were from PS Sarai Rohilla and thereafter, they returned to PS. He further stated that on the same day i.e. 10.10.2019 at about 12:30 PM, a secret information was received to the effect that Gaurav was seen by him at platform No.2 at Mundka Railway station about one hour ago. Thereafter, they alongwith secret informer went to the said platform. From there, the accused was apprehended. Witness again stated that it was accused Gautam who was apprehended from there. The said accused was taken to PS. The said accused was interrogated and during investigation, he FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 13 of 58 revealed the names of his two associates namely 'A @ G' and 'R'. In this regard, his disclosure statement was recorded vide disclosure statement Ex. PW-13/B bearing his signature at point A. The said accused was also arrested and personally searched vide memos Ex. PW- 13/C and Ex. PW-13/D respectively, both bearing his signatures at points A. He further stated that on 11.10.2019, he alongwith SI Vikram, HC Devender and accused Gautam went to Mundka village. From there, the accused 'A @ G' and 'R' were apprehended at the instance of accused Gautam. The Aadhaar cards and Ration cards were taken from the respective houses of 'A @ G' and 'R'. Thereafter, they returned to PS with the accused persons. As per the Aadhaar cards, accused 'A @ G' and 'R' were below the age of 18 years. He further stated that the Juvenile welfare officer (JWO) SI Vikram was intimated about 'A @ G' and 'R'. 'A @ G' and 'R' were taken before Juvenile Justice Board by SI Vikram. He further stated that accused Gautam led them to Mundka Railway station at Fatak No.15 and on reaching there, accused Gautam disclosed that the weapon of offence i.e. knife had been concealed under the bushes. In pursuance to his disclosure statement, accused Gautam got recovered the said weapon of offence from under the bushes. The sketch of said knife was prepared vide sketch Ex. PW- 13/E bearing his signature at point A. The said knife was taken into possession by preparing pullanda which was sealed with the seal of RN vide seizure memo Ex. PW- 13/F bearing my signature at point A. Thereafter, they FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 14 of 58 returned at PS where the case property was deposited was in the malkhana. Thereafter, he was relieved from PS. From PS, he went to Nangloi Railway Station. Witness correctly identified the accused Gautam. Witness also identified the case property i.e. knife recovered from accused Gautam which is Ex PW14/P-1. Witness was cross-examined by the ld. Addl. PP for State as the witness was resiling from his previous statement.
24. PW-14 Inspector (the then SI) Vikram stated that on 12.10.2019, he was called by Inspector R.N Chaudhary, the SHO of PS Sarai Rohilla Railway Station. HC Devender and HC Rajesh Kumar were also present in the PS. At about 4:00 PM, three boys namely Gautam, CCLs 'A@G and 'R@B' came to the police station for surrender and they had produced one knife to the SHO. The SHO seized the knife and deposited in the malkhana. IO also recorded the disclosure statement of accused Gautam and CCLs. He prepared the apprehension memos of CCLs. Thereafter, he alongwith the IO/ SHO, HC Devender, accused and CCLs reached at the spot i.e. railway DN line near phatak no.14, Hind Vihar where the accused and the CCLs pointed out the place of incident. Thereafter, they reached at the house of accused Gautam i.e. H. No.13, Balmiki Mohalla near pole No. C-25, Mundka, Delhi where accused Gautam produced his clothes i.e. white colour pant and black colour shirt stating to be worn by him at the time of incident. The clothes were converted into a pullanda, sealed with the seal of RN and FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 15 of 58 seized vide seizure memo Ex. PW-14/A bearing his signature at point A. The seal after use was handed over to HC Devender. Thereafter, they reached at the house of CCL A @ G i.e. H.No. 450, Garhiwali Gali behind Munda Metro Station where the CCL A @ G also got recovered his clothes i.e. blue colour pant and orange colour shirt. IO took back his seal from HC Devender and sealed the pullanda of clothes of CCL 'A @ G' and seized the same vide seizure memo. Seal after use was handed over to HC Devender. He further stated that thereafter, they reached at the house of CCL 'R @ B' i.e. H. No. 832, Old State Bankwali Gali, Mundaka where the CCL 'R@ B' got recovered his clothes i.e. blue colour pant and blue colour shirt. IO took back his seal from HC Devender and sealed the pullanda of clothes of CCL 'R @ B' and seized the same vide seizure memo. Seal after use was handed over to HC Devender. They returned to police station. All the exhibits were deposited in the malkhana. He produced both the CCLs before JJB and from where they were sent to observation home. IO recorded his statement. Witness correctly identified the case property.
25. PW-15 SI Bhanwar Lal stated that 10.10.2019, he was on emergency duty and present at PS Sara Rohilla. On that day, at about 5:36 AM, duty officer handed over him one DD No.1A regarding dead body lying near Hind Vihar Railway Fatak No. 14. He alongwith Ct. Sunil Kumar reached at the spot where Inspector Anand Prakash, SHO Prem Nagar along with his staff were present. He noticed FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 16 of 58 that dead body of a young person aged about 20 years was lying on the railway track in between pole No. 19/4 and 19/6, around 100 mtrs. ahead of Hind Vihar Fatak, towards Bahadurgarh. Meanwhile, IO Inspector R.N. Chaudhary, HC Devender and HC Rajesh reached there. IO called the crime team. After sometime, crime team reached at the spot and inspected the scene of crime. Photographer of crime team took the photographs of the spot. FSL team was also called. FSL team reached there and inspected the SOC. Exhibits of blood stains stone lifted from the spot and five sealed pullandas were prepared and sealed with the seal of RN and taken in possession vide seizure memo Ex. PW- 13/A which bears his signature at point B. Pullandas were marked as A-1 to A-5. IO made inquiries from the public persons present there to get identified the dead body but the same could not be identified. The said unknown dead body was shifted to mortuary Subzi mandi through him and Ct. Sunil. Thereafter, they came back to PS. IO recorded his statement.
26. PW-16 Retd. ACP Mahesh Kumar stated that on 03.12.2019, he was posted as Inspector Draftsman at crime branch, PHQ and at the request of SI Vikram Singh, of PS Sarai Rohilla Railway between railway, he visited the place of incident i.e. near railway track in between railway electric pole No. 19/4 and 19/6, down towards railway station near Hind Vihar Fatak. IO along with HC Devender met him as the spot. He took rough FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 17 of 58 notes and measurements at the instance of SI Vikram. He further stated that on 19.12.2019, he had prepared scaled site plan on the basis of aforementioned rough notes and measurements. The site plan Ex. PW-16/A was handed over to the IO. After preparation of scale site plan, he had destroyed the rough notes and measurements.
27. PW-17 ASI Devender Singh stated that on 10.10.2019, at about 5:40 AM, he alongwith HC Rajesh was present in the PS. IO/SHO Inspector R.N. Chaudhary joined him and HC Rajesh in the investigation. They all left the PS in the policy gypsy and reached near Hind Vihar railway Fatak where they saw a male dead body was lying at a distance of about 100 mtrs from the railway fatak No.14 towards Mundaka side. ASI Bhanwar Lal alongwith other police officer and Inspector Anand Prakash, SHO Prem Nagar were also present there. Since, the incident had happened within the jurisdiction of PS Sarai Rohilla Railway Station so the proceedings were conducted by the IO Inspector R.N. Chaudhary. SHO Prem Nagar and other staff left the place. IO called Crime Team and FSL Team at the spot. Crime Team and FSL team came at the spot and they examined the spot. Crime team lifted the blood stained small stones and handed over the same to the IO. Spot was also photographed. IO converted the blood stained small stones into separate pullanda. Sl.No. A1 to A5 were given to all the pullandas. Pullandas were sealed with the seal of RN. Pullandas were seized vide seizure memo exhibited as Ex. PW-13/A bearing his FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 18 of 58 signature at point C. Seat after use was handed over to ASI Bhanwar Lal. ASI Bhanwar Lal took the dead body to Subzi Mandi Mortuary. He alongwith tried to know about the dead body. IO had shown the photographs of dead body which were clicked by him to public persons in Mundka village and they came to know that the name of deceased was Gaurav @ Ghore s/o late Naresh resident of village Mundka, aged about 20 years. They went to the house of deceased Gaurav @ Ghore but his family members were not present there. IO informed the neighbours of deceased Gaurav @ Ghore and asked to inform the family members of deceased about his death. Thereafter, they came back to PS at about 12:30 PM. IO prepared rukka and got registered the FIR. After registration of FIR, he alongwith IO and HC Rajesh reached at Mundka metro station where a secret informer met them and told that deceased Gaurav was lastly seen with one person namely Ankit in the last night and he also informed that Ankit was a criminal and he was involved in some robbery cases. He was seen on 10.10.2019 at Mundka railway station and if raid was conducted, he could be apprehended. Thereafter, they all the police officials alongwith secret informer reached at Mundka Railway Station. Secret informer pointed out towards a person who was wearing a white colour pant and black/purple colour T-shirt and was standing on the end of platform No.2 towards Nangloi side and told that he was accused Ankit. At his instance, he alongwith HC Rajesh apprehended the said person, who on inquiry FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 19 of 58 disclosed his name as Ankit s/o Ramesh. IO made inquiry from accused Ankit. On sustained interrogation, he disclosed that he alongwith his associates Gautam, Bukki and Lakhmi had murdered Gaurav and he could get recovered the knife by which they had murdered Gaurav. IO arrested the accused Ankit vide arrest memo as Ex. PW-13/G bearing his signature at point B. His personal search was conducted vide memo as Ex PW- 13/H bearing his signature at point D. Information of arrest of accused was given to his mother. IO recorded his disclosure statement Ex. his PW-13/N bearing his signature at point B. Accused led them towards the shrubs near railway line and got recovered one blood stained knife. IO asked some passengers to join the investigation but none had joined the investigation as their train had come and they left the spot. The handle of the said knife was red and green colour and on the handle, 'GLARE' was printed. IO prepared sketch of the said knife as Ex. PW-13/K bearing his signature at point B. IO prepared sealed pullanda of the blood stained knife and marked as Sr. No. A-6 and sealed the same with the seal of RN and took into possession vide seizure memo already as Ex. PW-13/F bearing his signature at point B. There was blood stained on the clothes of accused Ankit. Accused led them to the place of occurrence and at his instance, IO prepared pointing out memo as Ex. PW-13/L bearing his signature at point B. Thereafter, IO got changed the clothes of the accused Ankit and prepared pullanda of his blood stained clothes i.e. shirt and pant FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 20 of 58 and gave it as Sr. No. A-7 and sealed it with the seal of RN and took into possession vide seizure memo already exhibited as Ex. PW-13/1 which bears his at point B. The medical examination of the accused was got conducted at HRH hospital and they came back to PS. Accused was lodged in lockup. IO recorded his statement. He further stated that on 12.10.2019, he again joined the investigation of the present case alongwith IO and HC Rajesh. IO informed called them in his office at police station where three persons were present. He told that these three persons were residents of Mundka and their names were Gautam, 'A @ G' and 'R @ B' and he also informed them that they had surrendered in the present case. The age of accused Gautam was 20 years while other persons were CCLs. Each of them took out knives from their pockets and told that they alongwith accused Ankit had murdered Gaurav @ Ghore near Hind Vihar Phatak. On inspection, they found that there was blood stains on each knife. IO called SI Vikram, JWO. IO prepared sketch of the knives. The sketch of knife produced by accused Gautam as Ex. PW-13/E which bears his signature at point B. IO prepared pullanda of the knife produced by accused Gautam and sealed the same with the seal of RN and the same was given as Sr. No A-
10. IO seized the same vide seizure memo as Ex. PW- 13/J which bears his signature at point A. IO arrested the accused Gautam vide arrest memo as Ex. PW-13/C bearing his signature at point B. His personal search was conducted vide memo as Ex. PW-13/D bearing his FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 21 of 58 signature at point B. JWO SI Vikram reached there and conducted the proceedings qua CCLs 'A @ G' and 'R @ B'. Sketch of knife produced by them was prepared and sealed pullanda of knife produced by them were taken into possession. Accused Gautam as well as CCLs took them to the place of occurrence. At their instance, IO prepared pointing out memo as Ex. PW-13/M bearing his signature at point B. Thereafter, they reached at the house of Gautam. Accused Gautam took out his blood stained clothes worn by him at the time of incident in the presence of his father Karamvir. IO prepared pullanda of the said clothes and gave it Sr. No. A-11 and sealed it with the seal of RN and took into possession vide seizure memo as Ex. PW-14/A bearing his signature at point A. Thereafter, they went to the house of CCL 'A @ G' where he got recovered his clothes worn by him at the time of incident which was seized after preparing sealed pullanda and same was given sl. no. A-12. Thereafter, they went to the house of CCL 'R @ B' where he got recovered his clothes worn by him at the time of incident which was seized after preparing sealed pullanda and same was given Sr. No. A-13. Thereafter, they came back to PS. Case property was deposited in malkhana. Accused Gautam was kept in lockup after his medical examination. Both the CCLs were sent to observation home through JWO/SI Vikram. IO recorded his statement.
FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 22 of 58
28. PW-18 Retd. Inspector R.N. Chaudhary is the IO of the present case. He stated that on 10.10.2019, he was posted at PS SRRS as SHO and on that day while he was present at PS, duty officer informed him about DD No.1A as Ex. PW-1/D regarding the fact that a dead body was lying on the railway track behind Hind Vihar Phatak. Duty officer also informed him that ASI Bhawar Lal and Ct. Sunit had already been informed about DD No.1A and they had gone to the spot for taking appropriate action. Thereafter, at about 5:40 AM, he alongwith HC Rajesh and HC Devender left the PS in the policy gypsy and reached near Hind Vihar railway Fatak where they saw a male dead body was lying at a distance of about 100 mtrs from the railway fatak No.14 towards Mundaka side between pole No. 19/4 & 19/6. Inspector Anand Prakash, SHO Prem Nagar alongwith his staff and ASI Bhanwar Lal alongwith Ct. Sunit were present there. He noticed that there was injury on the left side of abdomen and left side of back with some sharp edged weapon on the said dead body with some other injury marks. Since, the incident had happened within the jurisdiction of PS Sarai Rohilla Railway Station so the proceedings were conducted by him. SHO Prem Nagar and other staff left the place. He called Crime Team and FSL Team at the spot. Crime Team and FSL team came at the spot and they examined the scene of crime. Spot was also photographed. He also took photograph of dead body for its identification. He lifted the blood stained stone from the spot and kept the same in five transparent jars and marked the same as Sl. FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 23 of 58 No. A1 to A5 and sealed with the seal of RN and the same were taken into possession vide seizure memo as Ex. PW-13/A bearing his signature at point D. Seal after use was handed over to ASI Bhanwar Lal. ASI Bhanwar Lal took the dead body to Subzi Mandi Mortuary. He alongwith HC Devender tried to know about the dead body. He had shown the photographs of dead body clicked in his mobile phone to public persons in Rajdhani Park and Mundka village. The villagers of village Mundka identified the dead body and told the name of deceased as Gaurav @ Ghore s/o late Naresh resident of village Mundka, aged about 20 years. They went to the house of deceased Gaurav @ Ghore but his family members were not present there. He informed the neighbours of deceased Gaurav @ Ghore and asked to inform the family members of deceased about his death. Thereafter, they came back to PS at about 12:30 PM. He prepared rukka Ex. PW-18/A bearing his signature at point A and got registered the FIR. He deposited the above said pullandas in malkhana and he took back the seal from ASI Bhanwar Lal. After registration of FIR, he alongwith HC Devender and HC Rajesh reached at the place where dead body was found. He prepared site plan Ex. PW-18/B which bears his signature at point A. Thereafter, they went to Mundka metro station where a secret informer met them and told that deceased Gaurav was lastly seen with one person namely Ankit in the last night and he also informed that Ankit was a criminal and he is involved in some robbery cases. He further FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 24 of 58 informed that accused Ankit was seen on that day before some time i.e. 10.10.2019 at Mundka railway station and if raid be conducted, he could apprehended. Thereafter, they all the police officials alongwith secret informer reached at Mundka Railway Station. Secret informer pointed out towards a person who was wearing a white colour pant and black/purple colour T-shirt and was standing on the end of platform No.2 towards Nangloi side and told that he was the accused Ankit. At his instance, HC Devender and HC Rajesh apprehended the said person, who on inquiry disclosed his name as Ankit s/o Ramesh. He made inquiry from accused Ankit. On sustained interrogation, he disclosed that he alongwith his associates Gautam, CCLs 'R@B' and 'A@G' had murdered Gaurav and he could get recovered the knife by which they had murdered Gaurav. He asked some passengers to join the investigation but none had joined the investigation as their train had come and they left the spot. He noticed that there was blood stains on the T-shirt and pant of Ankit. Accused led them towards the shrubs near railway line near closed phatak no. 15 between pole No. 19/26 and 19/28 and got recovered one blood stained knife. The handle of the said knife was red and green colour and made of plastic colour and on the handle, 'GLARE' was printed. IO prepared sketch of the said knife as Ex. PW-13/K bearing his signature at point C. He prepared sealed pullanda of the blood stained knife and marked as Sr. No.A-6 and sealed the same with the seal of RN and took into possession vide seizure memo as FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 25 of 58 Ex. PW-13/F bearing his signature at point C. He handed over his seal to HC Devender. Thereafter, he arrested the accused Ankit vide arrest memo as Ex. PW-13/G bearing his signature at point C. His personal search was conducted vide memo as Ex. PW-13/H bearing his signature at point C. Information of arrest of accused was given to his uncle. Accused led them to the place of occurrence and at his instance, he prepared pointing out memo as Ex. PW-13/L bearing his signature at point C. Thereafter, they came back to PS. Above said exhibits/ pullandas were deposited in malkhana. The uncle of accused Ankit came to PS alongwith clothes of accused Ankit. Thereafter, he got changed the clothes of the accused Ankit and prepared pullanda of his blood stained clothes i.e. shirt and pant and gave it as Sr. No. A-7 and after taking back his seal from HC Devender, he sealed it with the seal of RN and took into possession vide seizure memo as Ex. PW-13/1 which bears his signature at point C. He recorded his disclosure statement as Ex. PW-13/N bearing his signature at point C. The pullanda of blood stained clothes of accused was deposited in malkhana. The medical examination of the accused was got conducted at HRH hospital. Thereafter, they alongwith the accused Ankit tried to search the co-accused in village Mundka but they could not be found on that day. Thereafter, they came back to PS. Accused Ankit was kept in lockup. Death report of deceased was prepared which is Ex. PW-18/C bearing his signature at point A. He recorded the statement of Kartar Singh and Raj FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 26 of 58 Kumar who identified the dead body of Gaurav @ Ghore as Ex. PW-18/D and Ex. PW-18/E bearing his signature at point A respectively. He further stated that on 11.10.2019, he went to Subzi Mandi Mortuary and got conducted the postmortem of dead body of Gaurav @ Ghore and collected the postmortem report. The concerned doctor handed over him the sealed parcel of viscera, sealed parcel of blood stained clothes of deceased and sealed parcel of blood of deceased in gauze piece alongwith sample seal which were seized by him vide seizure memo Ex. PW-18/F bearing his signature at point A. Thereafter, accused Ankit was produced before Id. MM. One day police custody of accused Ankit was granted by ld. MM. They alongwith accused Ankit went to Mundka village and Rohtak in search of co-accused persons but they could not be found on that day. He further stated that on 12.10.2019, he produced the accused Ankit before ld. MM. Accused Ankit was sent to judicial custody. He further stated that on 12.10.2019 at about 4:00 PM, accused Gautam and CCLs 'A @ G' and 'R @ B' came to police station and surrendered before me. Each of them produced blood stained knives. HC Devender and HC Rajesh also joined investigation with him on that day. He prepared sketch of knife produced by accused Gautam as Ex. PW-13/E bearing his signature at point C. He prepared pullanda of the said knife and sealed the same with the seal of RN and took in possession vide seizure memo as Ex. PW-13/J bearing his signature at point C. He had also prepared the sketches of FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 27 of 58 knives produced by CCLs 'A @ G' and 'R @ B' and seized theme after preparing sealed pullanda. He recorded the disclosure statement of accused Gautam as Ex. PW- 13/B bearing his signature at point C. He also recorded the version of the CCLs 'A @ G' and 'R @ B'. He arrested the accused Gautam vide arrest memo as Ex. PW-13/C bearing his signature at point C and his personal search was conducted vide memo as Ex. PW-13/D bearing his signature at point C. JWO SI Vikram was called and custody of CCLs 'A @ G' and 'R @ B' were handed over to him. Thereafter, he alongwith HC Devender and HC Rajesh and accused Gautam and JWO SI Vikram alongwith CCLs 'A @ G' and 'R @ B' went to Mundka village at the house of accused Gautam where accused Gautam got recovered the white colour pant and black colour shirt which were worn by him at the time of incident. There were blood stains on the pant of accused Gautam. He prepared the sealed pullanda of the clothes of accused Gautam and sealed the same with the seal of RN and gave it Sr. No. 11. Thereafter, they went to the houses of both the CCLs where they got recovered their blood stained clothes which were seized after preparing the pullanda of the same. Thereafter, they came back to police station. The case property/ exhibits were deposited in malkhana. The medical examination of accused Gautam and both the CCLs were got conducted. Accused Gautam was kept in lockup and both the CCLs were sent to produce before Principal Judge JJB through JWO SI Vikram and thereafter, both the CCLs were sent to FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 28 of 58 Juvenile home. He further stated that on 13.10.2019, accused Gautam was produced before ld. MM and sent to JC. The further investigation of the case was handed over to SI Vikram for the period 14.10.2019 to 10.11.2019 as he was on leave for the said period. He further stated that on 11.11.2019, he again took the case file from SI Vikram and conducted the further investigation. On the same day, he recorded the statement of Ms. Tanu (sister of deceased Gaurav) and Ms. Anita (mother of deceased Gaurav). During investigation, all the pullandas of recovered knives were sent to forensic department, Subzi Mandi mortuary for subsequent opinion. His application in this regard moved before HOD forensic medicine Subzi Mandi Mortuary as Ex. PW-18/G bearing his signature at point A. The concerned doctor after examining the knives handed over him his report/ subsequent opinion as Ex. PW-18/H alongwith resealed pullandas of the above said knives. The same were deposited in the malkhana. He further stated that on 02.12.2019, he deposited the above said all the exhibits in FSL Rohini. He further stated that on 03.12.2019, he alongwith Inspector Mahesh Kumar, draftsman visited the place of occurrence and at his instance, he took the rough notes and measurement of the place of occurrence. He recorded his statement u/s. 161 Cr.PC. On 24.12.2019, Inspector Mahesh Kumar handed over him the scaled site plan as Ex. PW-16/A. During investigation, on 12.10.2019 accused Gautam and both the CCLs led them to the place of occurrence and at their FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 29 of 58 instance, he prepared pointing out memo as Ex. PW- 13/M which bears his signature at point C. After completion of investigation, charge-sheet was filed in the Court. He identified the case property.
29. PW-19 Ms. Anita Raghav, Junior Forensic Chemical Examiner, FSL, Rohini stated that on 02.12.2019, 13 sealed plastic container, one sealed paper envelope received in the office of FSL. in connection of the present case. Same was marked to him for examination. He had conducted the biological and DNA examination of the above said exhibits A1 to A13. He further stated that on biological examination, the blood was detected on exhibits A1, A2, A3, A4, A5, A6, A7a, A7b, Al4a, A14b, A18, A8, A9, A10, A11a, A11b, A12a, A12b, Al3a, Al3b. DNA profile was generated on all the exhibits except exhibit 'A-6' (knife) which may be due to degradation / inhibition of DNA. The result of DNA examination of the above said exhibits are as follows:-
1. DNA profile generated from the source of exhibit of 'A-18' 7/03/24 (gauze cloth piece of deceased) is matching with DNA profile generated from the source of exhibits 'A-1' (Stone pieces from SOC), 'A-2' (Stone piece from SOC), 'A-3'(Stone piece from SOC), 'A-4' (Stone piece from SOC), 'A-5' (Stone piece from SOC), 'A-14a" (Pants of deceased), 'A-146' (Shirt of A-8' (knife), "A-9" (knife), A-10 (knife), A-11a" (Shirt of accused Gautam), "A-116' (pants of accused Gautam), A-
FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 30 of 58 12 (Shirt of CCL), A-12b' (Jeans of CCL), 'A-13a' (Shirt of CCL) & 'A-13b'(jeans of CCL).
2. DNA profile generated from the source of exhibits 'A- 7a' (T- shirt of accused Ankit) and 'A-7b (pants of accused Ankit) are not matching with the DNA profile generated from the source of exhibits 'A-18' (gauze cloth piece of deceased). His detailed report is Ex. PW-19/A (running into 3 pages) bearing his signature at points A on each page. Remnants of the said exhibits were sealed with the seal of FSL Am. RDELHI. The allelic data of the above said exhibits are Ex. PW-19/B, Ex. PW-19/B and Ex. PW-19/C, all bear his signature at points A.
30. PW-20 Inspector U. Bala Shankaram stated that in the second week of July, 2022, on receipt of FSL report No. CFSL-2021/B-0179 dated 05/07/2021 prepared by Dr. Kamal Chauhan, she prepared the supplementary charge- sheet regarding the above said report and filed in the Court.
31. PW-21 Dr. Kamal Chauhan, SSO-II (Biology), CFSL, Delhi stated that on 22.03.2021, three sealed parcels sealed with seal of Am.R FSL DELHI were received in the office of CFSL from PS Sarai Rohilla alongwith request letter memo No. 442/SHO/SRRS/Delhi dated 22/03/2021. The seals were intact and tallied with specimen seal forwarded with request letter/forwarding letter. Parcel no.1 was found containing a knife labeled as A-6, described as blood stained knife. Parcel No.2 was FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 31 of 58 found containing one half sleeve black and purple colour dirty T-shirt having cut marks and reddish brown stains at few places marked as A-7a and one dirty white full pant having cut marks and reddish brown stains at few places marked as A-7b. Parcel No.3 was found containing reddish brown stained gauze cloth piece described as blood in gauze of deceased Gaurav @ Ghore marked as Ex. A-18. On examination, blood was detected on exhibits A-7a, A-7b, and A-18. Blood in traces was detected on Ex. A-6. DNA profile generated from source of exhibit A-7a (T-shirt), A- 7b(pant) was found to be human male in origin and consistent with each other but the same was not found to be consistent with DNA profile of deceased Gaurav @ Ghore (Ex.A-18, blood stained gauze piece). Source of Ex. A-6(knife) did not yield DNA for analysis. His detailed report alongwith genotype table is Ex. PW-21/A bearing his signature at point A on each page. Remnants of the exhibits were resealed with the seal of KCSSO-II (BIO) CFSL CBI N.D. and returned to forwarding authority alongwith his above said report.
32. PW-22 Inspector Anand Prakash stated that on 10.10.2019, he was posted at PS Prem Nagar as SHO. On that day, at about 5:00 AM, ASI Randhir informed him that he alongwith other police staff was present near Railway Crossing No.14, Hind Vihar to attend the call which was received vide DD No.9A and when he reached there someone informed him that a person was lying FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 32 of 58 unconscious near railway track 100 mtrs. away from railway crossing towards Mundka and when he reached there, he found a dead body of a male. On this information, he reached at the spot at about 5:30 AM and found the dead body. The circumstances were suspicious and the jurisdiction of matter was lying within PS Sarai Rohilla Railway Station so he informed PS Sarai Rohilla vide DD no.1A and he remained present till arrival of police officials of PS Sarai Rohilla. He further stated that at about 6:00 AM, IO inspector R.N. Chaudhary reached at the spot and took appropriate action after making inquiry from him. Thereafter, he was relieved from the spot. During the period, he remained there. He tried to find out the eye witness but the same could not be found. He further stated that on the next day, i.e. 11.10.2019, IO recorded his statement.
STATEMENT OF ACCUSED U/S 313 CR.P.C.
33. The PE was closed and the statement of accused persons under section 313 Cr. P.C. was recorded. All the incriminating evidence was put to them to which they denied all the allegations and stated that they have been falsely implicated in this case. Accused Ankit opted not to lead defence evidence and accused Gautam opted to lead evidence in his defence.
DEFENCE EVIDENCE
34. Accused Gautam examined DW-1 Ms. Priya in his defence evidence. She stated that on 12.10.2019 at about FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 33 of 58 6:00 7:00 PM, HC Rajesh Kumar came to her parental house No. 13, Kachi Sadak, Balmiki Mohalla, Mundka, Delhi. She further stated that at that time, she was unmarried and was residing at her parents' house. HC Rajesh Kumar asked one pair of clothes as they had to produce accused Gautam before the Court. She handed over new clothes from almirah to HC Rajesh Kumar. HC Rajesh had come to her house alone. Her brother Gautam was not with him.
35. Witness was cross-examined by the ld. Addl. PP for the State. She stated that she was not a summoned witness and she had not come to depose in the Court as the counsel of Gautam had told her to depose in the Court. She is the real sister of accused Gautam. Her brother/ accused Gautam had surrendered before the police at police station on 12.10.2019 at about 9:00 AM and her father had accompanied him. HC Rajesh came to her house to take clothes her brother Gautam in the evening hours on the same day i.e. 12.10.2019 after her brother had surrendered before the police. She further stated that she had told this fact to any police party or any Court that HC Rajesh had come to her house in the evening hours of 12.10.2019. She had handed over blue colour pant and mehroon colour T-shirt. She denied the suggestion that suggest that HC Rajesh had come to her house alone to take the clothes of accused or that HC Rajesh alongwith other police officials and accused Gautam came to her house and accused Gautam got recovered the blood FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 34 of 58 stained clothes which were seized by the police officials. She denied the suggestions that accused Gautam had surrendered before the police on 12.10.2019 or that on 12.10.2019, he got recovered the blood stained clothes. She denied the suggestion that any police officials had never come to her house to take the clothes of the accused that is why she did not remember the actual date of surrender of her brother Gautam before the police official. She denied the suggestion that she was deposing falsely being real sister.
FINAL ARGUMENTS
36. The Addl. PP for the State argued that the prosecution has proved its case against the accused persons beyond reasonable doubts. It is further argued that there is last seen together evidence against the accused persons which has been duly approved by the sister of the deceased and also confirmed by the mother of the deceased. It is further argued that blood stained knives were produced from the possession of accused Gautam as well as the CCLs at the time of surrender by Gautam and the CCLs. It is further argued that DNA of the blood found upon the recovered knives matched with the DNA profiling of deceased. It is further argued that the blood stained clothes were also recovered at the instance of accused Gautam/CCLs and the DNA profiting of the blood present on the clothes matched with the DNA profiling of the deceased. It is contended that there is sufficient evidence on record to convict the accused persons. FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 35 of 58
37. To the contrary, Ld. Counsel for the accused Ankit argued that there is no evidence against accused Ankit and he has been falsely implicated in the present case. It is further contended that the blood stained knife and the blood stained clothes which were allegedly recovered from the possession of accused Ankit could not be proved against him by the prosecution. Prosecution could not prove anything against Ankit as the FSL result clarified that the blood present on the knife and clothes did not match with the DNA of the deceased. It is further argued that the only evidence against accused Ankit is the last seen evidence which is deposed by the sister of deceased, but the gap between the last seen together and the death of deceased is quite large. It is argued that the case is based on circumstantial evidence and there is no complete chain to connect the accused with the alleged crime. It is therefore prayed that accused be acquitted from the present case.
38. Learned counsel for accused Gautam argued that there are glaring contradictions in the story of the prosecution. It is contended that the time gap between the last seen together and the death of deceased is big and the last seen evidence is inconsequential. It is further contended that as far as the recovery of knife and blood stained clothes are concerned, the same has been planted upon the accused after the exhibits of deceased were received by the IO after postmortem. It is contended that the IO received the exhibits after postmortem on 12th of October in the FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 36 of 58 morning and on the ame day, in the evening, the accused Gautam and CCLs allegedly surrendered with blood stained knife which has matched with the DNA of the deceased. Interestingly, on the other hand, the blood stained knife which was recovered from the possession of the co-accused Ankit on 10th of October 2019 did not match with the DNA of the deceased. It is further contended that there are contradictions in the version of the recovery witnesses. One of the witness PW-13 Head Constable Rajesh stated that blood stained knife was got recovered by accused Gautam from the bushes; while as per the prosecution story, the blood stained knife was produced by the accused Gautam to the IO in the Police Station. It is contended that the testimony of PW-13 HC Rajesh is full of contradictions and the recovery of blood stained knife and clothes at the instance of the accused is highly doubtful. It is also argued that the last seen evidence is also not reliable as the statement of the sister of the deceased was recorded after almost 1 month and there is no explanation for the delay in recording of the statement. It is argued that the investigation has not proceeded on the statement of the sister of the deceased but on the secret information. It is argued that the accused Gautam has been falsely implicated and he may be acquitted from the present case.
FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 37 of 58 LAW, ANALYSIS, APPRECIATION OF EVIDENCE AND COURT FINDINGS
39. This court has heard the final arguments from both the sides and has meticulously perused the judicial record.
40. The accused persons namely, Ankit and Gautam have been charged for the commission of offence punishable under Section 302 IPC for committing murder of the deceased Gaurav @ Ghore.
41. It is trite in law that to bring home conviction of accused, the prosecution has to establish its case beyond any reasonable doubt and the accused is presumed to be innocent till the time he is proved guilty and any benefit of doubt goes in the favour of the accused. This principle is called the Presumption of Innocence.
42. Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
43. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise "The Law of Evidence" fifth edition by Ian Dennis at page 445:
"The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 38 of 58 explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the fact-finder in a situation of uncertainty. Another function is to allocate the risk of mis-decision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendant's guilt."
44. In Data Ram Singh Vs. State of UP, the Hon'ble Supreme Court on 06.02.2018, observed as under:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty.........."
45. It is trite in law that to bring home conviction of accused, the prosecution has to establish its case beyond any reasonable doubt and the accused is presumed to be innocent till the time he is proved guilty and any benefit of doubt goes in the favour of the accused.
46. In the present case, the allegations against the accused persons are that they took the deceased from his house and murdered him by stabbing knives. There is no eye witness to the alleged crime and the case is totally based upon the circumstantial evidence.
LAW ON CIRCUMSTANTIAL EVIDENCE
47. It is settled principle of law that an accused can be punished if he is found guilty even in cases of FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 39 of 58 circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be.
48. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
49. The Hon'ble Supreme Court of India in case titled as Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , laid down the five golden principles while evaluating the circumstantial evidence. It was held by this Court that, the onus is on the prosecution to prove, that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 40 of 58 conviction can be made on the basis of circumstantial evidence. These are:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive na- ture and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
50. In Deonandan Mishra Vs. State of Bihar, [1955 2 SCR 570],the Hon'ble Supreme Court of India held as under:
"9....It is true that in a case of circumstantial evidence not only should the various links in the chain of evi- dence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been sat- isfactorily made out and the circumstances point to the appellant as the probable assailant, with reason- able definiteness and in proximity to the deceased as regards time and situation, and he offers no explana- tion, which if accepted, though not proved, would af- ford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain."
51. In addition to the above, while dealing with a criminal trial, a Court must not be oblivious of the most fundamental principle of criminal jurisprudence, which is, FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 41 of 58 that the accused 'must be' and not merely 'may be' guilty before the Court proceeds to convict him. In Shivaji Sahabrao Bobade & Another v. State of Maharashtra [1973 CriLJ 1783], the Hon'ble Apex Court, elaborating upon the above principle, observed that the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
52. In Devi Lal v. State of Rajasthan [2019 CriLJ 1423], a three-judge Bench of the Hon'ble Apex Court held that in a case based on circumstantial evidence where two views are possible, one pointing to the guilt and the other to his innocence, the accused is entitled to the benefit of one which is favourable to him. The relevant portion of the judgment is extracted below:-
"18. ... Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.
19. ... in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him."
53. In case of circumstantial evidence, it is a combination of facts creating a network through which there is no escape for the accused because the facts taken as a whole do not admit of any inference but of his guilt. In Ananat Chintaman Lagu Vs. State of Bombay, AIR 1960 SC 500, FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 42 of 58 it was held that conduct of the accused may form a link in the chain of circumstances which will be evident.
54. Bearing in mind the aforesaid settled legal principles, this court now proceeds to delve upon the evidence adduced on behalf of the prosecution to analyze whether the guilt of the accused has been proved beyond reasonable doubts and whether the complete chain of evidence has been proved, which exclude every possible hypothesis except the guilt of accused.
55. The criminal machinery in the present case came into motion when an information was received at PS Sarai Rohilla Railway Station vide DD No. 1A dated 10.10.2019 Ex. PW-1/D at around 5:36 AM "that one dead body is found at the railway track "which was later identified as of Gaurav Walia @ Ghore. The scene of crime was got inspected by the IO from crime team.
SCENE OF CRIME REPORT
56. The crime scene report Ex. PW9/A records that blood was detected on the stone pieces found on the railway track, near the dead body, underneath the dead body and from two different places near the Pole no. 19/6. The exhibits were lifted from the scene of crime and were sent to FSL.
57. As per the FSL Report Ex. PW19/A, the DNA profile generated from the stone pieces matched with the DNA profile generated from the source of deceased. That FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 43 of 58 means the blood found on the stone pieces was of the deceased. However, nothing was found on the scene of crime which could connect with the accused persons or point towards the guilt of the accused persons.
POSTMORTEM REPORT
58. The post-mortem on the dead body of deceased was conducted on 12th of October 2019. As per the Postmortem Report, six injuries were noted on the dead body of the deceased, out of which injury no. 1-4 were stab injuries, injury no. 5 was incised wound and injury no. 6 was an abrasion. The cause of death is opined to be due to hemorrhage and shock consequent upon ante- mortem injuries. It was also opined that injury no. 1-5 are caused by sharp edged cutting and stabbing weapon and injury no. 6 is caused by blunt force / surface impact. The viscera was preserved and the same was sent to FSL for forensic examination. The FSL report Ex. PW11/A with respect to the viscera reported that the pieces of liver, spleen and kidney of the deceased were found to contain Ethyl Alcohol. There is nothing in the FSL report which could connect the accused persons with the alleged crime.
SUBSEQUENT OPINION ON WEAPON OF OFFENCE
59. The IO filed an application to the HOD Forensic Medicine, Aruna Asif Ali Hospital for seeking opinion whether the injuries on the dead body of deceased are possible by the knives marked A-6 (recovered from FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 44 of 58 accused Ankit), A-8, A-9 & A-10 (recovered from accused Gautam). The subsequent opinion was provided vide letter Ex PW18/H. It is important to mention here that as per the subsequent opinion, the injury no. 1, 3, 5 & 6 were possible by Ex. A-6, A-8, A-9 & A-10. In other words, it means that the injuries were possible by any of the weapons and there is no specific report regarding the injuries being caused by any specific weapon. This opinion is also not of much help to the prosecution.
ARREST OF ACCUSED ANKIT AND RECOVERY OF WEAPON OF OFFENCE AND BLOOD STAINED CLOTHES
60. On 10th October 2019, accused Ankit was apprehended on the basis of secret information and he was found wearing blood stained clothes and as per prosecution story, he got recovered one blood stained knife. His blood stained clothes and knife were sent to FSL and as per the FSL result Ex. PW19/A, the DNA profile could not be generated from the knife recovered from the accused due to degradation/inhibition of DNA. The DNA profile generated from the blood stained clothes of the accused Ankit did not match with the DNA profile generated from the source of deceased.
61. The said knife and the clothes recovered from the accused Ankit were again sent to CFSL for further forensic examination. However, as per CFSL report Ex. PW21/A, though blood was detected on the knife, but it did not yield DNA for analysis. Again the DNA profile FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 45 of 58 generated from the clothes was not found consistent with the DNA profile of the deceased. Therefore, nothing was recovered from accused Ankit which could connect him to the commission of the alleged offence. Rather, the FSL and CFSL reports regarding the blood stained clothes and knife allegedly recovered from him exonerates him of the offence.
SURRENDER OF ACCUSED GAUTUM AND CCLs.
RECOVERY OF WEAPONS OF OFFENCE AND BLOOD STAINED CLOTHES
62. On the basis of disclosure, the accused Gautam and CCL's were implicated in the present case and raids were conducted at their addresses on 11 th October 2019. As per prosecution story, the accused Gautam and the CCLs surrendered on 12th October 2019 and all three of them produced blood stained knives which they allegedly used in the commission of the offence. All three of them also got recovered blood stained clothes from their respective houses, which they were wearing at the time of commission of offence. As per the FSL result Ex PW19/A, the blood stained knives produced by the accused Gautam and CCLs as well as the clothes recovered at their instance matched with the DNA profiling of the deceased.
63. As per prosecution story, accused Gautam and the CCLs produced blood stained knives at the time of their surrender before the police. It is settled law that all FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 46 of 58 confessions made to a police officer or to any person while in the custody of police are not admissible and same are governed by Sections 24 to 27 of the Indian Evidence Act. Any confession made to any police officer is inadmissible in evidence. Similarly, any confession made by an accused while he is in custody of police cannot be proved against the said person. Section 27 of the Indian Evidence Act is an exception to the said rule, as it permits so much of the information given by an accused in the custody of a police officer (whether it amounts to a confession or not) which relates distinctly to the facts thereby discovered, to be admitted in evidence.
64. Under S. 27 IEA, only so much of the information which distinctly relates to the facts really thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates. As explained by Sir John Beaumont in Pulukuri Kottaya v. Emperor:
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced, and the knowledge of the accused as to this, and the information given must relate distinctly to this fact".
65. For the applicability of S. 27 IEA, therefore two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered.
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66. In the present case, thus, the fact of production of the knife by the accused Gautam himself is inadmissible in law as it is not a fact discovered as per the requirements of Section 27 of The Indian Evidence Act.
67. It is the prosecution case that the accused Gautam surrendered before the IO Insp. R N Chaudhary in the presence of witnesses HC Rajesh and HC Devender. Here, it is important to discuss the testimony of PW-13 HC Rajesh which suffers from a number of contradictions and inconsistencies. PW-13 accompanied the IO throughout the investigation of the present case. He was the prime witness of the prosecution. He stated that accused Gautam disclosed that knife was concealed under the bushes and in pursuance of the disclosure, accused Gautam got recovered one knife from under the bushes. It is important to mention here that PW-13 did not depose anything regarding the recovery of blood stained clothes at the instance of accused Gautam or from CCLs for that matter. He was cross examined at length by the Addl. PP for the state. In such cross examination, he stated that he does not remember whether the accused Gautam and CCLs produced the knives at the time of their surrender. The perusal of the cross examination by the ld. Addl. PP of State would simply reveal that PW-13 merely admitted all the suggestions put forward by the ld. Addl. PP for the state. The clothes recovered at the instance of accused Gautam and CCLs were shown to him, but he stated that he does not remember at whose instance the said clothes FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 48 of 58 were recovered. He merely admitted the suggestions of the ld. Addl. PP for the state. In cross examination by the ld. Addl. PP for the state, PW-13 admitted that accused Ankit got recovered the knife from the bushes and he also admitted that accused Gautam produced the blood stained knife at the time of surrender. Interestingly and surprisingly, during cross examination by the Counsel for the accused Gautam, PW-13 stated that he was not present when the accused Gautam and CCLs surrendered before the SHO. He again stated that accused Gautam got recovered the knife from the bushes. There are material contradictions in the statement of PW-13 which creates serious dents in prosecution version. PW-13 is the prime witness of recovery and seizure. His testimony has raised serious doubts upon the recovery of knife and clothes from the accused Gautam.
68. To add further, the prosecution case is that accused Gautam and CCLs produced three individual knives at the time of their surrender. Inspector Vikram as PW-14 deposed that accused Gautam and CCLs produced only one knife. If he was the witness to the production of knife, it is not explained why he was not made witness to the seizure memo of said knives. He had deposed about only one knife and not three individual knives. PW-13 who is a witness to the seizure memo but he had stated that he does not remember whether the knives were produced by the accused Gautam and CCLs at the time of their surrender.
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69. It is also important to note here that there is no independent public witness to the recovery and seizure of knives or clothes at the instance of the accused Gautam or CCLs. The Hon'ble Apex Court in Ramanand @ Nandlal Bharti vs. The State of Uttar Pradesh [AIR 2022 SC 5273] held as follows:
"If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 50 of 58 evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
70. Further, the Hon'ble High Court of Delhi in Talewar Sharma vs State, CRL. REV.P. 292/2001 decided on 20.11.2012, held as follows:
"30. The view taken in this regard in the impugned judgment is duly supported by decision of this Court in Raj Kumar @ Raju vs. State 169 (2010) DLT 517 (DB) wherein it was observed as under :
'18. The recoveries of blood-stained clothes at the instance of the appellant have to be viewed in light of various decisions of the Supreme Court where such kind of recoveries have been held to be very weak evidence.
19 . In the decision report as AIR 1963 SC 1113, Prabhu v. State of U.P. recovery of a blood-stained shirt and a dhoti as also an axe on which human blood was detected was held to be extremely weak evidence. Similarly, in the decision reported as AIR 1977 SC 1753, Narsinbhai Haribhai Prajapati etc. v.
Chhatrasinh & Ors., the recovery of a blood-stained shirt and a dhoti as also the weapon of offence a dhariya were held to be weak evidence. In the decision reported as AIR 1994 SC 110, Surjit Singh & Anr. v. State of Punjab the recovery of a watch stated to be that of deceased and a dagger stained with blood of the same group as that of the deceased were held to be weak evidence. As late as in the decision report as, I (2008) SLT 485 = I(2008) CCR 153 (SC) = JT 2008 (1) SC 191, Mani v. State of Tamil Nadu recoveries of blood stained clothes and weapon of offence stained with blood were held to be weak recoveries.
20. We may only add that the part of the disclosure statement of the accused that the clothes which he was wearing at the time when he committed the crime got stained with blood of the deceased and his getting the clothes recovered attracts Section 27 of the Evidence Act limited to the extent that the accused got recovered blood stained clothes. Independent evidence has to be led to prove that the said clothes were being worn by the accused at the time when the FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 51 of 58 crime was committed and said fact cannot be proved through his disclosure statement.'"
71. In the instant case, once the accused Gautam and CCLs had surrendered in the police station before the SHO, there was ample time and opportunity with the IO to join independent public witness for recovery of the blood stained clothes from the houses of accused persons at their instance. Also, the IO could have photographed or videographed the recovery and seizure of the blood stained clothes from the houses of the accused persons at their instance. But despite having sufficient time and opportunity to do the same, IO has not done so for the reasons best known to him. Such evidence of recovery of blood stained clothes is anyways a weak evidence and given the anomalies and contradictions, this Court finds the recovery from accused Gautam as doubtful and not reliable.
LAST SEEN TOGETHER EVIDENCE
72. In the present case, it is the prosecution story that accused Ankit and Gautam had gone to the house of the deceased and the deceased had gone along with them. The sister of deceased had deposed that the accused persons have come to her house and her brother had gone with them. The mother of deceased had also deposed that her daughter had told her about this fact in the evening when she had returned from her work. Interestingly, the IO had not recorded the statement of the sister of the deceased on 10th of October 2019, but the same was recorded after FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 52 of 58 about one month. There is no explanation why the statement of sister and mother of the deceased was not recorded on 10thOctober 2019 or soon thereafter. It is not the case of prosecution that the investigation unfolded or proceeded on the basis of the statement of sister of deceased that the deceased had gone alongwith accused Ankit and Gautam. In fact, the accused Ankit was apprehended at the instance of the secret information. Accused Ankit was arrested on 10th October 2019 and the accused Gautam surrendered on 12th October 2019, and even the post-mortem upon the dead body of deceased was conducted on 12th October 2019, but there is no reason why the statement of sister and mother of accused mother of deceased were not recorded on 10th or 12 th of October 2019. The statements were recorded on 11th November 2019 when almost all the investigation was completed.
73. The testimony of the mother of deceased would reveal that she has deposed that the sister of deceased informed her that the deceased had gone along with the accused persons. The evidence being hearsay in nature is not admissible in evidence. Section 60 of the Evidence Act prescribes that the oral evidence must be direct and must be given by the person by the person who has directly heard, seen or sensed the fact. It is a fundamental rule of evidence that hearsay evidence is inadmissible.
74. In Bodh Raj @ Bodha & Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45, the Hon'ble Supreme Court FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 53 of 58 held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being author of the crime becomes impossible.
75. In Mohibur Rehman & Anr. v. State of Assam, (2002) 6 SCC 715, the Supreme Court observed thus:-
"10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide......."
76. In the present facts, the sister of the deceased had deposed that her brother had gone along with the accused persons at about 11 AM on 9th of October 2019. The post-mortem report would reveal that the approximate time of death of the deceased is around 12 AM in the intervening night intervening night of 9th & 10th of October, the time gap between the last seen together and the death of deceased is more than 12 hours. There is no evidence of the accused persons and the deceased being together in those last 12 hours. There is no technical evidence such as CDR or location mobile phones of the deceased or accused persons, or any CCTV footage of FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 54 of 58 nearby area. As such, given the time gap between the last seen together and the time of death of the deceased, the reliability on the last seen evidence cannot be over- emphasized.
MOTIVE
77. As far as the motive is concerned, it is needless to mention that the existence of motive plays an important role and it is one of the pivotal link to complete the chain of events. At the same time, the non-proving of motive does not in itself render the prosecution case baseless. However, in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such case. The absence of motive, however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.
78. In Anwar Ali vs. State of Himachal Pradesh, [(2020) 10 SCC 166] , the Hon'ble Apex Court clarified the legal position regarding motive in clear words. It was held thus:-
"24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar that if motive is proved that would sup- ply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as ob- served by this Court in Babu, absence of motive in a FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 55 of 58 case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under : (Babu case, SCC pp. 200-01)
25. In State of U.P. v. Kishanpal, this Court examined the importance of motive in cases of circumstantial evidence and observed : (SCC pp. 87-88, paras 38-
39)
38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circum-
stances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its im- portance in a case where direct evidence of eyewit- nesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evi- dence of eye- witnesses is not convincing. In the same way, even if there may not be an apparent mo- tive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
79. In the present case, no motive has been proved by the prosecution for the murder of the deceased. The sister of the deceased deposed that she does not know about any quarrel between the deceased and the accused persons. The perusal of the disclosure of the accused persons would reveal that there was some dispute over the distribution of the booty of the robbery articles due to which the accused persons attacked upon the deceased. The said story of the prosecution finds no corroboration as there is no previous involvement of the accused persons in any case involving offence of robbery. Even FIR No. 70/2019 State Vs. Ankit and Anr.
PS SRRS, U/s. 302/34 IPC 56 of 58 otherwise, the disclosure of accused persons is not admissible in evidence being hit by section 25 of Indian Evidence Act. The judicial record is devoid of any motive on the part of accused persons to commit murder of the deceased.
CONCLUSION
80. In a murder case it is the duty of the Court to scrutinize the evidence with extra ordinary care as the person convicted runs the risk of being subjected to the highest penalty prescribed by the Indian Penal Code. In Sudama Pandey & Ors. v. State of Bihar, 2002 (1) SCC 679, the following principles were laid down by the Hon'ble Apex Court:-
"8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
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81. Taking the holistic view of the evidence on record, this Court is of view that there are serious doubts about the commission of offence by the accused persons and it is settled all that the benefit of any doubt must go to the accused persons. In the light of aforementioned discussions and observations, this Court is of the considered view that the accused persons are entitled to be exonerated on benefit of doubt.
82. Accordingly, the accused persons namely Ankit and Gautam are hereby acquitted for the charges under section 302/34 IPC.
83. Bail bonds under section 437-A have already been furnished.
84. File consigned to the record room after completing the necessary formalities Pronounced in open court SUSHIL Digitally signed by SUSHIL ANUJ on 08th August, 2024 ANUJ TYAGI Date: 2024.08.08 TYAGI 12:51:26 +0530 (SUSHIL ANUJ TYAGI) Additional Sessions Judge-04, Central, Delhi, THC, Delhi.
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