Delhi District Court
Fir No. 378/2016 State vs . Vishnu Subedi Ps Moti Nagar Page No. 1 Of ... on 9 January, 2023
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE: 04, WEST DISTRICT:
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-007684-2016
SC No. 58131/2016
FIR No. 378/2016
PS : MOTI NAGAR
State
Vs.
Vishnu Subedi
S/o Sh. Tikka Ram
R/o H.No. 129B, Hanuman Vatika
Vaishali, Jaipur.
Permanent address:
Village Digam, Disst. Gulmi,
Nepal.
Date of Institution of case : 13.10.2016
Date of decision : 09.01.2023
Final order : Acquitted
JUDGMENT
1. Brief facts of the case are that on 17.07.2016 DD No. 14A was marked to SI Yograj who along-with ASI Gautam went to the place of information i.e. at WZ-161, Basai Darapur, Delhi. Upon reaching at the spot, they found that room built on the South East corner of the first floor stair- cases was locked and foul smell was coming from inside the said room. In the mean time, Insp. Shyoram and Ct.
FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 1 of 75 Deepak also reached there. SHO also visited the spot alongwith the staff. The complainant Kamal Prashad Pant was also present there. SI Yograj called the crime team and members of crime team reached there. The photographer took the photographs of the door and thereafter, SI Yograj got opened the door after breaking the lock with the help of chhaini and hammer. SI Yograj and other police officials found a dead body of a male which was lying on a mat in the room in decomposed condition. SI Yograj seized the broken lock made of Lancer Atoot vide seizure memo and kept the same in a cloth parcel which was sealed with the seal of YSD. Crime team inspected the spot. SI Yograj sent the dead body of deceased to DDU Hospital through Ct. Deepak for postmortem alongwith his written request. SI Yograj recorded the statement of complainant Kamal Prashad Pant and prepared rukka and handed over the same to PSI Gautam for getting registered the FIR from PS Moti Nagar. After registration of FIR, PSI Gautam returned at the spot and handed over the copy of FIR and original rukka to Insp. Shyoram for investigation. Thereafter, Insp. Shyoram inspected the spot and prepared site plan. Inspector Shyoram also lifted the exhibits i.e. blood sample with the help of cotton and earth control from the spot and kept the same in a separate plastic containers which were sealed with the seal of SR and seized the same vide seizure memo. Inspector Shyoram also lifted one half empty bottle of Whisky having label of Royal Stag and one plastic bottle of soda of Xalta of 600 ml and seized the same vide seizure memo and sealed the same in a cloth parcel which was sealed with the seal of FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 2 of 75 SR. Inspector Shyoram had also seized another lock of Tomson company which was lying in the room near the coat vide seizure memo and kept the same in a cloth parcel which was sealed with the seal of SR. Inspector Shyoram also found one glass having half filled with Whisky which was lying on the floor near table on which one LCD was lying and Inspector Shyoram had poured the said whisky in empty bottle and tied the same with the cap and cap of the same was sealed with cloth parcel with the seal of SR and seized the same with seizure memo. Inspector Shyoram had also seized one mobile phone which was lying on a table near the LCD in the room having broken screen vide seizure memo and kept the same in a cloth parcel which was sealed with the seal of SR. Inspector Shyoram had also seized the dari and taat on which the dead body was lying having blood stains vide seizure memo and kept the same in a plastic katta of white colour and the mouth of the same was wrapped with the cloth and sealed with the seal of SR and seized the same through seizure memo. On 18.08.2016, Inspector Shyoram went to DDU hospital for purpose of the getting conduct the postmortem on the dead body of the deceased where he filled up/prepared inquest paper i.e. request of postmortem and brief facts. Inspector Shyoram also recorded the statements of Kamal Prasad and Dhan Prasad who met him there regarding identification of the dead body of deceased. After postmortem, dead body of deceased was handed over to Kamal Prasad Pant. After postmortem, concerned doctor had handed over two parcels and one sample seal which Inspector Shyoram seized. On FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 3 of 75 21.07.2016, Inspector Shyoram alongwith SI Yograj and Ct. Shiteshwar left the PS for the search of accused and at about 04:30 pm, they reached at T-point, Club Road, Ring Road, Punjabi Bagh where he received secret information that accused was moving near Club Road and at the instance of the secret informer, they apprehended the accused at the corner of the Club Road. Inspector Shyoram interrogated accused Vishnu Subedi and arrested him and his personal search was also conducted. From his personal search, one mobile phone of make Hitech and driving license were recovered. Accused also made disclosure statement. From the search of accused, one raxine purse of brown colour containing Rs.11430/-, some documents and three passport size photographs i.e. one of complainant and two of deceased Rishi Ram, one certificate of citizenship of deceased of Nepal and one key of Lancer were allegedly recovered from the back pocket of wearing pant of accused and the same were seized by Inspector Shyoram. During investigation, accused allegedly led Inspector Shyoram and other police officials to his rented room i.e. Shop No.29/30, New Janta Market, Paschim Puri Chowk, Club Road, Punjabi Bagh and from the first floor of room, he got recovered the knife and produced the same before Inspector Shyoram which he seized after sealing. Accused also took out clothes i.e. blue colour jeans pant having label of Low Waist Skinny and one t-shirt of multi-colour i.e. grey, blue, black and white having label of 'Your Style LBT MAN' from under the bedding and produced the same to Inspector Shyoram which he seized after sealing.
2. During investigation, accused allegedly pointed out the FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 4 of 75 place of occurrence. During investigation, on 22.07.2016, Inspector Shyoram along-with HC Amit, HC Omvir, Ct. Parvesh and accused allegedly went to West Bengal, Darjeeling and reached there on 23.07.2016 and thereafter, at the instance of accused, they reached at the house of girl friend of accused situated at Village Fari, Samsing, PS Jaldhaka, District Darjeeling, West Bengal. From the said house in the room at right side corner at ground floor under some articles accused took out two mobile phones one of make LAVA of black and sliver colour having cover without SIM and another of Samsung of white colour having cover of white and brown colour without SIM respectively and produced the same to Inspector Shyoram which he seized through seizure memos. During the investigation, Inspector Shyoram collected the photographs from crime team office and scene of crime report from incharge of crime team. He also collected CDRs of the mobile phones of deceased as well as of accused. On 27.07.2016, Inspector Shyoram got inspected the spot through draftsman and later on, collected the scaled site plan. During investigation, Inspector Shyoram checked the CCTV camera installed nearby vicinity and on checking the footage of camera installed at nearby shop ie Triputi Flowers, G-34, they saw one boy having covered his face with white hanker-chief was roaming near the shop of deceased. During investigation, Inspector Shyoram sent the exhibits to FSL, Rohini. Upon completion of investigation, Inspector Shyoram had prepared chargesheet and after receipt of FSL reports, filed the same before the court.
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3. After completion of investigation, chargesheet was filed before concerned Ld. M.M. on 04.10.2016. Vide order dated 07.10.2016, passed by Ld. MM the present case was committed to the court of Sessions in accordance with Section 323 Cr.P.C for 13.10.2016 and on 13.10.2016 the present case was assigned to the Sessions Court for trial.
4. On 02.11.2016, order on charge was passed by Ld. Predecessor and charge for offence punishable under Section 302/380 IPC was framed against the accused namely Vishnu Subedi. The charge was read over and explained to the accused in vernacular and he was asked as to whether he wanted to plead guilty or claim trial. After understanding the charge, accused pleaded not guilty and claimed trial.
5. Thereafter, the prosecution has examined 34 witnesses i.e. PW1 Ct. Sunil, PW2 HC Sandeep, PW3 ASI Om Prakash, PW4 ASI Madan Lal, PW5 SI Devender Singh, PW6 Sh. Santosh Tripathy, PW7 Surender Kumar, PW8 Dr. V.K Ranga, PW9 W. Ct. Soniya Rathi, PW10 Sh. Kamal Prashad Pant, PW11 Subhash Tyagi, PW12 Brahma Padadhikari, PW13 Dhanprasad, PW14 Smt. Prem Lata, PW15 Mahesh Singh, PW16 Satish Chand Saini, PW17 Ms. Anju, PW18 Inspector Hemant, PW19 Ct. Balraj, PW20 Sh. Anupam Vohra, PW21 Sh. Mahendra Singh Niranjan, PW22 Sh. Parshuram Singh, PW23 Sh. Kaushal Kumar, PW24 SI Gautam, PW25 H.C Omvir, PW26 HC Amrit Singh, PW27 Ct. Deepak, PW28 SI Yograj, PW29 Ct. Naveen Kumar, PW30 Ct. Dharmender Kaushik, PW31 W/Ct. Kamla, PW32 Ct. Chandrashekhar Yadav, PW33 ASI Pradeep Kumar and PW34 Inspector Shyoram.
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6. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
7. PW1 Ct. Sunil has deposed that on 17.07.2016 he was posted as Photographer in Mobile Crime Team. On that day, he alongwith the crime team visited the spot i.e. WZ- 161, First Floor, Basai Darapur, Delhi and met the IO alongwith police staff and the smell of decomposed body was coming from a room which was locked. He further deposed that he took the photograph of the lock and the lock was removed with the help of chhaini and hammer. He further deposed that they entered into the room and saw dead body of a male was lying in decomposed condition. He took 44 snaps of the dead body and spot but only 27 photographs could be developed. PW1 brought the negatives of same as Ex.PW1/A1 to Ex.PW1/A44 and exhibited the photographs as Ex.PW1/B1 to Ex.PW1/B27.
8. During cross-examination on behalf of accused, PW1 stated that he did not remember if the photograph of broken lock was taken or not. He stated that only 27 photographs could be developed out of 44 negatives and reason could be flash problem and that the face of the dead body was not identifiable as same was in decomposed condition. He also stated that when they left the spot at about 6.30 pm, IO and other police officials were present there.
9. PW2 HC Sandeep deposed that on 17.07.2016 he was deputed as DO from 8 am to 4 pm. At about 12.40 pm, he received rukka from PSI Gautam sent by SI Yograj Kumar, on the basis of which, he got recorded FIR Ex.PW2/A through computer operator. PW2 made endorsement on FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 7 of 75 rukka Ex.PW2/B. He also issued certificate u/s 65B of Indian Evidence Act Ex.PW2/C. He further deposed that after registration of FIR, he handed over the copy of above documents to PSI Gautam to hand over the same to Insp. Shyoram Yadav for investigation. PW2 also brought the original record of DD No. 14 A Ex.PW2/D and DD No. 16A Ex.PW2/E.
10.This witness was not cross-examined on behalf of accused despite opportunity given.
11.PW3 ASI Om Prakash deposed that on 27.07.2016 he was posted as ASI/Assistant Draftsman at Mapping Section, West District, Delhi. On that day, at the request of Inspector Shyoram, he visited the place of incident i.e. WZ-161, First Floor, Basai Darapur, Delhi and took rough notes and measurement at the instance of IO Inspector Shyoram. He further deposed that on 08.08.2016, he prepared scaled site plan Ex.PW3/A and handed over the same to IO on 18.08.2016. Rough notes were destroyed after preparation of scaled site plan.
12.During cross-examination on behalf of accused, PW3 stated that no public person met him at the spot when he visited there, however, some public persons were present at ground floor of the house. He also stated that IO got open the lock of the said house in his presence.
13.PW-4 ASI Madan Lal deposed that on 22.07.2016 he was posted as Duty officer at PS Moti Nagar. On that day, he recorded DD No. 40B Ex.PW4/A regarding departure of Inspector Shyoram Singh alongwith accused Vishnu Subedi to Darjeeling, West Bengal and Ct. Pravesh, H. Ct. Amrit and HC Om Vir.
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14.PW4 was not cross-examined on behalf of accused despite opportunity given.
15.PW-5 SI Devender Singh deposed that on 17.07.2016, he was posted as SI/Incharge of Mobile Crime Team, West District, Delhi. On that day, upon receipt of wireless message from District Control Room, he alongwith Ct. Sunil (photographer) and ASI Champa Lal Meena (Finger print expert) visited the spot i.e. WZ-161, Basai Darapur, Moti Nagar, Delhi where IO SI Yograj and police staff met them and they found a room at first floor locked and smell was coming from inside the room. He further deposed that he got photographed the door of the locked room and thereafter, door of the said room was got broken and they went inside the room and found a dead body of a male young boy aged about 37 years which was lying on dari which was on the chatai on the floor. He further deposed that the dead body was in decomposed condition and there was one cloth wrapped around the neck of the dead body and blood was lying on the floor near dead body. He further deposed that one half empty bottle of Whisky Royal Stag and one empty bottle of soda were lying under the charpai in the room and one mobile was also lying on table in the room. He further deposed that one half filled glass of liquor was also lying near the table on floor and two boxes i.e. one iron box and one suitcase were also lying in the room and their locks were broken. He further deposed that one broken lock was also lying near the bottles of liquor and soda and no chance print could be lifted from the spot as the same were not available. He further deposed that photographs of the spot and said FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 9 of 75 articles and dead body were also taken by photographer from different angles. PW5 prepared his report Ex.PW5/A.
16.During cross-examination on behalf of accused, PW5 stated that they reached at the spot at about 9.15 am and he prepared scene of crime report at the spot. He did not obtain signatures on scene of crime report as witness of any of the member of crime team or the police official of local PS. He further stated that he remained at the spot for about one hour. He further stated that the dead body was in a condition to identify the same.
17.PW6 Sh. Santosh Tripathy deposed that on 26.08.2016, one sealed cloth parcel having the seal of SR was received in the office of FSL Rohini and the same was marked to him for chemical examination. The seals were found to be intact and tallied with specimen seal impression. He further deposed that on opening the said parcel, it was found to contain Ex.1 i.e. light brown colour liquid volume 100 ml approximate kept in a plastic bottle make 'MAAZA'. He further deposed that on chemical examination, Ex.1 was found containing 'ethyl alcohol'. After examination, the remnants of exhibit were sealed with the seal of STY FSL DELHI. His detailed chemical report is Ex.PW6/A.
18.This witness was not cross examined on behalf of accused despite opportunity given.
19.PW7 Surender Kumar, Nodal Officer had brought the original record pertaining to mobile no. 9810803056 i.e. customer application form which was issued in the name of Brahma Padadhikar Ex.PW7/A, photocopy of identity proof of the subscriber Ex.PW7/B, CDR of said mobile FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 10 of 75 phone w.e.f 10.07.2016 to 20.07.2016 Ex.PW7/C and location chart of said mobile Ex.PW7/D (Colly). PW7 had also brought the original customer application form of subscriber namely Vishnu Subedi pertaining to mobile number 9599893462 Ex.PW7/F, photocopy of Aadhar Card of subscriber Ex.PW7/G, CDR of mobile number w.e.f 10.07.2016 to 20.07.2016 Ex.PW7/H, location chart of said mobile number Ex.PW7/I and certificate u/s 65B of Indian Evidence Act Ex.PW7/J.
20.During cross-examination, PW7 stated that both the connections were prepaid and therefore, there is no need of physical verification, however, tele verification was required and was done. He further stated that the re- verified stamp and signatures does not bear his signatures at point X on Ex.PW7/A. PW7 admitted that Ex.PW7/A was not filled up in his presence, therefore, he could not verify the signatures of subscriber. He further admitted that both the location chart of mobile numbers 9810803056 & 9599893462 does not bear his signatures and stamp of the company.
21.PW8 Dr. V.K Ranga deposed that on 18.07.2016 he had conducted postmortem on the dead body of deceased Rishi Ram Panth, 37 years male vide postmortem report no. 1146/16 dated 18.07.2016 vide detailed report Ex.PW8/A. He further deposed that deceased had sustained two external injuries as mentioned in postmortem report. The cause of death was due to hemorrhagic shock via injury no.1 which was sufficient to cause death in ordinary course of nature, injury no.1 was caused by sharp edged weapon and injury no.2 was caused by blunt force weapon and the FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 11 of 75 possibility of homicide could not be ruled out. He further deposed that time since death was approximately 3-4 days prior to conduct the postmortem examination. He further deposed that on 18.08.2016 IO Inspector Shyoram came to him in the hospital and submitted his written application Ex.PW8/D for seeking subsequent opinion and he produced one sealed parcel having the seal of SR, which found containing one knife. He also submitted the photocopy of postmortem report. PW8 examined the same and gave his subsequent opinion Ex.PW8/B. PW8 further deposed that he took photo of knife and scale Ex.PW8/C for the purpose of examination. He further deposed that he resealed the knife in a parcel which was sealed with the seal of 'PMDDUH' and handed over the same to IO with sample seal and other papers.
22.During cross-examination on behalf of accused, PW8 stated that he did not remember if videography and photographs of the postmortem proceedings were done or not. He stated that the age of the deceased had been mentioned by him in the report on the basis of documents furnished alongwith the inquest papers by the IO. He also stated that the face of the dead body was not disfigured/mutilated and it was identifiable. He stated that there could be variation of one day (+/-) in the time period given subsequent to time since death. He voluntarily stated that the said variation may occur due to climatic changes such as moisture, temperature etc. He also stated that there were decomposition changes in the body as mentioned by him in his postmortem report. He further stated that he could not give any exact opinion regarding the time at FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 12 of 75 which the injuries were sustained by the deceased prior to his death. The injuries on the body of the deceased had been inflicted on the same time and same could be ascertained by colour changes. PW8 admitted that in his subsequent opinion, he did not mention regarding the seal which was on the parcel that he had received from the IO. He also admitted that he was having the knowledge of brief facts of the case prior to conducting the postmortem. He denied the suggestion that he had given the subsequent opinion at the instance of the IO without examining the alleged weapon of offence.
23.PW9 W. Ct. Soniya Rathi deposed that on 17.07.2016, she was working as operator at Channel No.110. On that day, he received a call at about 08:04 am and recorded the same vide said channel no.110. PW9 had brought the office record of the said entry. She further deposed that she had flashed the message on net and informed the Command Room in respect of the said information.
24.This witness was not cross-examined on behalf of accused despite opportunity given.
25.PW10 Sh. Kamal Prasad deposed that in July, 2016, he was running a shop of pizza and pasta in Sector-6, Dwarka. His younger brother deceased Rishi Ram Pant was residing at house No.WZ-161, Basaidara Pur for last one and half years and was working in Netaji Subhash Place for last 8-10 years. He further deposed that his wife and children and the wife and children of his brother Rishi Ram were residing in Nepal. He had gone to his village one month prior to the death of his brother Rishi, however, Rishi Ram was residing in his house. He further deposed FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 13 of 75 that he returned from his village on 05.06.2016 and stayed with his brother Rishi Ram. On the next morning, he went to his house to reside.
26.He further deposed that on 09.07.2016, he talked to his brother Rishi Ram on telephone. Thereafter, he did not meet him nor had any talk with him. On 16.07.2016 at about 04/05 pm, he made a call on the mobile number of his brother Rishi Ram but his mobile phone was switched off. He further deposed that he tried to contact to his brother on his mobile phone two - three times but could not contact him. He further deposed that he received a call from the wife of Rishi Ram who informed that she was not able to contact her husband on his mobile phone for last two three days.
27.He further deposed that on 17.07.2016, he went to the address of his brother at Basaidara Pur at about 06:00 am and found the door of the room of Rishi Ram locked from outside. He asked from the landlord about his brother who told that he had not seen Rishi Ram for last two - three days. He further deposed that the shoes and slippers of his brother were outside the room and a foul smell was coming from the room. Thereafter, he made a call on 100 number from his mobile phone no.9899569077, then he alongwith landlord saw inside the room from the window and found that his brother was lying dead on the mat under the cot. After some time, police came and the door of the room was broken open and the dead body was found lying in the room. Police recorded his statement Ex.PW10/A. Thereafter, crime team was called. He further deposed that mobile phone no.9810803056 which was being used by his FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 14 of 75 brother Rishi Ram, was missing from the room. The lock of the briefcase of Rishi Ram was found broken and the locks of boxes kept in the room were also found broken. The articles including purse, ID proofs etc. of his brother kept in the briefcase and the boxes were also missing. Other articles of the room were found scattered including TV etc. He further deposed that one half bottle of Royal Stag Whiskey and one glass were also lying there. He stated that the small cylinder kept in the room was disconnected from the stove and the gas pipe was cut and the towel (gamcha) was wrapped around the neck of his brother. The blood stains were found in the room on different places and police had also seized the blood from the spot. He further deposed that dari on which his brother was found was soaked with blood. IO seized the above said articles after converting into different sealed parcels. He further deposed that one broken mobile phone was also recovered from the spot and same was seized by the IO vide seizure memo Ex.PW10/I. He further deposed that the dead body was sent to DDU Hospital Mortuary and was preserved there. On the next day, he alongwith police went to DDU Hospital Mortuary where the postmortem on the dead body of his brother was conducted. He had identified the dead body of his brother vide memo Ex.PW10/J and after postmortem, the dead body was handed over to him vide memo Ex.PW10/K. He further deposed that accused Vishnu Subedi is resident of his village and his distant relative and he had friendly terms with his brother. He further deposed that he used to find accused in the room of his brother as and when he visit to the room of his brother.
FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 15 of 75 Accused used to consume the liquor with his brother. He further deposed that he had checked the CCTV footage of camera installed at the shop of Tirupati Flowers at Netaji Subhash Place and he found that one person having covered his face with handkerchief was moving there and his height and other features were similar to accused Vishnu Subedi. IO had seized the DVR containing the said CCTV footage vide seizure memo Ex.PW10/L. One employee of Deeps Fast Food where his brother was working had told him that one boy was disturbing Rishi Ram by saying that they had to go early and Rishi Ram had gone alongwith that boy. He further told that Rishi Ram did not report for his duty after 14.07.2016.
28.PW10 identified one dari of cloth and one plastic mat as Ex.PW10/P1, one broken metallic lock of Lancer Atoot as Ex.PW10/P2, one empty plastic bottle of MAAZA as Ex.PW10/P3, one glass made of glass as Ex.PW10/P4, one bottle of glass having label of Royal Stag and one plastic bottle of Xalta 600 ML club Soda as Ex.PW10/P5 (colly), one lock of Tomson Speed as Ex.PW10/P6, one mobile of black colour having red colour cover as Ex.PW10/P7 (colly). He had also seen the hard disc played in the computer with the help of system provided by IO and in the said footage, he had identified accused Vishnu Subedi who was seen in the timeline of the footage between 17.34.09-17.34.11, 17.34.37-17.34.46, 17.40.10-17.40.11 and 17.40.15-17.40.22 while wearing blue colour T-shirt having white stripes, navy blue capri and brown colour leather slippers with lower portion of face covered with white handkerchief upto nose. He also exhibited the said FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 16 of 75 hard disc as Ex.PW16/P1. He also identified the accused in photographs Ex.PW10/P8 and Ex.PW10/P9. He further identified mobile phone of his brother make Samsung of white colour having brown and white colour and picture of boy and girl on back side of cover and exhibited the said mobile as Ex.PW10/P10. He also identified one purse of brown colour containing I-card of citizenship of Nepal of deceased Rishi Ram having his photograph and particulars, old currency notes of Rs.11,430/-, some slips, visiting cards, photographs as Ex.PW10/P11. He also identified 13 photographs of his deceased brother as Ex.PW1/B1 to Ex.PW1/B6, Ex.PW1/B9, Ex.PW1/B13 to Ex.PW1/B18 and Ex.PW1/B24 and Ex.PW1/B25.
29.During cross-examination on behalf of accused, PW10 stated that at the time of incident, his deceased brother was working at Deeps Fast Food, Netaji Subhash Place, Delhi. He also stated that at the time of starting of said Deeps Fast Food, he was working at 17, Tuglak Road, Delhi as office boy and getting Rs.15000/- per month as salary. He further stated that his deceased brother was 10th pass and was cook of South Indian and Chinese dishes. He also stated that his brother was living in Delhi about three-four years prior to starting of Deeps Fast Food and during those 3-4 years, he had worked several places to learn the work of cooking. PW10 also stated that during that period of 3-4 years, his family members and family members of deceased Rishi Ram used to visit them in India. He also stated that he and his brother were living separately on rent due to their different working places and they used to share their income. He further stated that his brother used to send FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 17 of 75 his part of salary to their parents at Nepal. He further stated that the rented room (at Moti Nagar) of his deceased brother was at a distance of about 12 to 15 km from Dwarka and 5 km from his working place at Netaji Subhash Place. He also stated that he used to visit the rented room of his deceased brother twice or thrice in a month and also used to stay there in night. He denied the suggestion that they were not living together as there used to be quarrel/dispute between them. He also stated that his brother used to consume liquor but he did not receive any complaint from the side of his brother regarding any nuisance created by him after consuming liquor. He further stated that he used to object his brother for the drink party with his friends.
30.PW10 stated that his brother used to call his one or two friends i.e. accused Vishnu Subedi and other whose name he did not remember, at his rented room on his visit there. He further stated that accused Vishnu Subedi was well known to him as he was the resident of Nepal. He did not know about the other friend of his deceased brother who was working with him at his working place, who was aged about 28 to 30 years and that boy was not living with his brother. He further stated that no girl had ever come during his presence at the rented house of his brother. He further stated that he did not receive any complaint telephonically from any girl against his deceased brother. The wife of his brother also did not make any complaint to him against his deceased brother regarding his relation/involvement with any girl at any point of time. He further stated that he did not know any girl who was in friendly terms with his FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 18 of 75 deceased brother.
31.He stated that accused Vishnu Subedi is their relative as he is the son of maternal uncle of his father. He also stated that at the time of incident, accused was married and at the time of incident, accused was residing somewhere in Punjabi Bagh on rent. He also stated that his deceased brother did not make any complaint to him against accused Vishnu Subedi and also did not inform him that accused Vishnu Subedi was having any girl friend or not. He did not know as to where the accused was working at the time of incident. He did not know if the owner of the Deeps Fast Food was doing any other business like flowers etc. He did not visit the said shop of flowers in front of Deeps Fast Foods prior to the incident. He stated that he visited the said shop of flowers on 02/03.08.2016 alongwith the IO and one more police official as the police officials had told him about the installation of CCTV camera there and recording of footage of accused therein. He also stated that the owner of the said shop of flowers had shown him the footage of recording. After seeing the footage, he had informed the police officials about the presence of the accused therein. Prior to that, the police officials did not inform him about the accused of this case. He had also seen the CCTV footage on his second visit at the shop of flowers with the police. On both the occasions, he had informed the police about the presence of the accused in the recording of CCTV footage. He further stated that police had also checked the CCTV footage of camera installed at Deeps Fast Food but the accused was not appearing/shown in the said CCTV footage. The gate and FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 19 of 75 the corridor of Deeps Fast Food were visible in the recording of CCTV footage of camera installed at flowers shop. He also stated that there was only one entry gate at Deeps Fast Food. He had not seen the accused in the said footage entering into the Deeps Fast Food through entry gate.
32.Hard disc was played in the court and after seeing the same, PW10 stated that the gate of the shop where his deceased brother was working was not seen in the CCTV footage but the counter of the shop was seen in the same. Deceased was also not seen in the entire footage. PW10 denied the suggestion that accused Vishnu Subedi was not seen in the entire footage or that he pointed out towards a person in the footage to be the accused Visnhu Subedi on the basis of his guess or that he had wrongly identified him to be accused Vishnu Subedi in the footage. He further denied the suggestion that he had wrongly identified the accused in the footage at the instance of the IO. He stated that the name of the shop in which his deceased brother was working was also not seen in the footage. He further denied the suggestion that the shop where his deceased brother was working was not seen in the entire footage.
33.PW10 stated that in the footage, it is visible that the person with handkerchief on his mouth is standing in front of the counter of Deeps Fast Food and talking to someone behind that counter. He stated that he visited Deeps Fast Food twice during the investigation with the police i.e. on 17.07.2016 and 03.08.2016. He stated that he met with the accused about two and half month prior to the incident at the rented room of his brother where he was taking drink FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 20 of 75 with his brother and there was no other person in that room on that day except them. PW10 denied the suggestion that his brother was a habitual drunker or that due to this reason, there used to remain quarrel between them. He deposed that his brother was earning Rs.14000/- to Rs.15000/- p.m. PW10 denied the suggestion that his brother was not working with him as they were not having the good relation or that due to this reason, they were living separately.
34.PW10 stated that he had doubt upon the accused regarding murder of his brother as accused used to take drink with his brother in his rented room and also that accused was absent at the time of occasion of last rites of his brother. He also stated that he called the police on 100 number after visiting the room of his brother as he had found that the door of the room was locked and the slipper and the shoes of his brother were lying outside the room and some smell was also coming out from the door of the room. Thereafter, he went to the back side of the room and saw through the small window that the body of his brother was lying on the floor in his rented room. He also stated that there was one mobile phone lying in the room near the dead body of his brother and the screen of the phone was broken. He further stated that he did not know about the savings of his brother which he kept in suitcase at the time of incident. He denied the suggestion that the mobile phone which was recovered from the spot belonged to him. He denied the suggestion that he did not provide any SIM to his brother for his use which was issued in the name of his friend Mr. Adhikari. He further denied the suggestion that he with the FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 21 of 75 connivance of Mr. Adhikari had committed the murder of his brother on account of his ongoing dispute with his brother or that he had falsely implicated the accused in the present case to save himself.
35.PW11 Sh. Subhash Tyagi deposed that he was the owner of House No. WZ-161, Basai Darapur, Delhi in which deceased Rishiram Pant was residing as tenant for the last about one and half years prior to the incident. He further deposed that dead body of Rishiram Pant was found lying in the tenanted room at first floor in decomposed condition. On 21.07.2016, accused Vishnu Subedi came there alongwith police officials and pointed out the room of the deceased which was at South East corner and he stated that he had committed the murder of deceased there. IO prepared the pointing out memo Ex.PW11/A.
36.During cross-examination on behalf of accused, PW11 stated that he did not meet the accused prior to 21.07.2016. He also stated that no rent agreement was executed in between him and deceased. He did not issue any receipt regarding the rent to the deceased. He also stated that he did not see the accused in above said house prior to 21.07.2016. He further stated that accused had pointed out the room of the deceased in his presence. There were four/five police officials with accused at that time and no other interrogation was made by the police from the accused in his presence. He also stated that he had seen the dead body of deceased from outside the room through door of the room. The dead body of the deceased was facing towards sky. The face of the deceased was having swelling and looking similar to his tenant. He also stated that there FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 22 of 75 was no other public person with the police at that time. He denied the suggestion that accused did not point out the room of the deceased in his presence or that he was deposing falsely.
37.PW12 Sh. Brahma Padadhikari deposed that he got issued SIM no.9810803056 on ID proof of his address and had given the same to his friend Kamal Prashad Pant, who was working with him at 17, Tuglak Road Lane, New Delhi as a servant who had given the said SIM to his brother Rishiram Pant for use.
38.During cross-examination, PW12 stated that he did not remember the year when he handed over the SIM to the brother of the deceased. He stated that perhaps he had got issued the said SIM in the year 2007. he also stated that he had given the said SIM to Kamal Prashad Pant as he was not having the ID proof at that time. He further stated that he did not know as to whom Kamal Prashad had given the said SIM. He further stated that police had made inquiry from him on telephone and no police personnel had come to him regarding inquiry of the said SIM. He further stated that he did not have any documentary proof that he and Kamal Prashad Pant were working in a kothi at 17, Tuglak Road Lane, New Delhi. He denied that he was using the said SIM or that he never gave the same to Kamal Prashad Pant.
39.During cross-examination, Ld. APP for state sought permission to re-examine the witness as the witness had changed his version during course examination. During cross-examination by Ld. APP for the State, PW12 denied the suggestion that he had given the said SIM to the FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 23 of 75 deceased Rishiram Pant on asking of his brother Kamal Prashad Pant and he had stated this fact to the IO in his statement Ex.PW12/PA. He further denied the suggestion that IO of this case came to him and he had voluntarily given his statement Ex.PW12/PA to the IO.
40.PW13 Sh. Dhanprasad deposed that on 18.07.2016, he had gone to DDU Hospital Mortuary and identified the dead body of son-in-law of his co-brother namely Rishiram Pant and his statement Ex.PW13/A in this regard was recorded by the police. He further deposed that after the postmortem, he had also received the dead body of Rishiram Pant vide receipt Ex.PW10/A.
41.During cross examination on behalf of accused, PW13 stated that the face of the deceased Rishiram Pant was identifiable.
42.PW14 Smt. Prem Lata deposed that she was running a small restaurant at Pitam Pura where her son Vishal Tandan also helped her in running the said restaurant and deceased Rishiram Pant was her servant at the said restaurant. She further deposed that she did not remember the date, however, in the middle of month of July, 2016 at about 05:00/05:30 pm, one boy came at the counter of her restaurant who was the friend of Rishiram Pant. She further deposed that Rishiram Pant told her that he had to go with the said boy for some urgent work and thereafter, Rishiram Pant left the restaurant with him. She stated that the aforesaid boy had covered his face with the handkerchief and was also having the spectacles on his eyes. She further deposed that their servant Rishiram was serving with them for the last about 8 years at that time.
FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 24 of 75 She stated that thereafter, he did not turn up to their restaurant. Later on, she came to know from the brother of deceased about his murder. She further deposed that police met her and recorded her statement.
43.During cross-examination on behalf of accused, PW14 stated that the behaviour of the deceased Rishiram Pant was good and that the friends/relatives of the deceased were not the frequent visitors. She also stated that Rishiram Pant did not disclose the reason about his leaving the restaurant with that boy. She further stated that the said boy who had covered his face with the handkerchief had stayed on her restaurant for about 2/3 minutes on his first visit and thereafter, he left from there and again came at restaurant and then, he left alongwith the deceased. She also stated that she had not maintained any record regarding the service of Rishiram Pant. She denied the suggestion that deceased was not working in their restaurant or that no one had come on that day.
44.PW15 Sh. Mahesh Singh deposed that he was running a shop of Tailor at Ground Floor, WZ-161, Basai Dara Pur, Delhi for last about 10 years. He usually open his shop at 10:00 am and closed the same at about 09:30 pm. He further deposed that in the same building, there were 5/6 tenants. Deceased Rishiram Pant was also residing there at the first floor in a corner room for the last about one and half years. He further deposed that the brother of deceased Rishiram Pant used to come there to meet him. He further deposed that about one year back, he came to know about the murder of Rishiram Pant when his dead body was found lying in decompose condition in his tenanted room.
FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 25 of 75 He further deposed that IO of this case met him and recorded his statement.
45.Ld. APP for state sought permission to cross-examine the witness as the witness was allegedly resiling from his earlier statement made to the police. During cross- examination by Ld. Addl. PP for state, PW15 denied the suggestion that accused Vishnu Subedi used to visit the deceased at his tenanted room or that he had also seen them together while taking liquor in the tenanted room of deceased as he used to visit the first floor to use toilet. He also denied the suggestion that on 14.07.2016 at about 08:00/08:10 pm, he had seen the deceased and accused together while entering into the house. PW15 admitted that after 14.07.2016, he did not see Rishiram Pant. PW15 denied the suggestion that he had seen accused with deceased in his room while taking liquor. He further denied the suggestion that accused also used to visit the deceased at his tenanted room. She denied that her statement Ex.PW15/A portion A to A and B to B was his true and correct statement which was made by her to the IO of this case. She denied that she had been won over by the accused and as such suppressing truth and deposing falsely to save him from the present case. During her cross-examination by Ld Amicus Curiae for the accused, she admitted that she had deposed before the Court today of her own free will and without any pressure from any corner.
46.PW16 Sh. Satish Chand Saini deposed that he was running a flower shop in the name of Tirupati Flowers at G-34, Aggarwal Millennium Tower, Netaji Subhash Place, FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 26 of 75 Pitampura, Delhi. On 14.07.2016, at the request of IO of this case, he had shown the CCTV Footage of the Camera which was installed at his shop and had also taken out the hard disc from the DVR and handed over the same to the IO. He further deposed that one sticker was pasted on the hard disc on which he had put his signatures and IO had also seized the same vide memo Ex.PW10/L and IO kept the same in a cloth parcel and sealed the same with the seal. He also identified the hard disc Ex.PW16/P1 produced by MHC(M). He also identified the CCTV Footage which was recorded in the hard disc of cameras installed in his shop and same was provided by him to the IO. He had also issued certificate under Section 65B of the Indian Evidence Act Ex.PW16/A.
47.During cross-examination on behalf of accused, PW16 stated that the footage of recording is stored in the system for about one month and thereafter, it automatically get deleted. He further stated that the said footage was also played in his presence by the police officials on the date of taking the same from him and at that time, he and his two employees were present there.
48.PW17 Ms. Anju deposed that accused Vishnu Subedi is well known to him. She further deposed that she was residing at the address of Naraina alongwith her sister and her family for the last about 5-6 years. He further deposed that accused used to come there and hence, they became friends and were planning for marriage. She further deposed that her husband had expired about 8 years back and she had one son. She further deposed that accused Vishnu Subedi was the resident of West Bengal. She had FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 27 of 75 gone to her native place at Darjeeling prior to the incident of this case and when she returned to Delhi, she came to know that accused was in jail in a murder case. Thereafter, she did not meet him.
49.During cross-examination on behalf of accused persons, she stated that she never met with any friend of accused Vishnu Subedi and she did not know any person by the name of Rishiram. She also stated that she had lastly met with accused Vishnu Subedi about 15 days prior to going to her native village. She also stated that accused did not disclose her about any quarrel which had taken place between him and his friend. She also stated that accused was not arrested in her presence. She also stated that she came to know about the involvement of accused in the present case from police official.
50.PW18 Inspector Hemant deposed that on 17.07.2016, an information was received in the PS vide DD No.14A regarding coming of smell from a locked room of House No. WZ-161, Basaidara Pur, Delhi. The said DD was marked to SI Yograj for making inquiry and he alongwith PSI Gautam left the PS for the spot. He further deposed that he also visited the spot and found that the above said room which was at the first floor of the house was locked and smell was coming from it. Insp. Shyoram also reached there alongwith Ct. Deepak. He further deposed that thereafter, SI Yograj called the crime team at the spot and members of crime team reached there and they opened that room with the help of hammer and chhaini. He further deposed that in the room, they found that dead body of a male was lying on a mat which was lying on the floor and FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 28 of 75 the said dead body was in decomposed condition. One cloth was wrapped in the neck and face of the dead body was having blood. He further deposed that the deceased was wearing lower and sando vest of white colour. The brother of the deceased Komal Prashad Pant was also present there, who identified the dead body as that of his brother Rishiram. He further deposed that the photographer took the photographs of the spot and Incharge of the Crime Team inspected the spot. IO SI Yograj seized the broken lock of Lancer Atoot. He further deposed that he informed his Sr. Officers about the incident and thereafter, left the spot after giving necessary instructions to the IO and the staff.
51.During cross-examination on behalf of accused persons, PW18 stated that the face of the dead body was towards roof. He also stated that the age of deceased was about 35 years but he could not tell the height of the deceased. He also stated that the lock of the room was broken and was seized in his presence. He further stated that he remained at the spot for about two and half hours. He also stated that cloth was wrapped on the neck and face of the dead body but he could not say whether it was single or double as the same was not removed in his presence. He also stated that no injury mark was apparently seen on the body of the deceased and that the brother of the deceased identified the dead body as that of his brother while the cloth was wrapped on the face and neck of the dead body. He denied the suggestion that the dead body was not in an identifiable condition. He further denied the suggestion that he did not visit the spot or that the brother of the deceased did not FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 29 of 75 identify the deceased in his presence at the spot.
52.PW19 Ct. Balraj deposed that on 17.07.2016, he was posted as constable at P.S Moti Nagar, Delhi. On that day, the Duty Officer had handed over three copies of FIR to deliver the same at the residence of Ld. MM, Joint CP and DCP concerned. Accordingly, he delivered the copy of FIR at their respective residence.
53.This witness was not cross-examined on behalf of accused despite opportunity given.
54.PW20 Sh. Anupam Vohra deposed that he was running a business of catering and organizing events and he is the owner of Shop No. 29/30, New Janta Market, Paschim Puri Chowk, Club Road, Punjabi Bagh, Delhi. He further deposed that accused Vishnu Subedi alongwith his uncle Ashok Kumar was residing in a room above the shop at the time of incident. He further deposed that Ashok Kumar was working with him in his company i.e. Delux Fine Catering and hence, he provided the said room to Ashok Kumar for living without any rent. He further deposed that accused Vishnu Subedi lived there for about 8 months and his uncle Ashok Kumar lived there for about 2 years.
55.This witness was also not cross-examined on behalf of accused despite opportunity given.
56.PW21 Sh. Mahendra Singh Niranjan deposed that on 29.08.2016, one parcel sealed with the seal of SR was received in the office of FSL Rohini in the present case from Ct. Dharmender and same was marked to him for examination. He further deposed that on opening the parcel, it found containing one hard disk drive Ex.HDD1. After examination, as per request of the forwarding FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 30 of 75 authority, he had copied the data of Ex.HDD1 in two blank supplied hard disks. He further deposed that the exhibit was resealed with the seal of FSL M.S. N DELHI and he filed his detail report Ex.PW21/A.
57.During cross-examination on behalf of accused, he stated that he did not see the footage contained in the said hard disk. He could not tell the duration of the said footage. He also could not tell the exact time which he had taken to copy Ex. HDD1 in two blank hard disks. He denied the suggestion that required manipulations at the instructions of IO were made by him while copying the data from exhibit HDD1.
58.PW22 Sh. Parshuram Singh deposed that on 29.08.2016, two sealed parcels of the present case having specimen seal were received in the office of FSL Rohini, Delhi and same were marked to him for examination. On examination, he found there was one metallic lock in parcel no.1 Ex.1 and other parcel was found containing one metallic key Ex.2. The lock Ex.1 and key Ex.2 were examined physically and under magnification. He further deposed that the lock Ex.1 was not in working condition due to forcible opening. The number i.e. 40291 and make LanceR mentioned on the lock and the key were found same. He further deposed that the circular impression made by the key on the inner surface of the lock corresponds to the lower portion of the key. There were no other extraneous marks present inside the lock near the circular mark. He also deposed that the above observations indicate that Ex.2 could be the key of lock Ex.1. He filed his detailed report Ex.PW22/A. After examination, the FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 31 of 75 parcels containing the exhibits/remnants were resealed with the seal of PS FSL DELHI.
59.During cross-examination, PW22 stated that he did not find anything which would have ruled out that Ex.2 was not the key of the lock of Ex.1. He stated that as far as he remember, the hook of Ex.1 was attached to the lock at the time of examination. He also stated that as there were no extraneous marks present inside the lock, therefore, it could be said that no duplicate key or other foreign tool was used to open or operate the said lock. He did not remember as to whether there were any marks on the key on the basis of which, it could have been said that some manipulations have been done with the said key. He denied the suggestion that the key Ex.2 was not of the lock Ex.1 or that he had given his opinion at the instance of the IO.
60.PW23 Sh. Kaushal Kumar deposed that on 26.08.2016, six parcels sealed with the seal of SR were received in the office of FSL Rohini and were marked to him for examination. He also deposed that on opening the parcels, they found containing the exhibits as mentioned in report Ex.PW23/A. He also deposed that blood was detected on exhibits 1, 2a, 2b, 3, 5a, 5b, 5c and 6. Blood could not be detected on exhibit 4. He further deposed that after examination, exhibits were resealed in the parcels with the seal of KK FSL DELHI. He also prepared serological report of the said exhibits Ex.PW23/B. He further stated that blood of 'O' group was detected on Ex.6 i.e. gauze cloth piece.
61.This witness was not cross examined on behalf of accused despite opportunity given.
FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 32 of 75
62.PW24 SI Gautam deposed that on 17.07.2016, upon receipt of DD No.14A, he alongwith SI Yograj reached at the spot i.e. first floor of House No.WZ-161, Basai Dara Pur and found that the main door of the flat was locked. Smell was coming from inside the flat. He further deposed that IO SI Yograj called the crime team. In the mean time, SHO PS Moti Nagar alongwith staff also reached there. IO got broken the lock of the door with the help of hammer and chainee and they found a dead body of a male person was lying on the floor in decomposed condition. He further deposed that the crime team visited the spot and photographer took the photographs of the spot and that of the dead body. The brother of the deceased namely Kamal Prashad Pant was also present there who identified the dead body of deceased as that of his brother. He further deposed that IO had also seized the lock, which was lying on the door and got opened by the IO, vide seizure memo Ex.PW24/A and IO sealed the same in a cloth parcel with the seal of YSD. He further deposed that IO recorded the statement of the complainant and endorsed the same and same was handed over to him for getting the FIR registered from PS Moti Nagar. He took the same to PS Moti Nagar, got the FIR registered through DO and returned to the spot and handed over the same to the IO Insp. Shyoram for investigation. He further deposed that one empty liquor bottle of Royal Stag and one bottle of soda were lying under the cot in the room. One glass half filled with the liquor was also lying under the table. He further deposed that one mobile phone having cover of red and blue colour was also lying on the table, whose screen FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 33 of 75 was broken and there was no SIM in the said mobile phone. He further deposed that one more lock was also lying under the cot and IO poured the liquor of the glass in separate glass bottle and tied the cap of the bottle. The dead body of the deceased was lying on the dari and taat. IO lifted the blood samples with the help of the cotton and kept the same in a plastic container. He further deposed that IO also lifted the earth control from the spot. IO kept the blood sample and earth control in separate plastic containers and sealed the same with the seal of SR. IO had also seized the cloth dari and taat of plastic from the spot and kept the same in cloth parcel and sealed the same with the seal of SR. He further deposed that IO had also seized the empty bottle of liquor and empty bottle of soda of plastic from the spot and kept the same in a cloth parcel which was sealed with the seal of SR. IO had also seized the lock which was lying under the cot and sealed the same in a cloth parcel with the seal of SR. IO had also seized the glass and the bottle in which the liquor was poured through seizure memo and sealed the same with the seal of SR. IO had also seized the mobile phone which was lying on the table whose screen was broken and sealed the same in a cloth parcel with the seal of SR. After use, seal was handed over to him by the IO. He identified the broken metallic lock of Lancer Attot Ex.PW10/P2.
63.During cross-examination, PW24 stated that they reached the spot at about 08:45 am and at that time, some public persons, neighbours and landlord of the rented room were already present at the spot. He also stated that there was no mark on the lock which was lying on the door of the room FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 34 of 75 of the deceased which could show that somebody had tried to open the same. He also stated that the hammer and chhainee were in the kit of IO SI Yograj. He also stated that there was a window of about 2 to 2.5 ft on the back side of the room of deceased which was installed at the height of 2.5 ft. from the floor. He also stated that one could see in the room through the window and the dead body of the deceased was visible from the window. He did not remember if there was any ventilator above the main door. He also stated that IO had recorded the statement of complainant prior to the arrival of SHO at the spot. He took the rukka in the presence of the SHO to PS for getting the FIR registered. He also stated that IO had asked the landlord about the duplicate key of the room of the deceased but the same was not available with him at that time. He further stated that IO had got opened the lock in his presence prior to the registration of FIR and had also inspected the room prior to sending the rukka to PS. He further stated that SHO was also present there at the time of inspection of room of deceased.
64.He further stated that the dead body of deceased was lying in the room facing towards the roof and was wearing lower and sando baniyan and that the face of the dead body was in decomposed condition. He denied the suggestion that the face of deceased was not in a condition to be identified. He further stated that exhibits were seized in the presence of crime team after the registration of FIR. He also stated that no weapon of offence was seized from the spot in his presence and that no weapon is visible in photograph Ex.PW13/B-24.
FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 35 of 75
65.PW25 H. Ct. Omvir deposed that on 22.07.2016, he alongwith IO Insp. Shyoram, H. Ct. Amit, Ct. Parvesh and accused Vishnu Subedi, went to West Bengal, Darjeeling and at the instance of accused, they reached at the house of his girl friend situated at Village Fari, Samsing, PS Jaldhaka, District Darjeeling, West Bengal and from the said house, accused took out two mobile phones make LAVA of black and sliver colour having cover without SIM and Samsung of white colour having cover of white and brown colour without SIM and produced the same to the IO. He deposed that accused stated that the mobile phone make Samsung belonged to deceased Rishiram and IO seized both the mobile phones vide separate memos Ex.PW25/A and Ex.PW25/B and sealed the same in separate cloth parcels with the seal of SR. He further deposed that seal after use was handed over to him and thereafter, they returned to Delhi. He also identified the mobile phone make Samsung Duos (IMEI No. 357386063468690 & 357387063468698) of white colour having cover of brown and white colour Ex.PW10/P10 and also identified another mobile phone make LAVA (IMEI No.911496800973909 & 911496801840909) of black colour containing battery and having cover of black colour & picture of girl on back side of cover Ex.PW25/A1.
66.During cross-examination, PW25 stated that they reached in the said village in the morning hours of 23.07.2016 and IO had made arrival entry in the local PS. He also stated that one constable from local PS had also accompanied them to the said village, whose name he did not remember. He also stated that they reached there in a private vehicle FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 36 of 75 which was hired by the IO from New Jalpaiguddi. He also stated that the girl friend of accused and her family members were present in the house at that time. He also stated that the house was of single storey but some built-up structure was also on the first floor. He also stated that accused took out both the mobile phones lying under the clothes/papers like articles from corner of the room. There were no bed and sofa in the room, however, there was a chair in the room. He further stated that they went to the local PS after the recovery of mobile phones. He also stated that no document from the local PS was collected by the IO in his presence regarding the recovery and carrying the said phones to Delhi. He also stated that IO had booked the train tickets for going to West Bengal and returned to Delhi as told by the IO. He denied the suggestion that no such ticket was got booked by the IO or that they did not visit there or that the mobile phone make Samsung was planted upon the accused or that he did not join the investigation of this case at any point of time or that nothing was recovered at the instance of the accused.
67.PW26 HC Amrit Singh deposed that on 23.07.2016, he had joined the investigation of this case and he alongwith IO, H. Ct. Omvir, Ct. Parvesh and accused Vishnu Subedi left the PS for the village of accused i.e. Fari, PS Jal Dhaka, Darjeeling, West Bengal and accused led them to the house of his girlfriend situated in the above said village and from the room at ground floor, he took out two mobile phones lying on the right side corner of the room under some article and produced the same to the IO. He stated that the said mobile phones were made of LAVA and Samsung and FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 37 of 75 the mobile phone of LAVA was of black and silver colour having the black colour cover which was having the picture on its back side. He further deposed that the mobile phone of Samsung Duos was of white colour having cover of brown and white colour which also having the picture on back side. He also deposed that there was no SIM in the mobile phones and IO had seized both the phones through separate seizure memos already Ex.PW25/A and Ex.PW25/B and kept the same in separate clothes parcels which were sealed with the seal of SR. PW26 identified the said mobile phones Ex.PW10/P10 (Samsung Duos) and Ex.PW25/A1 (LAVA).
68.During cross-examination, PW26 did not remember the exact time when they reached at the house of girl friend of accused but he stated that they reached there in a day time. He stated that two ladies met them there but he did not know as to who were they and what was their relation with the girl friend of accused. He did not remember if IO had recorded the statement of any one of those ladies. He also did not remember if any neighbour was called by the IO to join the investigation. He stated that the room from where the recovery was effected was made of cement and brick but he did not remember the remaining portion of the house was made of wooden or of concrete. He also stated that there were two floors in the said house. He did not remember as to how many rooms were there in the ground floor. He also did not remember if any bed or chair were lying in the said room from where recovery was effected. He stated that both the phones were taken out by the accused together from the corner of the room which were FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 38 of 75 lying under some articles. He also stated that the said phones were not wrapped and kept in any polythene etc. He also stated that accused had disclosed that one of the mobile phones was of deceased Rishi and another belonged to him but he did not remember as to which of the phone was of deceased as stated by the accused. He also stated that IO got issued the ticket of train on the basis of the warrant for New Jalpaiguddi. He did not know if IO got issued any document from local PS regarding taking of case property with himself to Delhi. He did not remember if IO had made any entry in the local PS regarding the recovery of mobile phones.
69.PW27 Ct. Deepak deposed that on 17.07.2016, on receipt of DD No.14A, he alongwith IO reached at the spot i.e. the room at first floor of House No.WZ-161, Basaidara Pur, Delhi and found that the room was locked and foul smell was coming from it. He further deposed that IO called the crime team and members of crime team reached there. The photographer took the photographs of the door and thereafter, IO got opened the door after breaking the lock with the help of chhaini and hammer. He further deposed that they found a dead body of a male which was lying on a mat in decomposed condition. He further deposed that as per the instructions of the IO, he took the dead body of the deceased to DDU Hospital Mortuary and got the same preserved there. He stated that till the time, the dead body remained in his custody, it was not tampered with in any manner and remained intact. He further deposed that on 18.07.2016, IO got conducted the postmortem on the dead body and thereafter, same was handed over to the brother FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 39 of 75 of deceased namely Kamal Prashad Pant. He further deposed that after the postmortem, the doctor concerned had handed over him the parcel containing the clothes of the deceased having the seal of PMDDUH alongwith one envelope and two sample seals of the hospital, which, he handed over to the IO, who seized the same vide memo Ex.PW27/A
70.During cross-examination on behalf of accused, PW27 stated that the face of the dead body was towards roof and was not identifiable normally. He also stated that the brother of deceased was also present at the spot. He did not remember if the dead body of deceased was got identified by the IO through his brother in his presence. He also stated that the brother of deceased did not accompany him to DDU Hospital.
71.PW28 SI Yograj deposed that on 17.07.2016, he was on emergency duty and on receipt of DD No.14A, he alongwith PSI Gautam reached at the spot i.e. the room at first floor of House No.WZ-161, Basaidara Pur, Delhi and found that the room was locked and foul smell was coming from it. In the mean time, Insp. Shyoram and Ct. Deepak also reached there and SHO also visited the spot alongwith the staff. He stated that complainant Kamal Prashad Pant was also present there. He further deposed that he called the crime team and members of crime team reached there. He further deposed that the photographer took the photographs of the door and thereafter, he got opened the door after breaking the lock with the help of chhaini and hammer. He stated that they found a dead body of a male which was lying on a mat in the room in decomposed FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 40 of 75 condition. He further deposed that he seized the broken lock made of Lancer Atoot vide seizure memo and kept the same in a cloth parcel which was sealed with the seal of YSD. He further deposed that crime team inspected the spot. He stated that he sent the dead body of deceased to DDU Hospital through Ct. Deepak for postmortem alongwith written request and he recorded the statement of complainant Kamal Prashad Pant. He stated that he attested the statement and endorsed the same vide his endorsement and handed over the same to PSI Gautam for getting registered the FIR from PS Moti Nagar. After registration of FIR, PSI Gautam returned at the spot and handed over the copy of FIR and original rukka to Insp. Siyo Ram for investigation. He further deposed that Insp. Siyo Ram inspected the spot and prepared site plan and also lifted the exhibits i.e. blood sample with the help of cotton and earth control from the spot and kept the same in a separate plastic containers which were sealed with the seal of SR and seized the same vide seizure memo Ex.PW28/B and Ex.PW28/C respectively. He further deposed that IO had also lifted one half empty bottle of Whisky having label of Royal Stag and one plastic bottle of soda of Xalta of 600 ml and seized the same vide memo Ex.PW28/D and sealed the same in a cloth parcel which was sealed with the seal of SR. He further deposed that IO had also seized another lock of Tomson company which was lying in the room near the cot and kept the same in a cloth parcel which was sealed with the seal of SR and they also found one glass having half filled with Whisky was lying on the floor near table on which one LCD was lying FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 41 of 75 and IO had poured the said whisky in empty bottle and tied the same with the cap and cap of the same was sealed with cloth parcel with the seal of SR and seized the same with seizure memo. He further deposed that IO had also seized one mobile phone which was lying on a table near the LCD in the room having broken screen and kept the same in a cloth parcel which was sealed with the seal of SR. He stated that IO had also seized the dari and taat on which the dead body was lying having blood stains and kept the same in a plastic katta of white colour and the mouth of the same was wrapped with the cloth and sealed with the seal of SR and thereafter, he left the spot.
72.He further deposed that again on 21.07.2016, he had joined the investigation of this case. On that day, he alongwith the IO left the PS in the search of the accused and at about 04:30 pm, they reached at T-point, Club Road, Ring Road, Punjabi Bagh where IO received secret information about the accused that he is moving near Club Road and at the instance of the secret informer, they apprehended the accused at the corner of the Club Road and IO interrogated him and on interrogation, his name was revealed as Vishnu Subedi and on confessing his guilt and involvement in the present case, he arrested him and conducted his personal search. He further deposed that from the personal search of accused, one mobile phone of make Hi-tech and his driving license were recovered and accused also made his disclosure statement. He further deposed that from the search of accused, one raxine purse of brown colour containing Rs.11430/-, some documents and three passport size photographs i.e. one of complainant and two of FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 42 of 75 deceased Rishi Ram, one certificate of citizenship of deceased of Nepal and one key of Lancer was recovered from the back side pocket of his wearing pant and IO seized the same and kept the same in a cloth parcel and sealed the same with the seal of SR. He further deposed that accused disclosed that he could get recovered the weapon of offence and his clothes which he was wearing at the time of incident. Thereafter, accused led them to his house i.e. Shop No.29/30, New Janta Market, Paschim Puri Chowk, Club Road, Punjabi Bagh and from the first floor of his room, he took out one knife which was lying under the bedding on the floor and produced the same to the IO and stated that it was the same knife by which he committed the murder of deceased. IO prepared the sketch of the same and seized the same and sealed the same in a cloth parcel with the seal of SR. He further deposed that accused also took out his clothes i.e. blue colour jeans having label of Low Waist Skinny and one t-shirt of multi- colour i.e. grey, blue, black and white having label of Your Style LBT MAN from under the same bedding and produced the same to the IO and stated that these were the same clothes which he was wearing at the time of incident upon which IO seized the clothes and kept the same in a cloth parcel which was sealed with the seal of SR. He further deposed that after use, seal was handed over to him. He further deposed that accused led them at the place of occurrence i.e. at House No.WZ-161, Basaidara Pur and pointed out the same vide pointing out memo. He also identified one broken metallic lock as Ex.PW10/P2, one dari of cloth and one plastic mat as Ex.PW10/P1 (colly), FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 43 of 75 one empty plastic bottle of MAAZA as Ex.PW10/P3, one glass as Ex.PW10/P4, one bottle of glass having label of Royal Stag and one plastic bottle of Xalta 600 ML club soda as Ex.PW10/P5 (colly), one lock of Tomson Speed ZLVR-20 as Ex.PW10/P6, one mobile of black colour as Ex.PW10/P7, one knife as Ex.PW28/P1 and one jeans pants having label of Buffalo and one T-shirt having label of Your Style LBT MAN as Ex.PW28/P2 (colly).
73.During his cross-examination, he stated that he received DD No. 14A at about 8.30 am and reached at the spot on private two wheeler of PSI Gautam. He could not tell about the distance between the police station and spot. He stated that when he reached at the spot, firstly he met with the caller. He admitted that he did not obtain any photograph of the spot before sending rukka from his mobile phone nor he prepared the video recording. He stated that after reaching at the spot within 5 to 10 minutes, he informed the crime team. He did not remember the exact time when he left the spot but it was evening time. He stated that on 21.07.2016 when they reached at T point Club road, Ring road, Punjabi Bagh, after 10 to 15 minutes, secret informer informed to the IO about the information. He also stated that the site plan was prepared by Inspector Shyoram in his presence. He did not remember if before opening the door/lock of the aforesaid premises, any photographs of the said door/lock were taken or not. He did remember the exact colour of the knife recovered at the instance of accused. He denied the suggestion that he was deposing falsely or that the said knife was planted upon accused in order to create false FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 44 of 75 evidence against him. He further denied that no such recovery of knife was effected in his presence at the instance of accused. He also stated that in his presence IO had not obtained any documentary proof to establish that shop no. 29/30, New Janta Market belonged to accused. He admitted that the said recovery proceedings of knife were neither videographed nor photographed. He stated that they had not called any crime team before seizing the said knife. He also admitted that no chance print were lifted from the said knife. He also admitted that similar knives as shown to be recovered could be easily purchased from open market. He also admitted that the said recovery proceedings of cloth were also not videographed or photographed.
74.PW-29 Ct. Naveen Kumar deposed that on 03.08.2016 he joined the investigation of the present case alongwith IO and complainant Kamal Prashad Pant and they went to Subhash Palace, Pitampura where they found CCTV camera installed at Tirupati Flowers, G-34, Millanion Towers, Subhash Place which found containing footage of recording wherein one person was seen having covered his face with handkerchief at about 5.24 PM and complainant identified the said person to be accused Vishnu Subedi. He further deposed that the owner of said shop namely Satish Chand Saini took out the hard disc and produced the same to IO which IO seized after sealing the same with the seal of SR vide memo Ex.PW10/L. He stated that seal after use was handed over to him. PW29 identified the said hard disc as Ex.PW16/P1.
75.During his cross-examination, this witness deposed that FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 45 of 75 they reached at the aforesaid place at about 5 PM and they were accompanied by public person i.e. Kamal Prashad Pant. He further deposed that he did not know if any CCTV was also installed in the nearby spot or not. He stated that there was one worker in the said shop apart from owner of the said shop but he did not know the name of the worker. He also deposed that IO did not record the statement of that worker. He also deposed that IO played the footage in the said shop which was seen by him, owner of the shop namely Satish Chand Saini, Kamal Prashad Pant and IO. He further deposed that he did not remember the duration of the footage, however, Kamal Prashad Pant had also signed the seizure memo as witness. He also deposed that he did not know if accused had already been arrested by that time or not. He also deposed that only hard disc was seized in his presence and no other computer parts were seized. He denied the suggestion that he did not join the investigation or that he signed the seizure memo while sitting at PS or that accused was not identified by any person in any CCTV footage.
76.PW30 Ct. Dharmender Kaushik deposed that on 29.08.2016, he received 7 parcels from the MHC (M) having seal of SR to deposit the same in the office of FSL, Delhi and thereafter, he took the same to FSL Rohini and deposited the parcels there. He stated that thereafter, he handed over the receipts and copy of the RC to the MHC(M) and that so long as the parcels remained in his custody, those were not tampered with in any manner and remained intact.
77.During cross-examination, PW30 denied the suggestion FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 46 of 75 that he did not take the said parcels to FSL, Rohini or that he did not deposit the same in the office of FSL.
78.PW31 W/Ct. Kamla brought the original record of DD No.43A dated 25.07.2016 Ex.PW31/A (OSR) and deposed that the said DD was got registered by the IO in the PS on his arrival alongwith the accused Vishnu Subedi and regarding depositing the case property in the Malkhana as well as regarding lodging the accused in the lock-up after his medical examination.
79.During cross-examination, PW31 denied the suggestion that the said DD is manipulated and same is ante-dated and ante-time.
80.PW-32 Ct. Chandrashekhar Yadav deposed that on 18.08.2016, he received one parcel from MHC(M) sealed with the seal of SR vide RC No. 57/21/16 and one application from IO and he took the same to DDU hospital mortuary and handed over the same to concerned doctor for subsequent opinion. He stated that thereafter, the concerned doctor handed over him the subsequent opinion and parcel sealed with the seal of PMDDUH and postmortem report alongwith the sample seal of the hospital. He further deposed that he returned to PS and deposited the same in Malkhana and handed over subsequent opinion report to IO.
81.During cross-examination, PW32 denied the suggestion that he did not join the said investigation at any point of time or that the said parcel was tampered with.
82.PW-33 ASI Pradeep Kumar produced original register no.
19 and exhibited the entries at serial no. 2636, 2637, 2638, 2648, 2654, 2669 in register no.19 as Ex.PW33/A (colly) FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 47 of 75 and Road certificate nos.58/21/16 and 61/21/16 as Ex.PW33/B and Ex.PW33/C.
83.During cross-examination, PW33 denied the suggestion that the said parcels were tampered with during the time they remained in his custody.
84.PW-34 Inspector Shyoram deposed that on 17.07.2016, he was posted as Insp. Investigation at PS Moti Nagar, Delhi. On that day, at about 8.15 am, on receipt of DD no. 16A, he along-with Ct Deepak reached at the spot i.e. at first floor of House No. WZ-161, Basaidara Pur, Delhi where SI Yograj, SI Gautam and caller Kamal Prasad Pant met them. He further deposed that he found that the room was locked and foul smell was coming from it at first floor. SHO also visited the spot alongwith the staff. The crime team was already called by SI Yograj at the spot and members of crime team reached there. He further deposed that the photographer took the photographs of the door and thereafter, SI Yograj got opened the door after breaking the lock with the help of chhaini and hammer and they found a dead body of a male which was lying on a mat in the room in decomposed condition. He further deposed that SI Yograj seized the broken lock made of Lancer Atoot vide seizure memo Ex.PW24/A and kept the same in a cloth parcel which was sealed with the seal of YSD and SI Yograj sent the dead body of deceased to DDU Hospital through Ct. Deepak for postmortem alongwith written request. He further deposed that SI Yograj recorded the statement of complainant Kamal Prashad Pant Ex.PW10/A and endorsed the same vide endorsement Ex.PW28/A and thereafter, handed over the same to PSI Gautam for getting FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 48 of 75 registered the FIR from PS Moti Nagar. He further deposed that after registration of FIR, PSI Gautam returned at the spot and handed over the copy of FIR and original rukka to him for investigation. He further deposed that during investigation, he inspected the spot and prepared site plan Ex.PW34/A and he also lifted the exhibits with the help of crime team i.e. blood sample with the help of cotton and earth control from the spot and kept the same in a separate plastic containers which were sealed with the seal of SR and seized the same vide seizure memo Ex.PW28/B and Ex.PW28/C respectively. He further deposed that he also lifted one half empty bottle of Whiskey having label of Royal Stag and one plastic bottle of soda of Xalta of 600 ml and seized the same vide memo Ex.PW28/D and sealed the same in a cloth parcel which was sealed with the seal of SR. He also seized another lock of Tomson company which was lying in the room near the coat vide memo Ex.PW28/E and kept the same in a cloth parcel which was sealed with the seal of SR.He further deposed that he also found one glass having half filled with Whiskey was lying on the floor near table on which one LCD was lying and he poured the said whiskey in empty bottle and tied the same with the cap and cap of the same was sealed with cloth parcel with the seal of SR and seized the same with seizure memo Ex.PW28/F. He also seized one mobile phone which was lying on a table near the LCD in the room having broken screen vide memo Ex.PW10/I and kept the same in a cloth parcel which was sealed with the seam of SR. He also seized the dari and taat on which the dead body was lying having blood stains FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 49 of 75 vide memo Ex.PW28/G and kept the same in a plastic katta of white colour and the mouth of the same was wrapped with the cloth and sealed with the seal of SR. He further deposed that the complainant had provided him two mobile phones number i.e. of deceased and of accused Vishnu Subedi. He further deposed that on next date i.e. on 18.08.2016, he went to DDU hospital for purpose of the getting conducted the postmortem on the dead body of the deceased. He stated that then he filled up/prepared inquest paper ie request of postmortem Ex.PW34/B, brief facts Ex.PW34/C, enclosed the copy of FIR Mark A and filled up form 25.35 Ex.PW34/D. He also recorded the statements of Kamal Prasad and Dhan Prasad who met him there regarding identification of the dead body of deceased vide Ex.PW10/J and PW13/A. He further deposed that after postmortem, dead body of deceased was handed over to Kamal Prasad Pant vide Ex.PW10/A. After postmortem, doctor concerned had handed over him two parcels and one sample seal which he seized vide memo Ex.PW27/A. He further deposed that on 21.07.2016, he alongwith SI Yograj and Ct. Shiteshwar left the PS for the search of accused and at about 04:30 pm, they reached at T-point, Club Road, Ring Road, Punjabi Bagh where he received secret information that accused was moving near Club Road and at the instance of the secret informer, he apprehended the accused at the corner of the Club Road. He further deposed that he interrogated accused Vishnu Subedi and arrested him vide arrest memo Ex.PW28/H and his personal search was also conducted vide memo Ex.PW28/I. He further deposed that from the personal FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 50 of 75 search, one mobile phone of make Hitech and driving license were recovered. He further deposed that accused made disclosure statement Ex.PW28/J. He also deposed that from the search of accused, one raxine purse of brown colour containing Rs.11430/-, some documents and three passport size photographs i.e. one of complainant and two of deceased Rishi Ram, one certificate of citizenship of deceased of Nepal and one key of Lancer were recovered from the back pocket of his wearing pant which were seized the same vide memo Ex.PW28/L and kept the same in a cloth parcel and sealed the same with the seal of SR. He further deposed that accused disclosed that he could get recovered the weapon of offence i.e. knife and clothes which he was wearing at the time of incident from his rented room. He stated that thereafter, accused led them to his rented room i.e. Shop No.29/30, New Janta Market, Paschim Puri Chowk, Club Road, Punjabi Bagh and from the first floor of room, he took out one knife which was lying under the bedding which was lying on the floor and produced the same before him and stated that it is the same knife by which he (accused) committed the murder of deceased. He further deposed that he prepared its sketch Ex.PW28/M and seized the same vide memo Ex.PW28/N and sealed the same in a cloth parcel with the seal of SR and thereafter, accused took out clothes i.e. blue colour jeans pant having label of Low Waist Skinny and one t- shirt of multi-colour i.e. grey, blue, black and white having label of Your Style LBT MAN from under the same bedding and produced the same to him and stated that these were the same clothes which he was wearing at the FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 51 of 75 time of incident. He further deposed that he seized the clothes vide memo Ex.PW28/O and kept the same in a cloth parcel which was sealed with the seal of SR.
85.He further deposed that accused led them at the place of occurrence i.e. at House No.WZ-161, Basaidara Pur and pointed out the same vide pointing out memo Ex.PW11/A and that the landlord of the house also met them there and he also joined the investigation and signed the pointing out memo as witness. He further deposed that on 22.07.2016, he along-with HC Amit, HC Omvir, Ct. Parvesh and accused left the PS and reached at West Bengal, Darjeeling on 23.07.2016 and made their arrival entry at the local PS Jaldhaka and thereafter, at the instance of accused, they reached at the house of girl friend of accused situated at Village Fari, Samsing, PS Jaldhaka, District Darjeeling, West Bengal. He further deposed that from the said house in the room at right side corner at ground floor under some articles accused took out two mobile phones make LAVA of black and sliver colour having cover without SIM and of Samsung of white colour having cover of white and brown colour without SIM respectively and produced the same to PW34 and stated that the mobile phone make Samsung belonged to deceased Rishiram. PW34 seized both the mobile phones vide separate memos Ex.PW25/A and Ex.PW25/B after sealing the same in separate cloth parcels with the seal of SR. He further deposed that after use, seal was handed over to HC Omvir and thereafter, they returned to Delhi on 25.07.2016 and he deposited the parcels in the malkhana. He further deposed that during the investigation, he collected the photographs from crime FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 52 of 75 team office and scene of crime report from incharge of crime team. He also collected CDRs of the mobile phones of deceased as well as of accused on his written request Ex.PW34/E and on examination found that the location of the accused as well as or the deceased was at working place of deceased at Netaji Subhash Place on 14.07.2016 and at about 8.00 pm, on the same day was at Basidarapur i.e. place of occurrence. He further deposed that on 27.07.2016, he got inspected the spot through draftsman and later on, he prepared scaled site plan and collected the same from him. He further deposed that on 03.08.2016, he along-with Ct. Naveen and complainant Kamal Prasad Pant reached at working place of deceased at Dips Fast Food, G-37, Aggarwal Millennium Tower, Netaji Subhash place where one lady Ms. Prem Lata, owner of the said shop met them and she told that on 14.07.2016, one boy having covered his face with cloth came to his shop and met with deceased and deceased told her that he belonged to his native place and he (deceased) had to go with him and thereafter, deceased had gone with him. He further deposed that thereafter, he checked the CCTV camera installed nearby vicinity and on checking the footage of camera installed at nearby shop i.e. Triputi Flowers, G-34, they saw one boy having covered his face with white hanker-chief was roaming near the shop of deceased and at that time, complainant Kamal Prasad Pant also with them and on seeing the footage of CCTV camera, he identified accused Vishnu Subedi roaming near the shop of his brother deceased. PW34 collected the hard disc from owner of the shop and seized the same vide seizure memo FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 53 of 75 Ex.PW10/L and kept in a cloth parcel sealed with the seal of SR. He also received certificate u/s 65B from the owner of the shop and placed the same on the record. He further deposed that during investigation, he wrote letter Ex.PW8/D to the autopsy surgeon and handed over the same to Ct. Chander Shekhar who after collecting the sealed parcel containing knife went to the concerned hospital, obtained subsequent opinion Ex.PW8/B and handed over the said opinion alongwith sketch Ex.PW8/C to him. He further deposed that during investigation, he sent the exhibits to FSL, Rohini through Constable and upon the receipt of FSL report, he filed the same in court alongwith his application Ex.PW34/F. He also identified the case property as Ex.PW10/P2, Ex.PW10/P1 (colly), Ex.PW10/P3, Ex.PW10/P4, Ex.PW10/P5 (colly), Ex.PW10/P6, Ex.PW10/P7 (colly), Ex.PW28/P1, Ex.PW28/P2, Ex.PW10/P10, Ex.PW25/A1 and Ex.PW16/P1.
86.He further deposed that during the course of investigation, he had collected the relevant CDR of mobile of deceased Rishi Ram as well as of accused alongwith relevant certificates under Section 65B of Indian Evidence Act alongwith the CAF of the relevant mobile phones. He stated that upon completion of investigation, he prepared chargesheet. He further deposed that after the receipt of FSL reports, he had filed the same before the court through an application.
87.During cross-examination, PW34 admitted that no eye witness was examined during the entire investigation of the present case. He admitted that police had not obtained FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 54 of 75 any photographs to establish that the door of the said premises was locked from outside. He also admitted that the crime team was not called at the time of opening of the said door and that no person was called for making the duplicate key of the said lock. He also stated that they broke open the said lock with the help of hammer and chhaini which were arranged through the owner of the said house namely Subhash Tyagi. He also admitted that till the arrest of accused, the exhibits seized from the spot as well as the exhibits received after the postmortem of the deceased were lying at malkhana and were not sent at FSL. He stated that no chance prints were lifted from the spot. He volunteered that Crime team finger print proficient made efforts for lifting the chance prints but chance prints could not be developed. He admitted that the body was recovered at one of the room at first floor and the remaining rooms were vacant at that time.
88.He denied the suggestion that few knives are visible in photographs Mark B-18 and B-24 and that no such recovery of knife was effected in his presence at the instance of accused. He admitted that the proceedings qua knife were neither videographed nor photographed. He also admitted that no chance print were lifted from the said knife. He also admitted that the exhibits were sent to FSL in the month of August 2016 i.e. after about more than one month of said recoveries. He stated that no independent public person was joined at the time of recovery of mobiles. He voluntarily stated that he had examined the girlfriend of accused and cited her as witness. He admitted that the said girlfriend is not a signatory to the seizure FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 55 of 75 memo of said mobile phones. He also admitted that the CAF (Customer Application Form) of the mobile allegedly belonging to deceased was not in the name of deceased. He voluntarily stated that during investigation, he had recorded the statement of said customer in whose name the said SIM was registered.
89.On 06.04.2022 prosecution evidence was closed. On 28.07.2022, statement of accused Vishnu Subedi was recorded u/s 313 Cr.P.C. In his statement u/s 313 Cr.P.C, accused has submitted that he and PW10 Kamal Prashad Pant belonged to same village from Nepal and said Kamal Prashad Pant had borrowed certain money from him and kept on demanding more money from him and when he refused to pay him the more money, he had falsely implicated him in this case. He further submitted that he is innocent and has been falsely implicated and he has no connection with commission of offence of the present case. However, accused opted not to lead any evidence in his defence.
FINDINGS & OBSERVATIONS:
90. I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. My findings are as under:
91.Admittedly, the case of the prosecution is based on circumstantial evidence.
92.It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 56 of 75 of any other person. (Reliance placed on Hukam Singh v.
State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
93.In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
94.Reference is also made to a decision passed by Hon'ble Supreme Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 57 of 75 the accused and totally inconsistent with his innocence....".
95.In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down by Apex Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
96.In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 58 of 75 effect of all the facts so established must be consistent only with the hypothesis of guilt.
97.Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
98.There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by Hon'ble Supreme Court in various judgments as far back as in 1952.
99.In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 59 of 75 to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far 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."
100.A reference may be made to the judgment passed by Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They 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;
FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 60 of 75 (3) the circumstances should be of a conclusive nature 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.
101.Now coming to this case, the only evidences which appear to have been pressed by the prosecution are as under:-
1. Statement of public witness Kamal Prasad i.e. complainant (PW10)
2. Statement of Smt. Prem Lata (PW14).
3. Statement of Sh. Mahesh Chand (PW15).
4. Alleged recovery of one raxine purse of brown colour containing currency, some documents and three passport size photographs i.e. one of complainant and two of deceased Rishi Ram, one certificate of citizenship of deceased of Nepal from accused.
5. Alleged recovery of one key of lock which was at the gate of door of room in occupation of deceased.
6. Alleged recovery of weapon of offence i.e. knife and the wearing clothes of accused.
7. Alleged recovery of mobile phone make Samsung belonging to deceased Rishi Ram from village Fari, Samsing, Distt. Darjeeling, West Bengal.
8. FSL reports.
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9. Subsequent opinion regarding the nature of injury sustained on the body of deceased Rishiram
10. CCTV footage.
102.Admittedly during the investigation, no eye witness could be found who has seen the occurrence and the case of the prosecution is based on circumstantial evidence.
103. Now, let us see if the prosecution has been able to establish its case beyond reasonable doubts and as to whether the prosecution has been able to prove the circumstances leading to the guilt of accused or otherwise.
104.None of the witnesses examined during trial has deposed about the motive on the part of accused to commit the offence and thus the motive is lacking in this case. Statement of public witness Kamal Prasad Pant i.e. complainant.
105. In this regard, it is observed that the only incriminating evidence deposed against accused by PW10 Sh. Kamal Prasad Pant is that accused Vishnu Subedi is the resident of his village and accused Vishnu Subedi is his distant relative and had friendly terms with his brother. He further deposed that he used to find accused in the room of his brother i.e. deceased Rishi Ram as and when he used to visit the room of his brother. He further deposed that accused used to consume liquor with his brother. He also deposed that during investigation, the CCTV footage of camera installed at the shop of Tirupati Flowers at Netaji Subhash Palace was shown to him wherein he found that one person having covered his face with handkerchief was moving there and his height and other features were similar to accused Vishnu Subedi. This witness has further FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 62 of 75 deposed that mobile phone having number 9810803056 which was being used by his brother Rishi Ram was also missing from the room and the articles including purse, ID proof etc. of his brother kept in the briefcase and boxes in the said room were also missing.
106.During cross-examination on behalf of defence, this witness has deposed that his brother used to consume liquor and on some occasions, his brother used to call his friends to his rented room and on several times in his presence drink parties were organized by his deceased brother and his friends. He further deposed that during the said drink parties, his brother used to call his one or two friends i.e. accused Vishnu Subedi and other person whose name he did not remember. He further deposed that he knew accused Vishnu Subedi since birth as well as his family members and accused Vishnu has been living in Delhi/India for the last about 10 to 15 years. He further deposed that accused is his relative i.e. son of maternal uncle of his father. He further deposed that at the time of incident, accused was married and he got married about 5 to 6 years prior to the incident. He also deposed that his brother did not make any complaint to him against accused Vishnu Subedi and his brother did not inform him during his life time that accused was having any girlfriend or not. He further deposed that he did not know any girlfriend of accused Vishnu Subedi. He specifically deposed that upon seeing the CCTV footage he found that accused was not appearing/shown in the CCTV footage of camera installed at Deep Fast Food where the deceased was working. He further deposed that he had not seen the accused in the said FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 63 of 75 footage entering into Deep Fast food through entry gate. He also deposed that his deceased brother was not seen in the entire footage. This witness has further deposed that he had doubt upon the accused regarding the murder of his brother as accused used to drink with his brother in his rented room and because accused was absent at the time of occasion of last rites of his brother.
107.The overall impact of the testimony of PW10 Sh. Kamal Prashad Pant is that he has not deposed about any animosity in between accused Vishnu Subedi and his brother Rishi Ram. This witness has specifically deposed that he had doubt upon the accused being involved in the murder of his brother as accused used to drink with his brother in his rented room and because accused was absent at the time of occasion of last rites of his brother. This witness has also admitted in his cross-examination that his brother used to consume liquor with other friends also. This witness has categorically deposed that his brother did not make any complaint to him against accused Vishnu Subedi during his life time. Now, the only circumstance that remains against accused Vishnu Subedi as per the testimony of PW10 is that accused was absent at the time of occasion of last rites of deceased. This circumstance itself is not an incriminating evidence against accused Vishnu Subedi so as to convict him for the offence of murder.
108.Further, the complainant/PW10 Kamal Prasad deposed that he identified the accused in the CCTV footage of camera installed outside the shop of Tirupati Flower wherein a person in muffled face is seen whose appearance FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 64 of 75 seems to be similar to that of accused. However, as per said CCTV footage a person in muffled face is seen outside the shop where the deceased was working prior to his death, however, the said person is not identifiable to be accused as the said person is in muffled face. Further, this Court cannot lose sight of the fact that the deceased was the brother of PW10/complainant and PW10 had already stated in his testimony that he had doubt over accused being the assailant and hence, the testimony of PW10 regarding the identification of the person in muffled face in CCTV footage as accused herein cannot be given much credence. It is pertinent to note that the accused cannot be convicted for the offence of murder only on the basis of doubt as alleged by PW10 in his testimony.
Statement of Smt. Prem Lata (PW14):-
109.The prosecution has relied upon the testimony of PW14 Smt. Prem Lata who has deposed that she had been running a small restaurant at Pitam Pura where her son Vishal Tandan also helped her in running the said restaurant and deceased Rishiram Pant was her servant at the said restaurant. She further deposed that she did not remember the date, however, in the middle of month of July, 2016 at about 05:00/05:30 pm, one boy came at the counter of her restaurant who was the friend of Rishiram Pant and then Rishiram Pant told her that he had to go with the said boy for some urgent work and thereafter, Rishiram Pant left the restaurant with him. As per the testimony of PW14 Prem Lata that boy who had come had covered his face with the handkerchief and was also having the spectacles on his eyes. PW14 Prem Lata has not identified FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 65 of 75 the accused Vishnu Subedi in the court as the person who had come on that day with whom deceased Rishram Pant left the restaurant.
110.The overall impact of testimony of this witness is that she has not been able to depose the exact date on which she had seen her servant Rishi Ram accompanying the said boy. During investigation, no TIP of accused was got conducted from this witness to establish that it was accused with whom Rishi Ram had accompanied on the said day. Even during her testimony, this witness has not be able to identify accused being the person with whom her servant Rishi Ram had accompanied on the said date and thus no incriminating evidence has come out against accused Vishnu Subedi from the testimony of PW14 Smt. Prem Lata.
Statement of Sh. Mahesh Singh (PW15).
111.The IO has cited PW Mahesh Singh as the person who allegedly saw the accused and the deceased in the tenanted room where the deceased was found dead. However, PW15 Sh. Mahesh Singh during his deposition did not support the case of the prosecution and he was cross examined by Ld Addl. PP for the State during which he denied that accused Vishnu Subedi used to visit the deceased at his tenanted room and he had also seen them together while taking liquor in the tenanted room of deceased as he used to visit the first floor to use toilet. He also denied the suggestion that on 14.07.2016 at about 08:00/08:10 pm, he had seen the deceased and accused together while entering into the house or that he had seen accused with deceased in his room while taking liquor. He FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 66 of 75 further denied that accused used to visit the deceased at his tenanted room.
112.The overall impact of the testimony of PW15 Sh. Mahesh Singh (who as per the case of prosecution is the last seen witness and had seen accused in the company of deceased) has not supported the case of prosecution in any manner and despite his cross-examination by Ld Addl. PP for the State, this witness has denied that he had seen accused and deceased together while taking liquor in the tenanted room of deceased or that on 14.07.2016 at about 8/8.10 pm, he had seen accused and deceased together while entering into the house. In view of the said testimony of PW15, the prosecution has not been able to establish that accused Vishnu Subedi was lastly in the company of deceased. Since PW15 Mahesh Singh has not supported the case of prosecution in any manner and denied that on 14.07.2016 i.e. on the date of incident at about 8/8.10 PM, he had seen deceased and accused together while entering into the house, there is a break in the chain of circumstantial evidence and the accused is entitled to benefit of doubt. Alleged recovery of one raxine purse of brown colour containing currency, some documents and three passport size photographs i.e. one of complainant and two of deceased Rishi Ram, one certificate of citizenship of deceased of Nepal from accused. & Alleged recovery of one key of lock which was at the gate of door of room in occupation of deceased.
113.Here it is observed that PW34 Inspector Shyoram who is FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 67 of 75 IO of the present case has deposed that on 21.07.2016 he alongwith SI Yograj and Ct. Siteshwar were in the investigation of the present case and on the basis of one secret information, they managed to apprehend accused Vishnu Subedi at the corner of club road and from the search of accused, one raxine purse of brown colour containing Rs.11,430/-, some documents and three passport size photographs i.e. one of complainant and two of deceased Rishi Ram, one certificate of citizenship of deceased and one key of Lancer were recovered from the back pocket of his wearing pant and IO had seized the same vide seizure memo Ex.PW28/L after sealing the same with the seal of 'SR'.
114.In this regard, it is pertinent to mention that as per the case of prosecution, the offence took place on 14.07.2016 and the accused was allegedly apprehended on 21.07.2016. It is highly improbable that even after about a week of commission of offence, the offender would keep the purse and other incriminating documents belonging to deceased and the key of the lock, which was at the gate of door of room in occupation of deceased, in his possession. Admittedly, no public person was joined at the time of recovery of said articles despite availability and admittedly the said recovery proceedings were neither videographed nor photographed. The recovery witnesses who are police officials have nowhere deposed that any efforts were made to join independent public witnesses prior to the recovery of said articles. Thus, the recovery of said articles including the recovery of Lancer key from the possession of accused is doubtful.
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115.It is also pertinent to mention that the alleged Lancer key whereupon number I029I was engraved was allegedly recovered from the accused and seized vide seizure memo Ex.PW28/L and it was sent for FSL examination alongwith the lock and as per the FSL examination report, Ex.PW22/A, the number on the aforesaid key was found to be 4029I which also creates substantial doubt about the alleged recovery and the involvement of accused. Alleged recovery of weapon of offence i.e. knife and the wearing clothes of accused.
116.The prosecution has examined PW34 Inspector Shyoram who is IO of the present case and he has deposed that after the arrest, pursuant to disclosure statement, accused led them at his rented room i.e. shop no. 29/30, new Janta Market, Paschim Puri Chowk and from his room, accused took out one knife which was lying under the bedding and also got recovered clothes i.e. blue colour jeans pant and one t-shirt of multi colour and stated that he used the said knife in the commission of offence and he was wearing the said clothes at the time of commission of offence.
117.During cross-examination by Ld defence counsel, PW34 Inspector Shyoram categorically deposed that the said recovery proceedings of knife and clothes were neither videographed nor photographed. PW34 specifically admitted that he had not requested the neighbouring shopkeepers or residents for joining investigation prior to the said recovery. He also specifically admitted that he had not called any crime team before seizing the said knife and no chance prints were lifted from the said knife. He also specifically admitted that similar knives as shown to have FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 69 of 75 been recovered could easily be purchased from open market. He also admitted that the exhibits were sent to FSL in the month of August 2016 i.e. after about one month of the said recoveries.
118.In view of the aforesaid admissions of PW34 Inspector Shyoram the recovery becomes doubtful as the recovery witnesses have specifically deposed that no efforts were made to join the neighbouring shopkeepers/residents or public persons for joining investigation prior to the said recovery and the said recovery proceedings were neither videographed nor photographed. No doubt that public witnesses are reluctant to join investigation but at least sincere efforts should have been made by the investigation officer for joining independent public witnesses which has not been done in the present case which makes the recovery of said knife and clothes to be doubtful at the instance of accused.
Alleged recovery of mobile phone make Samsung belonging to deceased Rishi Ram from village Fari, Samsing, Distt. Darjeeling, West Bengal.
119. Here it is observed that PW34 Inspector Shyoram has deposed that on 22.07.2016, he along-with HC Amit, HC Omvir, Ct. Parvesh and accused left the PS and reached at West Bengal, Darjeeling on 23.07.2016 and made their arrival entry at the local PS Jaldhaka and thereafter, at the instance of accused, they reached at the house of girl friend of accused situated at Village Fari, Samsing, PS Jaldhaka, District Darjeeling, West Bengal. He further deposed that from the said house in the room at right side corner at ground floor under some articles accused took out two FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 70 of 75 mobile phones one make LAVA of black and sliver colour having cover without SIM and another of Samsung white colour having cover of white and brown colour without SIM respectively and produced the same to PW34 and stated that the mobile phone make Samsung belonged to deceased Rishiram. PW34 seized both the mobile phones vide separate memos Ex.PW25/A and Ex.PW25/B after sealing in separate cloth parcels with the seal of SR.
120. It is pertinent to mention that during cross-examination on behalf of accused, PW34 has admitted that no independent public person was joined at the time of recovery of said mobiles. Though, PW34 has voluntarily stated that during investigation he recorded the statement of said girlfriend of accused and cited her as a witness, however, he admitted that the said girlfriend of accused is not a signatory to the seizure memo of said mobiles. Admittedly, no local police official from village Fari, District Darjeeling, West Bengal was joined in the investigation. Moreover, there are material contradictions in the testimonies of recovery witnesses. PW25 HC Omvir has deposed that when they went to the said house of girlfriend of accused, the said girlfriend of accused and her family members were there in the house at that time. On the other hand, PW26 HC Amrit has stated that two ladies met them there but he did not know as to who were they and what was their relation with girlfriend of accused. IO in his testimony nowhere deposed that any family members of the said girlfriend or the girlfriend herself were present at the said house at the time of alleged recovery. The aforesaid contradictions made the recovery FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 71 of 75 of mobile phones at the instance of accused doubtful and the accused is entitled to the benefit thereof. FSL Reports:-
121.The prosecution has relied upon the FSL report regarding the knife, dari, mat, earth control and clothes. PW23 Kaushal Kumar has exhibited the FSL report as Ex.PW23/A and Ex.PW23/B. However, perusal of the reports Ex.PW23/A and Ex.PW23/B reveal that human blood was detected on exhibit 1 i.e. knife. However, as per serological report Ex.PW23/B the spices of origin was opined to be human, however, no blood reaction was found on the said exhibit i.e. knife. Perusal of the FSL reports further revealed that no request has been made to FSL expert for generating the DNA profile from the said exhibits so as to connect the aforesaid articles with the blood of the deceased. Perusal of FSL report further reveals that the clothes allegedly recovered at the instance of accused Vishnu Subedi was never sent to FSL for examination purposes. Thus, the reports Ex.PW23/A and Ex.PW23/B are not helpful to the case of the prosecution in any manner.
Subsequent opinion regarding the nature of injury sustained on the body of deceased Rishiram:
122.The prosecution has relied upon the subsequent opinion regarding the nature of injury sustained on the body of deceased given by Dr. VK Ranga which is EX.PW8/B. Dr. V.K Ranga had examined the said weapon of offence i.e. knife and prepared subsequent opinion Ex.PW8/B, however, his subsequent opinion is not conclusive as he has mentioned that the injury no. 1 mentioned in FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 72 of 75 postmortem report could be possible by the said knife. Since no DNA profiling was conducted on the said knife and the opinion of autopsy surgeon is not conclusive, it cannot be concluded that the murder was committed with the said weapon and thus, the benefit of doubt must be given to the accused.
CCTV footage:-
123.One of the circumstance relied upon by the prosecution is that during investigation, when the CCTV footages were checked, in one of the CCTV footage of camera installed at the shop of Tirupati Flowers at Netaji Subhash Place, it was found that one person having covered his face with handkerchief was moving there and his height and other features were similar to that of accused Vishnu Subedi. During investigation, IO had seized the DVR containing the said CCTV footage vide seizure memo Ex.PW10/L. During investigation, no efforts have been made to obtain the photograph and videograph of accused Vishnu Subedi and to send the same to FSL for matching/expert opinion from the FSL as to whether the person seen in the said CCTV footage is the accused. It is pertinent to mention that during the trial, though PW10 has identified accused Vishnu Subedi being the person visible in the said CCTV footage having handkerchief on his face but the perusal of said CCTV footage nowhere reveals that accused Vishnu Subedi was in company of deceased Rishi Ram. Further, the said CCTV footage shows timing of 17:34:09 hours to 17:40:22 hours wherein the accused is allegedly being seen and as per the case of the prosecution the murder of Rishi Ram took place after many hours from the aforesaid FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 73 of 75 timing. Further, the person who is seen in the aforesaid CCTV footage is in muffled face and is wearing the spectacles and it cannot be presumed that the said person is accused Vishnu Subedi. Even the deceased Rishi Ram is not seen in the said footage alongwith that person in muffled face and hence, the aforesaid CCTV footage cannot be said to be an incriminating evidence. It is further pertinent to mention that PW10 Kamal Prashad Pant has deposed in his testimony that he had doubt over the accused Vishnu Subedi being the assailant as the accused used to drink alcohol with his brother Rishiram in his rented room and because accused was absent at the time of occasion of last rites of his brother. PW10 Kamal Prashad Pant seems to have identified the person in muffled face in the CCTV footage as accused Vishnu Subedi on the basis of his doubt and the accused Vishnu Subedi cannot be convicted merely on the basis of doubt.
124.This is a case which is based on circumstantial evidences and the prosecution was required to cogently and firmly establish all the relevant factors so as to unerringly pointing towards the guilt of the accused and the chain of circumstantial evidences alleged by the prosecution should be so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and that such evidence was consistence with the guilt of accused and also inconsistent with his innocence.
125.However, as discussed above, the prosecution has not been able to establish all the relevant factors of circumstantial evidence consistent only with the FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 74 of 75 hypothesis of the guilt of the accused nor the chain of circumstantial evidence as relied upon by the prosecution is so complete so as to establish that it was only the accused and nobody else who committed the alleged offence. In view of the aforesaid discussion, I am of the considered view that the prosecution has not been able to prove that the accused Vishnu Subedi committed the murder of Rishi Ram or committed the theft of wallet containing Rs.20,000/- and certain documents belonging to deceased. Accordingly, accused Vishnu Subedi is hereby acquitted for the offence punishable u/s 302, 380 IPC.
126.His previous bail bonds furnished during trial are hereby cancelled. His surety stands discharged. However, the bail bonds furnished by accused Vishnu Subedi under Section 437A Cr.P.C. shall remain effective for a period of six months from the date of this judgment.
File be consigned to Record Room.
(Passed & announced in open court today) (MANISH KHURANA) Addl. Sessions Judge-04 West District, Tis Hazari Courts, Delhi/09.01.2023 FIR No. 378/2016 State Vs. Vishnu Subedi PS Moti Nagar Page no. 75 of 75