Delhi District Court
State vs 1. Babloo S/O. Nand Ram on 3 June, 2017
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.38/2011
Unique Case ID No333/2016
FIR No.21/2011
U/S: 302/365/364/201/34 IPC
P.S: Gandhi Nagar
State Versus 1. Babloo S/o. Nand Ram
R/o. Village Ladana,
PS. Khanpur, Tehsil Sayana,
District Bulandshahar, U.P.
Date of Institution : 20.04.2011
Date of Arguments : 03.05.2017
Date of Judgment : 03.06.2017
J U D G M E N T
Case of Prosecution
1.Criminal law was set into motion on 22.01.2011, when complainant Shailendra Dwivedi came to PS Gandhi Nagar and made complaint regarding missing of his wife Meenu and suspected that she had been kidnapped by accused Rakesh (facing trial before Juvenile Justice Board), who was working in a factory situated in FIR No.21/2011, PS. Gandhi Nagar Page 1 of 21 St. Vs. Babloo front of the house of his inlaws. On the basis of statement of complainant, rukka was prepared and present case FIR was registered. Further investigation was carried out. Accused Rakesh was arrested, who made disclosure statement that he had killed Meenu by strangulating her at his cousin Babloo's rented accommodation at Loni and thereafter, with the help of his Cousin Babloo and one Majlis, dumped the dead body in a pool. On the basis of his disclosure statement, accused Babloo was arrested. Dead body of deceased was recovered. Other accused Majlis could not be arrested despite best efforts made and was declared Proclaimed Offender. Chargesheet was prepared and filed before the court.
2. On appearance, in compliance of section 207 IPC, copies were supplied to accused persons, and as offences punishable u/s. 364/302 IPC are triable by the Court of Sessions, present case was committed to Sessions Court.
Charge framed against the accused persons.
3. Charge u/s. 364/302 IPC was framed against accused Rakesh, to which he pleaded not guilty and claimed trial. A separate charge u/s. 201/34 IPC was also framed against accused Rakesh and Babloo, to which they both pleaded not guilty and claimed trial.
4. During trial an application u/s. 20 of Juvenile Justice Act was moved on behalf of main accused Rakesh and my Ld. FIR No.21/2011, PS. Gandhi Nagar Page 2 of 21 St. Vs. Babloo Predecessor vide order dt. 28.01.2015, held that accused Rakesh was a juvenile at the time of alleged commission of offence and therefore, he was directed to be produced before Juvenile Justice Board.
Witnesses examined
5. To substantiate the charge, prosecution has examined 23 witnesses in all. However, since main accused Rakesh has been held juvenile and is facing trial before Ld. Juvenile Justice Board and the allegations against accused Babloo are u/s. 201 IPC only, the testimonies of all the witnesses, are to be looked upon and considered only to that extent.
6. PW1 is Sh. R.K.Singh, Nodal Officer, Bhatri Airtel Ltd. He proved the call details record of PW4 Rakhi (sister of deceased), father of deceased Sh. Bhagwan Dass and of one Mr. Ali Hasan.
7. PW2 Sh. Shishir Malhotra, Nodal Officer proved the call detail records of mobile no. 918802102245, which was in the name of one Sajjad.
8. PW3 Israr Babu Nodal Officer proved the call detail record of mobile number 9654206648, which was in the name of one Taukir Shah for the period from 20.01.11 to 21.01.11.
FIR No.21/2011, PS. Gandhi Nagar Page 3 of 21 St. Vs. Babloo
9. PW4 Rakhi is the younger sister of deceased. She has deposed that on 21.01.11 she had called her sister Meenu, who alongwith his husband (PW 5) was residing in the same area at a distance of about 2 streets from her house, and had asked her to come to her house on which Meenu said that she would be coming shortly. She deposed that she waited for Meenu but she did not come. In the evening at about 5.40 pm, she received call of accused Rakesh, who asked for Meenu. She deposed that on her asking, caller told her that he was Rakesh working in the factory in front of her house. She deposed that accused Rakesh called her 23 times and enquired if Meenu had returned or not. She informed her father (PW7) and Jija (PW5), who then made search for Meenu. She deposed that next day also she received a call from accused Rakesh, whereafter, she informed about this call to her Jija (brother inlaw) and father. Thereafter, her brother inlaw went to the PS and got the FIR registered.
10. PW5 Sh. Shailender Kumar is the husband of deceased Meenu. He deposed about the happening on 21.01.2011 on the lines of PW4 Rakhi. He deposed that on 22.01.11, he alongwith police went to factory, where accused Rakesh was working and got him arrested. He deposed that accused Rakesh made disclosure statement confessing that he had killed Meenu on 21.01.2011 by strangulation at Ram Park Extension, Loni Ghaziabad and that he alongwith his FIR No.21/2011, PS. Gandhi Nagar Page 4 of 21 St. Vs. Babloo cousin Bablu and his friend Majlis had dumped the dead body after putting it in a plastic bag in a pond.
11. PW6 is Raju, a public person, who deposed that both accused Rakesh and Babloo had got recovered the dead body of a female lying in plastic katta, from the pond. He also deposed that both the accused led police party to GBlock, Ram Park Extension, Loni Ghaziabad, where accused Babloo was residing on rent and from there, they got recovered a rickshaw, in which the dead body was carried to the pond. In his crossexamination he admitted that he was asked by police to become a witness in this case.
12. PW7 Sh. Bhagwan Dass is the father of deceased. He also deposed that on 22.01.11 on being told by his daughter Rakhi about the phone call received from accused Rakesh, his son inlaw Shailender had gone to PS and made a complaint. He also deposed about arrest of accused Rakesh and on his pointing out arrest of accused Babloo. He also deposed about the recovery of dead body at the instance of both the accused from a pond.
13. PW8 Sh. Siddi Ram is the landlord of deceased and has only deposed that on being told by the husband of deceased that Meenu had not returned home, he had tried to contact Meenu on her mobile phone. He deposed that receiver of the phone, picked up the phone and then disconnected.
FIR No.21/2011, PS. Gandhi Nagar Page 5 of 21 St. Vs. Babloo
14. PW9 is Sajjad, who deposed that he does not know any Rakesh. He deposed that in February, 2010, his purse was lost in Karol Bagh and that accused Rakesh might have used his I.D to obtain the mobile no. 8802102245. He has not deposed anything about the facts of this case.
15. PW10 is SI Prem Singh, who deposed about arrest of accused Rakesh. He deposed that accused Rakesh made disclosure statement and also offered to get the body of deceased Meenu recovered from a pond at Rama Park Extn. Loni, Ghazibad. He deposed that accused Babloo was apprehended at the pointing out of accused Rakesh, who was passing from Rama Park Road, whereafter he was arrested, personally searched and his disclosure statement was recorded. He deposed that both the accused got recovered the dead body of Meenu from a pond. He further deposed that both the accused then pointed out the place of commission of murder i.e house at G Block, Rama Park Extension and a goods rickshaw lying in front of the house was also got recovered.
16. PW11 Ct. Ramender had after collecting the postmortem report from SI Daya Ram and a sealed pullanda from MHC(M), Pusta Chowki Loni had deposited the same in Malkhana.
17. PW12 is Sh. Md. Jainul, who deposed that he is doing FIR No.21/2011, PS. Gandhi Nagar Page 6 of 21 St. Vs. Babloo the work of hand pump and that accused Babloo and one Majlis also used to do the work of handpump. He deposed that he did not hand over any mobile phone to the police and that police had seized a mobile phone having two SIMs from Sohrab, brother inlaw of his son Mohd. Rizwan. He deposed that one of the Sim was in the name of Mohd. Ali Hassan, father inlaw of his son Rizwan while the second Sim was in the name of Rizwan. He deposed that Rizwan had gone to village about 1 ½ months prior to occurrence and the mobile phone was being used by Sohrab, Babloo and other labourers. He deposed that Sohrab had informed him that two telephone calls from the brother of Babloo were received for accused Babloo on the said phone between 18.01.11 to 22.01.11. He deposed that brother of Babloo had called Babloo for the key of his room situated at Ram Park. He further deposed that his son Rizwan has a goods rickshaw, which was with Sohrab as his son Rizwan had gone to the village about 1 ½ months prior to the occurrence.
In his crossexamination by Ld. Addl. PP, he denied that the phone remained with Babloo, Majlis & other workers. He volunteered that phone remained with Sohrab. Denying that phone Ex.P3 was given by him to police, he volunteered that it was given by Sohrab.
In his crossexamination by Ld. Counsel for accused, he admitted that his statement was based on the information given to him by others. He pleaded ignorance regarding the fact that Sajjad, friend of his son Rizwan had made telephone call and not Rakesh.
FIR No.21/2011, PS. Gandhi Nagar Page 7 of 21 St. Vs. Babloo
18. PW13 is Sh. Mohd. Farukh, owner of the factory, in which accused Rakesh was working. He deposed that accused Rakesh had illicit relations with deceased Meenu and did not depose anything about accused Babloo.
19. PW14 is Sh. Tokeer Shah, who was also working in the same factory, where accused Rakesh used to work. He only deposed that before going to his village on Eid, he had given his Sim to accused Rakesh.
20. PW15 SI Mukesh Jain had prepared site plans Ex.PW15/A and Ex.PW15/B.
21. PW16 is Dinesh Kumar, landlord of house at Rama Park Extension, Loni Ghazibad. He deposed that he had let out his house to Rizwan, who was doing the boring work.
In his crossexamination by Ld. Addl. PP, he deposed that house was rented to Md. Jainul and his son Rizwan and the labour of Jainul and Rizwan also used to stay at the house.
22. PW17 Dr. J.K.Tyagi, had conducted the postmortem of deceased and proved his report as Ex.PW17/A.
23. PW18 HC Pramod Joshi had executed the NBWs FIR No.21/2011, PS. Gandhi Nagar Page 8 of 21 St. Vs. Babloo against accused Md. Majlis.
24. PW19 HC Manoj Kumar from PS Kotwali had produced summoned record i.e register No.5 (Mal register) and proved the entry Ex.PW19/A. He deposed that on 30.01.11, as per directions of duty officer, had handed over a pullanda to Ct. Ramender Kumar of PS. Gandhi Nagar vide entry Ex.PW19/B.
25. PW20 Ct. Tej Singh deposed that on 22.01.2011, he was posted at Police Station Loni Chowki Pushta. He deposed that on that day he alongwith Ct. Vinod and SI Deviram had reached at the pond at Rampark Extension at about 5.30 pm. He deposed that Inspector Dinesh Kumar alongwith accused Rakesh were already present at the spot with other Delhi police staff. He deposed that on the bank of the pond dead body of Meenu was lying in a plastic cover, which was taken out from plastic cover. He further deposed that body was identified to be that of Meenu by accused Rakesh himself.
In his crossexamination by Ld. Addl. PP, he deposed that he does not know if accused Babloo was also present at the bank of the pond and volunteered that he saw only accused Rakesh present there. He further denied that body was taken out from the pond on the pointing out of both the accused.
FIR No.21/2011, PS. Gandhi Nagar Page 9 of 21 St. Vs. Babloo
26. PW21 Inspector Devi Ram Gautam deposed that on 22.01.11 he was posted as Chowki Incharge at Pushta Chowki. He deposed about recovery of dead body of Meenu from a pond at Ram Park Extension at the instance of both the accused and further proceedings conducted thereafter.
27. PW22 Ct. Raj Kumar is the photographer, who on 22.01.2011 was posted at Crime Team. He had videographed and as well photographed the spot, from where the dead body of Meenu was recovered. He proved the photographs as Ex.PW22/A1 to A8 and the CD as Ex.PW22/A9.
In his crossexamination by Ld. Defence Counsel, he stated that three accused persons were in the custody of police at that time. He stated that all the three accused persons had taken out the dead body from the pond. He deposed that he had taken the photographs after sun set at about 8.30 pm. He deposed that firstly they had gone to the spot, where murder was committed and thereafter, went near the pond for recovery of dead body. He stated that he left Delhi from PS. Gandhi Nagar at about 6.30 pm.
28. PW23 is Inspector Dinesh Kumar, who on the basis of statement of complainant Shailendra Dwivedi had got the FIR registered. He also deposed about arrest, personal search and disclosure statement of accused Rakesh. He also deposed that he alongwith police team and father of deceased reached at Extension FIR No.21/2011, PS. Gandhi Nagar Page 10 of 21 St. Vs. Babloo Loni Ghaziabad, U.P, where one person was going and he was identified by accused Rakesh as his cousin Babloo, who was also apprehended and interrogated at about 4.45 pm. He also made disclosure statement Ex.PW7/PX1. Thereafter, both accused led police party to a pond, from where dead body was recovered and the photographer had done the photography and videography. He deposed that thereafter, accused persons led the police party to G Block, Rama Park Extension at the residence of accused Babloo and on their pointing out a goods rickshaw was seized vide memo Ex.PW6/B. Then accused Rakesh led the police party to other room and had shown the place, where he strangulated Meenu. He deposed that on 24.01.11 Mohd. Jainul produced one mobile phone, on which conversations between accused Rakesh and accused Babloo had taken place. He had also collected the CDRs of mobile phone of accused as well as of deceased, her sister Meenu and Mohd. Jainul, Contractor of accused Babloo. He also deposed about further proceedings done by him.
In his crossexamination by Ld. Defence Counsel for accused Babloo, he admitted that accused Rakesh had already disclosed during interrogation regarding the location and the place, where the dead body of deceased was disposed off. He further admitted that accused Rakesh had already disclosed during his interrogation regarding the location and place, where the goods rickshaw allegedly used in commission of crime for transporting the dead body was hidden. He deposed that accused Rakesh was FIR No.21/2011, PS. Gandhi Nagar Page 11 of 21 St. Vs. Babloo arrested at about 3.45 pm. He deposed that when they reached the room of Babloo, it was found unlocked. He deposed that it took about 15 minutes to interrogate accused Babloo and recording his disclosure statement. He deposed that dead body was recovered at about 5.305.45 pm on 22.01.2011.
Statement and Defence of accused.
29. Statement of accused Babloo u/s. 313 Cr.P.C was recorded, wherein he denied all the incriminating evidence put to him and pleaded innocence. He stated that he does not know anything about the incident and that on 21.01.2011, he had gone to his room at 9.30 pm and thereafter, on next day, he went to Traunica City and that Jainul had called him on 22.01.2011 while saying that some relatives have come at home.
Arguments and conclusion
30. Arguments have been addressed by Sh. Sanjay Kumar, Ld. Addl. PP for the State as also by Sh. Rupesh Tyagi, Ld. Counsel for accused Babloo.
31. Ld. Counsel for accused Babloo argued that there is no evidence against accused Babloo except the disclosure statement of accused Rakesh (who is facing trial before Juvenile Justice Board) and that prosecution has failed to connect accused Babloo with the FIR No.21/2011, PS. Gandhi Nagar Page 12 of 21 St. Vs. Babloo crime in any way and thus, could not succeed to prove the charge against him.
32. In rebuttal, Ld. Addl. PP argued that there is recovery of dead body at the instance of both the accused and call details records also supports the disclosure statement made by accused. He further argued that witnesses have proved the recovery of dead body and goods rickshaw used in the commission of offence at the instance of both the accused, thus, prosecution has successfully proved its case against accused Babloo.
33. In the instant case main accused Rakesh has been held juvenile and is facing trial before Juvenile Justice board and the only allegation against accused Babloo is that he helped coaccused Rakesh (who is facing trial before Juvenile Justice board) in transporting the dead body to a pool for the purpose of disposing off the same. Hence, the entire evidence, which has been adduced on record, is to be carefully scrutinized to see whether accused Babloo helped coaccused Rakesh in transporting the dead body to the pond and got the same disposed off. The incriminating evidence against accused Babloo is call detail record, disclosure of coaccused Rakesh regarding murder of deceased having been committed at rented accommodation of Babloo and the recovery of dead body pursuant to his disclosure statement.
FIR No.21/2011, PS. Gandhi Nagar Page 13 of 21 St. Vs. Babloo
34. The prosecution case is that coaccused Rakesh had taken deceased at the rented accommodation of accused Babloo at Rama Park Extension, Loni, and committed her murder there. It is also the case of prosecution that coaccused Rakesh had also called accused Babloo there for the keys of the room and he again called him after committing murder of deceased seeking his help in disposing off the body by making calls at mobile phone of his contractor. Call details record are on record, which proves that call from mobile number 8802102245 recovered from accused Rakesh was made to the mobile no. 9717089053. PW12 Sh. Md. Jainul, on whose mobile phone allegedly talks between accused Rakesh and Babloo took place, deposed that he did not hand over any mobile phone to the police and that police had seized a mobile phone having two SIMs from Sohrab, brother inlaw of his son Mohd. Rizwan. Whereas in his examination in chief, he deposed that Rizwan had gone to village about 1 ½ months prior to occurrence and the mobile phone was being used by Sohrab, Babloo and other labourers in his crossexamination by Ld. Addl. PP, he denied that the phone remained with Babloo, Majlis & other workers and volunteered that phone remained with Sohrab. He deposed that Sohrab had informed him that two telephone calls from the brother of Babloo were received for accused Babloo on the said phone between 18.01.11 to 22.01.11. He deposed that brother of Babloo had called Babloo for the key of his room situated at Rama Park. The testimony of PW12, who in his crossexamination by Ld. Counsel for accused has FIR No.21/2011, PS. Gandhi Nagar Page 14 of 21 St. Vs. Babloo admitted that his statement was based on the information given to him by others, cannot be relied upon on this aspect against accused Babloo, being hearsay evidence. Further, the version of this witness even if believed does not prove anything beyond the fact that phone calls from the number of accused were received on his mobile phone. He, nowhere says that he himself had seen any conversation taking place between accused Babloo and coaccused Rakesh on phone. Further, as per disclosure statement of both the accused, accused Babloo had gone to the rented room at Rama Park Extension and had served tea & snacks to accused and deceased and after receiving second call i.e after murder of deceased had again gone there and asked coaccused Rakesh to wait till it gets dark, which means that on that day, he remained absent from his work place for quite long time, however, there is no such evidence on record alleging that accused Babloo had remained absent from the work on the day of incident for a considerable time. Thus, the possibility of coaccused Rakesh having talked to someone else since as admitted by PW12, phone usually remained in the custody of Sohrab and not of accused Babloo, cannot be ruled out. The most important witness i.e Sohrab, who could have revealed the facts better, however, has not been made a witness for the reasons best known to the prosecution.
35. Further, PW16 Sh. Dinesh Kumar, landlord of aforesaid house at Rama Park Extension, Loni Ghazibad, has deposed that he had let out his house to Rizwan, who was doing the FIR No.21/2011, PS. Gandhi Nagar Page 15 of 21 St. Vs. Babloo boring work and not to accused Babloo. He though in his cross examination by Ld. Addl. PP, deposed that house was rented to Md. Jainul and his son Rizwan and the labour of Jainul and Rizwan also used to stay at the house, however, did not anywhere specifically name accused Babloo as the person, who used to stay at the room. Statement of witness rather shows that room was in the possession of Md. Jainul and his son Rizwan, to whom the same was let out and they might be having the actual possession of the same with the keys. PW12 Md. Jainul also nowhere in his deposition has stated that he had handed over the keys of the room to accused Babloo or that the same used to remain with Babloo. Nothing on that aspect has specifically come on record rather, it has come in evidence of PW23 Inspector Dinesh Kumar that when they reached at the room of Babloo, it was found unlocked, which fact gives strength to the possibility that room usually remained unlocked. Thus, it has not been proved on record, that the room, where murder was committed, was in exclusive possession of accused Babloo or that he had the keys of the room. In such circumstances, when prosecution has not been able to prove the exclusive possession of accused Babloo at the room, where murder was committed coupled with the fact that room was found unlocked when visited by police team, the case of prosecution falls weak in proving that fact of coaccused Rakesh's calling accused Babloo for the keys of the room and thereby failed to connect accused Babloo with the crime. Further, there is no evidence on record except the disclosure statement of coaccused Rakesh, FIR No.21/2011, PS. Gandhi Nagar Page 16 of 21 St. Vs. Babloo which proves accused Babloo was seen by anyone in the company of coaccused Rakesh and absconding accused Majlis while making preparation or actually taking the dead body to the pond.
36. The most clinching evidence shown against Babloo is the recovery of dead body as well as goods rickshaw, which was allegedly used for transporting the dead body to the pond, at his instance. The relevant testimony in this regard is of PW23 Inspector Dinesh Kumar and PW10 SI Prem Pal. PW23 in his cross examination has admitted that accused Rakesh had already disclosed during interrogation regarding the location and the place, where the dead body of deceased was disposed off. He has also admitted that accused Rakesh had already disclosed during his interrogation regarding the location and place, where the rickshaw allegedly used in disposing off the dead body, was hidden. PW10 SI Prem Pal has also deposed that after arrest, accused Rakesh had offered to get the body of deceased Meenu recovered from a pond at Rama Park Extn. Loni, Ghazibad.
Ld. Counsel for accused has relied upon judgment of Hon'ble Delhi High Court, wherein Hon'ble High Court in a case with similar circumstances cited as in 2012 Legal Eagle (Del) 2109 titled Manoj Kumar, Chaman Lal @ Kake, Manish @ Monu Vs. State held that "for the 'fact' which was already in the knowledge of the police, the disclosure statement of A2 was irrelevant. It is not a case of simultaneous disclosure on or about the same time. The law FIR No.21/2011, PS. Gandhi Nagar Page 17 of 21 St. Vs. Babloo is fairly well settled that the admissibility of the evidence under Section 27 of the Indian Evidence Act relates to the fact discovered on the information volunteered by the accused. The authorship of concealment and existence of such concealment within the exclusive knowledge of the accused is the criteria. If the fact discovered relates to the authorship of concealment and exclusive knowledge of the accused, that would be relevant and admissible. Under Section 27 of the Evidence Act, it is only the information which is first given that is admissible and once a fact has been discovered in consequence of information received from a person accused of an offence, it cannot be said to be rediscovered in consequence of information received from another accused person". In the said judgment, Hon'ble Court also relied upon the judgment in Budha VS. Emperor AIR 1925 Nag 404, wherein it was held that "Once property has been discovered in consequence of information received from a suspected person, it cannot be re discovered in consequence of information received from another suspected person. It is only the information that was given by the first person and which led to the actual discovery which may be proved under the terms of section 27 of the Evidence Act".
In view of the judgments of Hon'ble High Court cited above, the subsequent disclosure statement made by accused Babloo and recovery made pursuant to that is not admissible and cannot be read against accused since police already knew about the disclosure statement of coaccused and could have recovered the dead body as FIR No.21/2011, PS. Gandhi Nagar Page 18 of 21 St. Vs. Babloo well the goods rickshaw before making of disclosure statement by accused Babloo.
37. There are some contradictions also in the testimonies of prosecution witnesses, which makes the case of prosecution against accused Babloo less believable. PW20 Ct. Tej Singh, who was posted at Police Station Loni Chowki Pushta deposed that on 22.01.2011, he alongwith Ct. Vinod and SI Deviram had reached at the pond at Rampark Extension at about 5.30 pm. He deposed that Inspector Dinesh Kumar alongwith accused Rakesh were already present at the spot with other Delhi police staff. He deposed that on the bank of the pond, dead body of Meenu was lying in a plastic cover, which was taken out from plastic cover. He further deposed that body was identified to be that of Meenu by accused Rakesh himself. In his crossexamination by Ld. Addl. PP, he deposed that he does not know if accused Babloo was also present at the bank of the pond and volunteered that he saw only accused Rakesh present there. He further denied that body was taken out from the pond on the pointing out of both the accused. PW22 Ct. Raj Kumar photographer posted at Crime Team, however in his cross examination by Ld. Defence Counsel, stated that three accused persons were in the custody of police at that time. He stated that all the three accused persons had taken out the dead body from the pond. Hence, whereas PW20 Ct. Tej Singh says that only accused Rakesh was present at the spot, PW22 Ct. Raj Kumar deposed about FIR No.21/2011, PS. Gandhi Nagar Page 19 of 21 St. Vs. Babloo three accused persons present at the spot. The above contradiction coming out in the testimony of PW20 and PW22 creates a doubt regarding presence of accused Babloo at the spot.
38. Further, as per PW20 recovery of dead body was effected at about 5.30 pm at the instance of accused Rakesh only. PW 23 Inspector Dinesh Kumar also deposed that dead body was recovered at about 5.305.45 pm but at the instance of both the accused and that it was not so dark there and things were visible, however, PW6 Raju, public witness, who admitted that police asked him to become a witness of recovery says that dead body was recovered at about 6.30/7 pm and PW22 Ct. Raj Kumar, photographer has deposed that he had left the PS Gandhi Nagar at about 6.30 pm and that he had taken the photographs of the place of recovery after sun set at about 8.30 pm and that police persons had arranged for torches and other means of lamp. He has deposed that recovery of dead body was effected in his presence and he had photographed as well as videographed the same. If PW22 Ct. Raj Kumar had left PS Gandhi Nagar at about 6.30 pm then how could he witnessed the recovery of dead body from the pond, which was effected at about 5.30/5.45 pm. No certificate u/s. 65B of Indian Evidence Act proving the genuineness of CD has been placed on record. Further, PW7 Sh. Bhagwan Dass, father of deceased also deposed that he was with the police team when accused Babloo was arrested, however admitted in crossexamination that police did not FIR No.21/2011, PS. Gandhi Nagar Page 20 of 21 St. Vs. Babloo interrogate accused Babloo in his presence. In view of the contradictions coming out in the testimonies of above witnesses, any disclosure statement having been made by accused Babloo and recovery of dead body and goods rickshaw at his instance, becomes doubtful.
39. In view of above, though it has been proved on record that the body of deceased was recovered from a pond and the goods rickshaw was also recovered from near House at Rama Park Extension, prosecution has failed to adduce on record any cogent evidence to establish that the same was recovered at the instance of accused Babloo, pursuant to his disclosure statement. No incriminating material was recovered from the possession of accused Babloo. The evidence, against accused Babloo is very meagre and cannot be the basis of his conviction u/s. 201 IPC. Accordingly, accused is given benefit of doubt and is accordingly, acquitted of the charge framed against him.
Announced in the open court
on 03.06.2017 (Sanjeev Kumar Malhotra)
ASJ/FTC/ECOURT
Shahdara/KKD/Delhi
SANJEEV
KUMAR
MALHOTRA
Digitally signed by SANJEEV KUMAR MALHOTRA
DN: c=IN, o=OFFICE OF THE DISTRICT AND
SESSIONS JUDGE DELHI,
• .• .• .• • =fc• • • • a• • • eb• • • • a• • • • • • • • • ed• • • bd• f • ee• • • • • • • • dc• • • a• • f• • • • c• b• • , ou=MANAGEMENT,CID - • • • • • • • , postalCode=• • • • • • , st=Delhi, cn=SANJEEV KUMAR MALHOTRA Date: • • • • .• • .• • • • :• • :• • +• • '• • ' FIR No.21/2011, PS. Gandhi Nagar Page 21 of 21 St. Vs. Babloo