Delhi District Court
State vs . Ashish @ Nirmal Etc. on 4 March, 2017
(Judgment) FIR No.125/12
PS Swaroop Nagar
State Vs. Ashish @ Nirmal etc.
42
IN THE COURT OF SHRI PANKAJ GUPTA:ADDL. SESSIONS JUDGE-II
(NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No.20/13
Unique Case ID: 02404RO305562012
State
Vs
1. Ashish @ Nirmal
S/o. Ram Kishan
R/o. Village Pahara,
PS Kabarai, District Mohaba,
Uttar Pradesh.
2. Renu
W/o. Sunil
R/o. H.No.1424, J Block,
Gali No.2, Swaroop Nagar,
Delhi.
FIR No. : 125/12
Police Station : Swaroop Nagar
Under Section : 302/363/201/120B/34 IPC
Date of committal to Sessions Court : 21.01.2013
Date on which judgment reserved : 04.03.2017
Date on which judgment pronounced : 04.03.2017
JUDGMENT
1. This is a case under section 302/363/120B/201/34 Indian Penal Code, 1860 (IPC).
2. Case of the prosecution is that the accused no.1 was the tenant in the house of Ranbir Singh, situated at J Block, House No.1423, Gali No.2, Swaroop Nagar, Khadda Colony, Delhi (the said house). Since, Ranbir Singh objected to the visit of the accused no.1 to the house of the accused no.2 and had also objected to the visit of Islam @ Bunty (JCL) to his house to meet the accused no.1 and also scolded him, Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 once he spitted tobacco on the staircase, the accused no.1 became inimical towards him. Consequently, on or before 13.07.2012, both the accused along with JCL hatched a criminal conspiracy to kidnap and murder Gaurav, son of Ranbir Singh (the child). In pursuance thereto, on 13.07.2012, at about 6.00 p.m., the accused no.1 along with JCL kidnapped the child from the said house and took him at Ganda Naala, opposite Oriental Bank of Commerce, PS Swaroop Nagar (Ganda Naala) and committed murder of the child by strangulating him and threw the dead body of the child in the Ganda Naala. Subsequently, they caused the evidence of murder to disappear to save themselves from the legal action.
CHARGE
3. Charge under section 120B and sections 363/302/201/120B IPC were settled against both the accused. Both the accused pleaded not guilty and claimed trial.
EVIDENCE
4. In order to discharge the onus, the prosecution has examined 25 witnesses.
PUBLIC WITNESSES
5. PW9 Ranbir Singh (father of Gaurav/the child) deposed that on 13.07.2012 at about 6.00 p.m., his wife Priya went to the market to purchase vegetable. That time, his son Gaurav (aged about 7 years) and his daughter Chetna were at home. At about 7.30 p.m., his wife came back to the house, but the child was not there. She tried to search him, but remained unsuccessful. At about 7.45 p.m., his wife called him and then searched for the child in the locality on his asking. At about 8.00 p.m., he reached his house and within 15 minutes, he visited the police booth and informed that the child was not traceable. At about 8.45-9.00 p.m., he reached at PS Swaroop Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 Nagar and got lodged the DD no.34A Ex. PW6/A about missing of his child with necessary particulars. The accused no.1 was the tenant in his house for eight months prior to the date of incident. The accused no.1 was on visiting terms with the accused no.2, the neighbour, but he objected to the said visit of the accused no.1 and also scolded him for the same. He also asked the accused no.1 to vacate the house once or twice. On that, the accused no.1 was not talking with him and seen inimical towards him. Islam @ Bunty (JCL) used to visit the room of the accused no.1 and he also told him not to come there. He had suspicion on the accused no.1 and JCL in missing of his child as they used to talk on mobile phone on many occasions. Father of the accused no.1 came to the room after two three days of missing his son. After two/three days of missing his son, he snatched the mobile phone of the accused no.1, his father and JCL. After four/five days of missing his son, the accused no.1 had gone for his work, but did not return thereafter. He handed over the mobile phones to the police, which were seized vide seizure memo Ex. PW9/A. After three days of missing of his child, Jai Narain (PW13), resident of a street at the back side of his house, told him that on 13.07.2012 at about 6.30 p.m., he had seen the accused no.1 taking away his child on a bicycle. Thereafter, he waited for the accused no.1, but he did not come back. Next day morning, he along with PW13 went to the police station and informed so. On 28.07.2012, he reached at Ganda Naala and identified the nicker, T-Shirt and Tagdi (Kondhani) of his son. After postmortem, the police handed over the recovered articles and bones to them to perform the last rites of his son. He identified both the accused. He also identified the mobile of JCL Ex. P1, mobile phone of the accused no.1 Ex. P2 and the mobile phone of father of the accused no.1 Ex. P3.
6. In cross-examination by counsels for the accused, he deposed that he knew Ashish Chugh (PW21), Ravi (PW20) and PW13. He knew PW20 and PW13 even prior to the incident, being the residents of the same locality. After 13.07.2012, he searched for the child in the area and people at large came to know about his missing son. Nobody from the house of PW13 joined in search of his son on 13.07.2012. It was on the Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 second or third day of missing of the child, PW13 informed him that he had seen the accused no.1 taking away his son on his bicycle. The accused no.2 resided in his neighbourhood along with her husband, two children and married brother-in-law. When the child was missing, husband of the accused no.2 accompanied him in search of his son on 13.07.2012. He scolded the accused no.1 about 15 days prior to the date of missing of his son on account of his visit to the house of the accused no.2. He never made any complaint to the husband of the accused no.2 to this effect. He never used the three mobile phones snatched from the accused no.1, his father and JCL and admitted that he did not hand over the said phones to the police on the same day, but handed over three/four days thereafter. The phones were not switched off and were in working condition. He admitted that he had not informed the police that his son was wearing the tagdi, having beads one black and one white and also the ghungroo. They could not tell the condition of the clothes, but both shirt and nicker were torn and smeared with mud. He was not having any suspicion on the accused no.1, when he went to the police to lodge the missing complaint. Father of the accused no.1 came to meet him after two/three days of missing his son. At the time of incident, PW13 was not his relative. His younger brother was the co-brother of his son since last six to seven months. Earlier, he did not tell the police that he snatched the mobile phones of the said persons and deposed that he was hopeless that time. He denied the suggestion that the said mobile phones were handed over on 17.09.2012. JCL was arrested on 22.07.2012 and the accused no.1 was arrested three/four days thereafter. He told the police that PW13 informed him that he had seen his son with the accused no.1, but he did not remember, whether it was recorded by the police. He was present at Ganda Naala, where the police got the skeleton remains and other articles recovered from the Ganda Naala. He gone there in the morning. His brother Rajpal (PW17) was present at Ganda Naala at the time of recovery of the articles. He did not tell the police that the accused no.1 was annoyed with him on account of his objection to his visiting the house of the accused no.2 in absence of her husband and explained that that time he thought, it was not relevant. On one occasion, his wife scolded JCL Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 for spitting tobacco on the staircase and there was a dispute between him and his wife. He did not tell the said fact to the police. On 13.07.2012, PW13 did not join him in search of his son. In the evening of 14.07.2012, PW13 informed him the said fact. He did not go to the police immediately, when PW13 informed him having seen his son with the accused no.1. He visited the police on 15.07.2012 and PW13 was with him that time. He again went to the Police Station on 16.07.2012 and deposed that he was visiting the Police Station almost every day. He had suspicion on the accused no.1 because of his behaviour and conduct as he ran away from his house, once he took his mobile.
7. PW13 Jai Narayan deposed that on 13.07.2012 at about 6.15 pm, he was present at the turn of street no. 2 Swaroop Nagar and saw son of PW9 in lap of the accused no. 1 who was sitting on the carrier of the bicycle which was driven by another person. He thought they were taking the child for a round. Next day evening, at about 6.30- 7.00 pm, he came to know that the child was missing. He met PW9 and informed him that he saw his son in the lap of accused no. 1 with another person on the bicycle but he did not believe. On 15.07.2012, PW9 took over mobile phones from accused no. 1, his father and JCL and thereafter, they ran away from the residence and did not return. That time, PW9 believed his information. On 16.07.2012, he along with PW9 went to the police station and gave the information which the police recorded. He identified accused no. 1 in the court. In his cross-examination, he deposed that for the last 4-5 years, he used to visit the house of PW9 who also used to come at his house, however, for the last 7-8 months they had become relatives. His house was situated in the back street just behind the house of PW9. He informed PW9 on 14.07.2012. He was present in Delhi on 13-14.07.2012. Accused no. 1 and his father were in the house of PW9 on 14-15.07.2012 and denied the suggestion that he was present up to 20.07.2012 and thereafter, was lifted by the police. Younger brother of PW9 was co- brother (Saadu) of his son. His family members did not tell him on 13.07.2012 that son of PW9 was missing. On 13.07.2012, PW9 did not come to him. On 15- Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 16.07.2012, he tried to search the child along with PW9. The entire colony was looking for the child.
8. PW20 Ravi deposed that he knew JCL as he and his father worked with him. On 13th of the year 2012, month he did not remember, JCL along with one boy came to him and asked for his bicycle at about 2.30 p.m. and told that they had some important work and took the bicycle. Next day, JCL worked for half day and returned with the bicycle in the afternoon. Thereafter, he did not meet him for three days. In the morning of 18th, JCL came to him and asked for some work, however, he told that he had no work. JCL told him that the landlord of the accused no.1 had taken his mobile as well as mobile of the accused no.1. He asked as to why the landlord had taken his mobile, he replied that son of the landlord was missing. He noticed that JCL was scared and perplexed and therefore, he asked him as to what was the matter, JCL replied that he and the accused no.1 had taken the missing child on the bicycle, which they had taken from him, which was driven by him while the accused no.1 was sitting on the back with the child. JCL also informed that after that, he took the child to Ganda Naala and he stood on the road near the Naala, while the accused no.1 took the child inside the Naala and came back alone, when he asked the accused no.1, as to what happened to the child, the accused no.1 replied that he had strangulated the child and threw his body inside the Naala and thereafter, he came back and started searching the child. Next day, he went to the Police Station and informed SI Krishan about the information given to him by JCL. He identified the accused no.1. In his cross-examination, he deposed that on 18th, when JCL told him the said fact, he did not go to PW9, who was residing in the same area. He was not aware about the missing child before it was disclosed to him by JCL. He identified the accused no.1 at Ganda Naala, when he came to know that a large number of persons had gathered there. He told the police that the accused no.1 was same boy, who had come along with JCL. He admitted that his statement regarding identification of the accused no.1 was not recorded by the police nor any document was prepared. When he received the Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 summon from the Court, PW9 came to his house and asked him to come to the Court. He denied the suggestion that he was planted witness at the instance of PW9 or that he had not handed over his bicycle to JCL. On 18th, he did not tell father of JCL about what had been informed by JCL to him. He did not ask the accused no.1 regarding the information given by JCL to him. He had gone to Police Station because he knew the child was missing as there was announcement in the area to this effect. Before going to the Police Station, he did not confirm about the correctness of the statement made by JCL either from the accused no.1 or PW9, or any other person. His statement was recorded on two occasions, one on 19th and another on 22nd, when JCL was arrested. When the police seized his bicycle, no document was seized from him.
9. PW21 Ashish Chugh deposed that he was known to PW9. On 13.07.2012, he had gone to the police station along with PW9 to inform about missing son of PW9. At about 7.00-7.30 pm, PW9 came to him and informed him about his missing son, then he along with PW9 and other neighbours searched for the child but could not succeed. On 15/16.07.2012, the accused no. 1 was found missing from the house of PW9 and PW9 doubted the accused no. 1. On 23.07.2012, he was called at GTK Bypass, where the accused no. 1 alighted from the bus where, at the instance of one person, he was arrested. Accused no. 1 made his disclosure statement Ex.PW18/C. He relied upon the site plan of place of recovery Ex.PW18/B. Accused no. 1 led them to the spot near OBC Bank and pointed out towards a plastic bag lying inside the Nala as the one which contained dead body of the deceased. The katta was already opened with the skeleton outside. Thereafter, parents of the child were called and uncle (Chacha) of the child identified the nicker and T-shirt of the child. Police collected the skeleton remains, Katta, clothes and Tagdi. Accused no. 1 was arrested vide arrest memo Ex.PW18/A. He relied upon personal search memo Ex.PW18/B and memo of recovery of dead body and clothes Ex.PW12/A. He also proved the pointing out memo Ex.PW21/A. In his cross-examination, he deposed that disclosure statement of the accused no. 1 was not recorded by IO in his own handwriting but Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 was written by some other official on his dictation. The clothes of the deceased, Tagdi and Katta were on the slanting portion of the Naala which was dry and grass was growing on the same. PW9 and his wife did not reach at the place of recovery. He denied the suggestion that the accused no. 1 did not make any disclosure statement. He noticed that the T-shirt was slightly torn as if some dogs had pulled it out. One mobile phone was recovered from accused no. 1 in his presence. He knew PW13 being the local resident. PW13 was also with them while searching the child since 13.07.2012. He did not see PW13 searching on 13.07.2012 but so on 14.07.2012. On 14.07.2012 he was searching the boy with PW9 but PW13 was not with them, as he was in a different teams to search the child. They also searched in the area where the accused no.1 had claimed that he had thrown the dead body of the child. They did not search for the child near OBC Bank. At that time, one Ravi was present.
10. PW17 Rajpal (cousin brother of PW9) deposed that Vicky (PW12) was his cousin brother. On 28.07.2012, the police informed him that the dead body was found near Nala, Swaroop Nagar. Thereafter, he along with PW12 reached there. Police officials were there. They reached near the Ganda Naala and the police took in possession the recovered articles and seized the same vide seizure memo Ex.PW12/A. He identified the recovered articles vide Ex.PW17/A and the same were received after postmortem vide memo Ex.PW17/B. PW9 was also present at that time. PW17 in his cross- examination deposed that he was residing at Burari while PW13 was residing at Swaroop Nagar and they used to meet within 10-15 days. On 28.07.2012, he was present in the house of PW9 when the police informed him. That time, PW12 and PW9 were there. PW9 received the information about recovery of the dead body by the police on phone at about 4.00 pm and he informed him about the same. He along with PW12 reached at the spot but PW9 had not accompanied them. He did not know whether PW9 had come to the spot or not, but he had not seen him. SHO recorded their statements at the place of recovery.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
11. PW 12 Vicky deposed that the child was his nephew. PW17 was his cousin. On 28.07.2012, he came at the Ganda Naala. PW17 and the police were present there. At the instance of the accused no. 1, one blue color nicker, one T-shirt of white smeared with mud and one tagri were recovered from there. He and PW17 identified the same as belonging to the child. Police took the same in the possession. Bone pieces were also found there and were taken into possession by the police. One skull bone and one plastic bag were also found at the instance of accused no.1. The police got photographed the said articles. Seizure memo Ex. PW 12/A was prepared in his presence after seizure of the above said articles. In his cross examination, he deposed that on 28.07.2012, he was at his house. He was informed by PW17 that he had to go to the police station for identification of the body and from there they went to the ganda naala. When he reached the ganda naala, he met PW17 there. He was standing on the top side of the naala and place from where the recovery of the clothes and the katta was made, was inside the naala and therefore, he was witnessing the recovery from the distance, hence, he could not tell exactly whether the clothes were together or scattered or taken out from the katta. He deposed that he could only notice that there was a gadda and a stone from where the articles were recovered. He did not recollect if photographs were taken of the spot. He had seen the tagri and the bones for the first time in the police station. In reply to the court question, he stated that he did not see anything at the ganda naala. He was standing very far from the spot where the proceedings were taking place. PW17 was not with him at the place where he was standing and he did not know where he was at that time. Police did not record his statement but only asked him to sign some documents in the police station regarding collection of bones etc.
12. PW 14 Parmod Kumar deposed that he knew the accused no. 2 and had friendly relationship with her who was residing in the house behind the godown. He had mobile phone no. 9999421475 and the accused no. 2 had mobile phone no. 9654062465. They used to talk with each other on the mobile phones. The accused no. 2 called him on his mobile phone and told that a child of her neighbor was Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 missing.
13. PW15 Najar Mohd. deposed that he had two mobile numbers. He did not remember the said mobile numbers as the same were lost in the bus while he was traveling. JCL was his son. The accused no. 1 was friend of JCL. ID proof EX PW 10/B belonged to him and on the basis of the same mobile number 9958114271 was issued in his name. ID proof EX PW 11/F belonged to him and on the basis of the same mobile number 9654062465 was issued in his name. ID proof EX PW 11/B belonged to him and on the basis of the same mobile number 7838263126 was issued in his name. He denied that he had also taken the mobile No. 9540742583. He showed his ignorance as to whether JCL had taken the above said mobile phones on his ID. He denied the suggestion that JCL was using the mobile number 9540742583. In cross examination by APP for the state, he denied the suggestion that he had stated to the police that the mobile number 9958114271 and 7838263126 and 9654062465 were taken from the service provider by JCL on his ID proof or that JCL had given the mobile numbers to the accused no.1 or that he had stated to the police that JCL was using the mobile No. 9540742583. Confronted with the statement EX PW 15/PX1 where it was so recorded. In his cross examination by counsels for the accused, he deposed that three months before 13.07.2012, he had gone to Ajmer and came back after 21.07.2012 and found his luggage missing. He did not know who had stolen his ID in his absence. He admitted that cell bearing No. 9958114271, 9654062465, 7838263126 were never got issued by himself and the endorsement form of respective numbers did not bear his signatures.
POLICE/OFFICIAL WITNESSES
14. PW6 SI Sombir proved the DD no.34A dated 13.7.2012 Ex.PW6/A and copy of FIR no. 125/12 Ex.PW6/B. Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
15. PW1 SI Baljeet relied upon the seizure memo of the pullanda duly sealed with the seal of FMT BJRM along with sample seal Ex.PW1/A.
16. PW7 HC Charan Singh proved the entry in Register No. 19 vide mud No.628/12 Ex.PW7/A; entry in Register No. 19 vide mud No.686/12 Ex.PW7/B. He also relied upon the copy of RC No. 67/21/12 Ex.PW2/A and copy of acknowledgment Ex.PW2/B.
17. PW2 Ct. Sukhdev Singh proved the copy of the RC No.67/21/12 dated 14.8.2012 Ex.PW2/A and copy of acknowledgment Ex.PW2/B.
18. PW3 SI Sanjeev Kumar proved the Crime Team Report Ex.PW3/A. In his cross examination, he deposed that they reached the spot at around 4:20 PM. When he reached the spot, a large number of police officials were present there along with PW9 and the accused. The clothes which were got recovered on the pointing out of the accused no.1 were in dry condition. He only found the T-shirt torn but about the jeans he could tell for sure but he did not think it was torn. The pieces of skeleton were found scattered at various places. Apart from the nicker and T-shirt, one plastic katta and pieces of skeleton, nothing else was recovered. He remained at the spot till 5:30 PM and prepared the report at the spot and handed over to PW23. The plastic katta/bag which was recovered was in an open condition but he did not check whether it was torn from any place or not. The clothes recovered were not inside the mud. There was mud on the clothes. Apparently he did not notice any blood on the clothes, plastic katta/bag but he was not sure. PW9 was near the booth at that time. He denied the suggestion that the entire recovery had already taken place a week before and the scene of crime had been created on 28.07.2012 only to fabricate and connect the accused with the evidence.
19. PW4 HC Sudheer proved the photographs Ex.PW4/A-1 to A-10 and their negatives Ex.PW4/B. In his cross examination, he deposed that he had taken the Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 photographs of the various spots as pointed out by the accused i.e. where the skeleton remains were present and of the white plastic katta, the T-shirt and nicker. In his presence, the IO did not seize or seal anything. He did not notice the condition of the clothes. He only took the photographs on the pointing out of the IO.
20. PW5 SI Manohar Lal proved the scaled site plans which are Ex.PW5/A & Ex.PW5/B. In his cross examination, he deposed that the distance between mark A and B on Ex. PW 5/B is 150cm. The distance between point A and point C reflected on Ex. PW 5/B is approximately 207 meters. Point B and point C are both areas inside the ganda naala. The distance between the police booth and point D and E of site plan Ex. PW 5/A through/ via the bridge was appropriately 80 meters.
21. PW18 HC Ashok Kumar deposed that on 28.07.2012, he joined the investigation and got the information that the accused no. 1 would come at GT Karnal Road from Anand Vihar. He along with SHO, PW21, the secret informer and one more police constable reached at the spot. At about 1.00 pm, the accused no. 1 was arrested on the pointing out of the secret informer. He proved his arrest memo Ex.PW18/A, personal search memo Ex.PW18/B, disclosure statement Ex.PW18/C of the accused no. 1. Accused no. 1 led them to Swaroop Nagar Pulia and got recovered the bones. He proved the site plan of place of recovery Ex.PW18/D. Thereafter, on the pointing out of the accused, he along with SHO went inside the Nala and PW23 recovered some bones along with blue colour nicker and white T-shirt and one white plastic katta. In the meantime, Crime Team reached at the spot. PW12 and PW17 also reached at the spot. Crime Team took the photographs. T-shirt and nicker was handed over to PW17. He got done the medical examination of the accused no. 1 and deposited the bones to BJRM Hospital for postmortem. He also proved the arrest of the accused no. 2 vide arrest memo Ex.PW16/A. He also proved the personal search memo Ex.PW16/B and disclosure statement Ex.PW16/C of the accused no. 2. In his cross-examination, he deposed that he did not notice PW9 and his wife at the place of Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 recovery. He did not notice any blood on the katta. When the T-shirt was recovered, it was dry and he did not notice any blood on the same because it was mud-stained. He did not notice any blood on the articles got recovered by the accused no. 1 at the spot included bones, clothes and katta. He denied the suggestion that the accused no. 1 was already in police custody since last one week prior to 28.07.2012. He denied that the bones had already been recovered and were planted at the spot to connect the accused no. 1 in the present case. The bones were recovered from point E as shown in site plan Ex.PW18/D encircled with red pen. He deposed that the arrest memo of the accused no. 2 was got signed by her husband, but her arrest memo did not bear the same.
22. PW19 SI Krishan Kumar (1st IO) deposed that on 13.07.2012, on receipt of missing report of the child, he recorded the statement of PW9 and searched for the child but could not succeed. On 16.07.2012, PW9 came along with PW13 and informed that he had seen the missing child along with the accused no. 1 and the child was sitting on the left on the pillion seat while another boy was on the driver seat and they were going towards the market. PW9 raised suspicion against the accused no. 1 after the version of PW13. He searched for the accused no. 1 but could not succeed. On 19.07.2012, Ravi (PW20) came to him and informed that on 13.07.2012, the accused no. 1 had come along with JCL and they asked for his bicycle, but he refused to give on the pretext that it was punctured. However, they insisted that they would get the punctured fixed and took away the same. On 14.07.2012, JCL returned the bicycle. PW20 informed him about the extra judicial confession made by JCL. On 20.07.2012, PW20 gave him the address of JCL. On 22.07.2012, SHO instructed him to reach Ganda Nala along with the staff, the case file and PW20. At about 2.30 pm, PW20 pointed out towards a boy i.e. JCL. Accordingly, JCL was apprehended. On 26.07.2012, JCL made the disclosure statement and informed that they had thrown the dead body in the Ganda Nala. Since, JCL did not point out the exact place where the body was thrown, hence, no Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 recovery could be effected on that day. In his cross-examination, he deposed that he came to know on 19.07.2012, on the basis of statement of PW20 that the child had been killed and the body of the child had been thrown in to Nala after killing him. The divers had come on the asking of SHO on 20-21.07.2012 but could not locate the dead body.
23. PW 16 L/Ct. Nandini Sehkawat that on 28.07.2012, she joined the investigations with Insp. Jitender Singh and reached at house No. J-1424, Khada colony, Swaroop Nagar, gali No. 2 at about 7 PM from where the accused no. 2 was arrested vide arrest memo EX PW 16/A. Her personal search was conducted by her vide memo EX PW 16/B. Her disclosure statement was recorded by the IO i.e. Ex.PW16/C.
24. PW 23 Insp. Jitender Singh (2nd IO) deposed that on 13.07.2012, a missing report of 07 years old boy namely Gaurav was lodged by his father and an FIR No. 125/12 U/s 363 IPC was got registered and was marked to ASI Krishan Kumar (PW19) for investigation. During investigation, PW19 tried to find out the missing boy but no clue was found till 19.07.2012. PW19 recorded the statement of PW20 who informed him about the extra judicial confession made by JCL. The search of the accused no. 1 and JCL was conducted at various places. He also deposed about the arrest and disclosure statement of JCL. Despite best efforts the dead body could not be recovered and therefore JCL was sent to JC. He also deposed about the arrest of the accused no. 1 on 28.07.2012 and related proceeding thereto as deposed by PW18. The accused no. 1 in his disclosure statement disclosed that he strangulated the child and thrown the body in pusta naala and thereafter, he again went to the place of occurrence on 16.07.2012 to see the dead body to ensure whether the body had flown from there or not, but he noticed that body was struggled in bushes about 15-20 feet away, he put the body in plastic bag and went to dumb it in ganda naala near Swaroop Nagar but on reaching ganda naala he noticed the movement of persons there and had thrown the plastic bag containing dead body in ganda naala and fled Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 away. He proved the 25.35(1)(b) form Ex. PW 23/A, statement of identification of body Ex. PW 23/B EX PW 17/A. He made a request for conducting the postmortem vide application Ex. PW 23/C and proved the Brief facts Ex. PW 23/D. The dead body along with all the articles recovered were sent for postmortem examination in BJRM Hospital.
25. PW23 also deposed about the arrest of the accused no. 2 as deposed by PW16. He also deposed that on 09.07.2012, after postmortem, the skeleton of the child along with clothes etc was handed over to his parents for his last rites vide memo Ex. PW 12/A. After postmortem examination, a sealed pullanda containing a hip bone was handed over to SI Baljeet Singh by Autopsy surgeon for DNA profiling. SI Baljeet Singh handed over the said pullanda to him which he seized vide seizure memo Ex. PW1/A. On 14.08.2012, the exhibits were sent to FSL, Rohini for DNA profiling. Parents of the child were also sent to FSL for blood sample. On 17.09.2012, the scaled site plan was got prepared of the place of occurrence and place of recovery of the dead body through SI Manohar Lal i.e. the site plan Ex.PW5/A (where initially the dead body was thrown by the accused no. 1) and the site plan Ex.PW5/B (where the murder took place and show the place in the naala where the dead body of Gaurav was thrown by the accused no. 1 and from where the dead body was took out by the accused no. 1 on 15.07.2012). After necessary investigations, he prepared the charge sheet and filed the same in the court. Later on, he collected the FSL and CFSL results and same were filed in the court. On 17.09.2012, PW9 handed over the mobile phones which were taken into possession vide memo Ex.PW9/A. He also prepared the rough site plan of the place of incident where the child was murdered, at the instance of JCL Ex. PW23/E. He identified the accused in the court. He also identified one mobile phone of Bossam belonging to JCL Ex.P1, the mobile phone of TV mobile of the accused no. 1 Ex.P2 and the mobile phone of NOKIA belonging to father of the accused no. 1 Ex.P-3.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
26. In cross examination, PW23 denied the suggestion that on 28.07.2012, the accused no. 2 was forcibly taken from her house. He deposed that he did not record statement of any neighbor with effect as to whether any illicit relationship were between both the accused. He admitted that mobile number 9654062465 was not subscribed in the name of the accused no.2 but was subscribed in the name of PW15. He admitted that as per CDR data, there was no talk between phone no. 07838263126 and phone number 09654062465 after 05:27:10 PM on 13.07.2012 till midnight of 13.07.2012.
27. PW23 also deposed that while making the complaint, PW9 did not express his suspicion on anybody and did not inform that the child was wearing a tagri containing gungroo, kori, mani's etc. For the first time, he came to know that the missing child had been killed on 19.07.2012. All the statements U/s 161 Cr. P.C. and the site plan were got written and prepared by SI Kali Ram on his dictation but he had not mentioned this fact in the judicial file or in the police file. He personally did not written the disclosure statement of the accused no. 1 dated 28.07.2012 and the same had been got written by HC Ashok on his dictation. He had not written the disclosure statement of the accused no. 2 and the same had been got written by Ct. Nandu on his dictation. He explained that during that period, his thumb was not working properly as it was injured. There was no documents in the judicial file which had been written/prepared by him in his own handwriting. On 19.07.2012, PW20 did not meet him nor made any statement before him but met PW19 who recorded his statement on 19.07.2012. He denied the suggestion that the accused no. 1 was not arrested on 28.07.2012 whereas he was in illegal detention for one week prior to 28.07.2012 and later on was falsely implicated in the present case only to solve the present untraced case under the pressure of the public. PW9 had taken three mobiles belonging to accused persons and their father in his custody on 15.07.2012 and the same were handed over to him on 17.09.2012. In between, PW19 did not inform him regarding the custody of said mobile phones. The recovery witnesses of bones, skeleton and the Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 clothes of the deceased came at the spot on 28.07.2012 at their own and the police did not call them at the spot. PW9 and his wife did not come at the spot at the time of recovery of dead body. At the time of recovery, PW21 was also present. He denied the suggestion that the accused no. 1 was in illegal custody of the police along with JCL since 22.07.2012. All the three SIMs were in the name of the father of JCL.
28. PW23 also deposed that he did not record the statement of SI Kali Ram U/s 161 Cr. P.C. and he had not cited as a witness in the present case as he had only written the statements on his dictation and he had forgotten to cite him as a witness. HC Ashok had also written some statements. T-shirt and the nicker which were recovered from the spot were not torn. The katta was also not torn. The skeletal remains, clothes and tagri were not submerged in the water of the naala. Between 19.07.2012 to 28.07.2012, they were regularly searching for the body and divers/boat men were also called for the said purpose who were searching the naala for the same. They had also searched that area prior to 28.07.2012 but could not find the body. They were searching inside the water whereas these articles and skeletal were lying on the dry area on the banks where there was long grass and they were hidden by the grass. He admitted that the bicycle which was allegedly got recovered from PW20 was lying in the police station which he had not collected till date. No seizure memo of the cycle had been made. PW19 had never disclosed to him that he had come to know about the death of the child on 16.07.2012. In fact, PW19 was also not aware of the same. He admitted that no definite opinion had been given in DNA fingerprinting with regard to the hip bone recovered at the spot as that belonging to the child of PW9 and his wife.
29. PW-25 Inspector Yaspal Singh deposed that on 17.09.2014, the DNA result from DFS, Gandhi Nagar, Gujarat of the present case was received in the police station. Accordingly, he filed the DNA report along with supplementary charge sheet and proved the DNA report Ex.PW25/A. Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 NODAL OFFICER
30. PW 10 Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. deposed that the mobile No. 9958114271 stood in the name of PW15. He proved the customer application form Ex.PW10/A, copy of election I card in support of residence proof Ex.PW 10/B, call details record from the period 01.07.2012 to 28.07.2012 Ex.PW 10/C, cell ID chart Ex.PW 10/D and certificate of 65 of Indian Evidence Act Ex.PW 10/E.
31. PW 11 Anuj Bhata, Nodal Officer, Vodafone mobile services Ltd. deposed that the mobile No. 7838263126 stood in the name of PW15. He proved the customer application form EX PW 11/A, copy of election I card in support of residence proof Ex. PW 11/B, call details record from the period 01.07.2012 to 28.07.2012 Ex.PW11/C and certificate of 65 of Indian Evidence Act Ex.PW11/D. He also deposed that mobile No. 9654062465 stood in the name of PW15 and proved the customer application form Ex. PW 11/E, copy of election I card in support of residence proof EX PW 11/F, call details record from the period 01.07.2012 to 28.07.2012 Ex.PW11/G, certificate of 65 of Indian Evidence Act Ex.PW11/H and cell ID chart Ex.PW11/I. MEDICAL EVIDENCE
32. PW-8 Dr. Bhim Singh, In-charge, Mortuary, BJRM Hospital, Delhi deposed that on 29.07.2012 at about 12.50 pm, he conducted the postmortem on the dead body on the request of PW23 with alleged history of missing report from 13.07.2012, incomplete skeleton found on 28.07.2012. On examination, incomplete skeleton having skull bone separated at coronal, sagital, lambdoid sutures into five pieces, orbits square shaped, zygomatic arch pronounced, palet u shaped, mandible absent. Three molars present on each side of upper jaw, two molars temporary, last molar was Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 permanent, incisors and canines absent, right side hip bone present in three pieces, two incomplete shaft of femur and one tibia was present, right humerous shaft present, scapula bones were present, ribs second to fifth of righ side and fourth to seventh of left side. All the bones shown animal bites at places. All the internal organs were absent. He opined that no definite opinion regarding cause of death was possible due to advanced stage of decomposition. Skeleton was of human aged about 6 to 8 years male. Time since death around two to three weeks.
33. PW8 also deposed that after postmortem, he handed over the hip bone in sealed condition to the police official for DNA examination. He proved his detailed postmortem report Ex.PW8/A. In his cross examination, he deposed that he had seen the teeth marks of the animals on the bones of the deceased but there was no blood.
34. PW24 Ms. Seema Nain, Sr. Scientific Officer (Biology), FSL,Rohini, Delhi deposed that on 14.08.2012, three sealed parcels were received in the present case and were marked to her for DNA Examination. She proved the report Ex.PW24/A. As per her observations, exhibit 1 (piece of bone), exhibit 2 (blood sample of Ranvir Singh) and exhibit 3 (blood sample of Priya) were subjected to DNA isolation. DNA was isolated from source of exhibit 1 (piece of bone), exhibit 2(blood sample of Ranvir Singh) and exhibit 3(blood sample of Priya). Minifiler amplification kit was used for each exhibit and Data was analyzed by Gene Maapper IDx Software. DNA profile from the source of exhibit 1 (piece of bone) exhibit 2 (blood sample of Ranvir Singh) exhibit 3 (blood sample of Priya) were generated. STR analysis performed on the exhibits 1 (piece of bone) exhibit 2 (blood sample of Ranvir Singh), exhibit 3 (blood sample of Priya) was sufficient to conclude that the DNA profile generated from the source of exhibit 1 (piece of bone) was not similar with DNA profile from the source of exhibit 2 (blood sample of Ranvir Singh) and exhibit No. 3 (blood sample of Priya).
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
35. PW-24 also deposed that on 31.05.2013, she had given the requisition letter Ex.PW23/F in connection with the DNA examination in the present case stating that in the present case DNA profiling/examination, result were not coming from the exhibits (hipbone) sample. If any other sample like molar tooth/femur bone was available. She asked the IO to deposit (as per PM Report) to the FSL, so that conclusive opinion could be given from the laboratory, if possible, with maximum efforts. Initially, the DNA profiling was not coming with the available exhibit. She had been asked and was under pressure to give the final result within the committed date to the court. Hence, she used another kit (Mini Filer) by which even DNA could be generated from degraded sample and submitted the report on the basis of the same exhibit. She proved her report dated 05.06.2013 Ex.PW24/A.
36. PW24 in reply to the question raised by ld. Addl. PP, deposed that she had given the opinion on the same exhibit. The time taken for examination for DNA purpose of an exhibit varies from sample to sample. It took about 2-3 months in giving/examining/repetition for giving opinion regarding DNA for hipbone i.e. exhibit in the present case. She re-examined the exhibit with the Mini Filer Kit which was already under process of examination on 05.06.2013 itself and gave the report. She gave the report under pressure to submit the report within stipulated time. She admitted that the Mini Filer Kit for DNA purpose would only works if there was DNA was isolated in the exhibit. She denied the suggestion that under pressure, she had given the false and fabricated report Ex.PW24/A without examining the exhibit properly or that in spite of non-generation of any DNA profile from the exhibit, she gave wrong conclusion vide her report Ex.PW24/A.
37. PW 22 Dr. B.K. Mohapatra, SSO(Biology), CFSL, CBI, New Delhi deposed that on 28.06.2013, they received three sealed parcels in the present case. Parcel No. 1 contained small amount of powder material described as hip bone piece of the deceased child marked as Ex 1. Parcel No. 2 contained blood sample of Sh. Ranvir Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 Singh marked as Ex 2 and Parcel No. 3 contained blood sample of Mrs. Priya marked as Ex 3. He examined the exhibits and proved his report Ex.PW22/A. After examination, he found that Ex 1 (bone powder material) did not yield DNA for analysis. Hence, no comparison could be established.
STATEMENT OF ACCUSED
38. After completing the prosecution evidence, statement of both the accused was recorded under Section 313 Code of Criminal Procedure, 1973 in which the incriminating evidence/material was put to them to which they have denied. Both the accused stated that they are innocent and have been falsely implicated in this case.
DEFENCE EVIDENCE
39. Both the accused have not led evidence in their defence despite given opportunity.
40. I have heard the ld. Addl. PP and counsel for the accused and have perused the material available on record.
41. Case of the prosecution is that Initially, on 13.07.2012, DD no. 34-B Ex. PW6/A was recorded about missing of the child. On that basis, FIR Ex. PW6/B was registered. On 16.07.2012, PW9 raised suspicion against the accused no. 1 who was his tenant. The basis of the said suspicion was the information given by PW13 to PW19 that he had seen the child along with the accused no. 1 on 13.07.2012 at about 6.15 pm on a bicycle along with one more person. On 22.07.2012, JCL was apprehended and made the disclosure statement wherein he named the accused no. 1. Consequently, the accused no. 1 was arrested on 28.07.2012. That day, the accused no. 1 made the disclosure statement and named the accused no. 2. Accordingly, accused no. 2 was arrested on 28.07.2012 itself.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
42. Ld. Addl. PP pleaded that the accused no.1 was the tenant in the said house of PW9. Since, Ranbir Singh objected to the visit of the accused no.1 to the house of the accused no.2 and had also objected to the visit of JCL to his house to meet the accused no.1 and also scolded him, once he spitted tobacco on the staircase, the accused no.1 became inimical towards the accused no.1. Consequently, on or before 13.07.2012, both the accused along with JCL hatched a criminal conspiracy to kidnap and murder the child. In pursuance thereto, on 13.07.2012, at about 6.00 p.m., the accused no.1 along with JCL kidnapped the child from the said house and took him at Ganda Naala and committed murder of the child by strangulating him and threw the dead body of the child in the Ganda Naala. Subsequently, they caused the evidence of murder to disappear to save themselves from the legal action. Therefore, he prayed that both the accused may be held guilty for murder of the child.
43. On the contrary, counsels for both the accused pleaded that both the accused have been falsely implicated in the present case under the public pressure to work out the case. Therefore, they prayed that both the accused may be acquitted for the offence charged with.
LAST SEEN THEORY
44. Ld. Addl. PP pleaded that on 13.07.2012 at about 6.15 p.m., PW13 saw the child of PW9 in the lap of the accused no.1, who was sitting on the carrier of the bicycle belonging to PW20 and the same was being driven by JCL. That time, he thought that they took the child for a round. However, immediately thereafter, the accused no. 1 and JCL brought the child at the Ganda Naala and murdered him. Therefore, the last scene theory is applicable in the present case.
45. On the contrary, counsels for the accused pleaded that to prove last seen evidence, the prosecution examined PW13 who was the relative of PW9 and was residing Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 behind the house of PW9 in the same locality. PW13 knew that the child was missing boy on 13.07.2012 itself. According to the prosecution, PW13 informed the fact that he had lastly seen the child with the accused no. 1 and JCL to PW9 on 14.07.2012 and to the police on 16.07.2012. However, the prosecution has failed to explain the delay in making the statement by PW13. Hence, testimony of PW13 is not reliable in nature. Therefore, the last scene theory is not applicable in the present case.
46. Now the question arises as to when PW13 came to know the fact of missing of the child.
47. It is evident from the record that on 13.07.2012, DD No.34A Ex. PW6/A was lodged at 9.00 p.m. about missing of the child.
48. Ld. Addl. PP pleaded that on 14.07.2012, at about 6.30-7.00 p.m., PW13 came to know about missing of the child. Accordingly, he informed PW9 about the same. On 16.07.2012, PW13 along with PW9 visited the police station and gave the said information to the police.
49. It is evident from the testimony of PW9 and PW13 that PW13 was residing in a house situated just behind the house of PW9 in the same locality and they were known to each other much prior to the date of incident. They also used to visit the house of each other for the last 4-5 years prior to the date of incident. In view thereof, it can be held that PW9 and PW13 were very well known to each other being the local resident much prior to the date of incident.
50. According to PW13, he was in Delhi on 13-14.07.2012. PW20 in his cross- examination deposed that there was announcement in the locality regarding missing of the child. PW21 also deposed that he knew PW13 being the local resident and PW13 was also with him while searching the child since 13.07.2012. He also deposed Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 that he did not see PW13 searching the child on 13.07.2012 and on 14.07.2012 also, PW13 was not with them and explained that that was due to the reason that different teams were constituted to search the missing child. In view of the testimony of PW20 and PW21, it can be held that the announcement was made in the area about the missing child and different teams of different persons of the same locality were constituted to find out the missing child of which PW9, PW13 and PW21 were the members. Therefore, the testimony of PW13 that he came to know about the missing of the child on 14.07.2012 at 6.30-7.00 p.m. does not inspire confidence of this Court. Hence, it can be held that PW13 was aware of the missing child much prior to 6.30- 7.00 p.m. on 14.07.2012.
51. According to PW13, he met PW9 and informed him that he saw the child with the accused no. 1 and one more person on the bicycle, however, that time, PW9 did not believe the said information. On 15.07.2012, PW9 took over the mobile phones of the accused no.1, his father and JCL and thereafter, they ran away from the residence and did not return. That time, PW9 believed his version. Consequently, on 16.07.2012, he along with PW13 visited the police station and gave the information as stated by PW13.
52. To this effect, PW9 in his cross-examination deposed that in the evening of 14.07.2012, PW13 informed him the said fact. However, he did not go to the police station immediately but visited the police station with PW9 on 16.07.2012. On the contrary, PW9 in his cross-examination deposed that on 15.07.2012, he visited the police station with PW13 also.
53. Regarding the suspicion, PW9 in his examination-in-chief deposed that he had suspicion on the accused no.1 and JCL in the missing of his child as they used to talk on telephone on many occasions. He in his cross-examination deposed that he had suspicion on the accused no.1 because of his behaviour and conduct as he ran away Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 from the house, once, he took the mobile phones.
54. It is evident from the testimony of PW9 that the accused no.1 was his tenant and was residing in a room of his house. On 13.07.2012, the accused no.1 was in the said house. Not only that, father of the accused no.1 also came to the said house and visited PW9 after coming to know about the missing child. According to PW9, 2-3 days after the incident, he snatched the mobile phone of the accused no.1, his father and JCL. After 4-5 days of the missing child, the accused no.1 had gone for his work, but did not return thereafter. As such, according to PW9, the accused no.1 stayed in the said house till 17-18.07.2012. The said statement of PW9 is contradictory to his statement that the accused no. 1 ran away on 15.07.2012 when he snatched the mobile phones, he had no suspicion on the accused no.1, when he lodged the missing complaint of his child in the police station.
55. So far as seizure of the mobile phones are concerned, according to PW9, he snatched the mobile phones of the accused no.1, his father and JCL on 15.07.2012, but did not hand over the same to the IO on the same day and handed over to IO 3-4 days thereafter. PW23 in his cross-examination specifically deposed that the same were handed over to him on 17.09.2012 which were seized vide seizure memo Ex.PW9/A and in between, PW9 did not inform him about the same at any point of time. PW9 has failed to assign any reason for the delay in handing over the same, if they were seized on 15.07.2012. The said conduct of PW9 is suspicious in nature.
56. As evident from the testimony of PW13, the said information was given to the police on 16.07.2012. As such, despite the fact that both PW9 and PW13 had such a vital information with them in the evening of 14.07.2012, they did not give the same to the police till 16.07.2012. According to PW13, that time, PW9 did not believe his information, but believed upon the same on 15.07.2012, when PW9 snatched the mobile phones of the accused no.1, his father and JCL and ran away from the house.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 However, as discussed above, according to PW9, the accused no.1 had not run away from the house on 15.07.2012. So far as, the seizure of the mobile phones and handing over of the same to the police is concerned, as discussed above, there is material contradiction in the seizure of the said mobile phones by the police and, therefore, the same is not reliable in nature. Further, it is not the case of PW9 himself that he did not believe the said information that day, hence, the justification given by PW13 for delay in giving the information to the police is not reliable in nature. More so, PW9 had not acted against the accused no.1 despite having the said information in the evening of 14.07.2012 for a sufficient time and when he acted against the accused no.1 that too not as a reaction to the information given by PW13, but because of the fact that the accused no.1 had run away from the house since he had snatched his mobile phone, as alleged. It is highly improbable that PW9, father, having a vital clue about his missing child and the person behind the same, remained silent for a sufficient period and not only that, he allowed the accused no.1 and his father to stay in the house without any enquiry from him also. It is also improbable that PW13, who alleged to have the said information would delay in giving the same to the police.
57. As per record, PW19 was the first IO in this case till 19.07.2012, when further investigation of the case was handed over to PW23. PW23 in his testimony deposed that PW9 had not expressed the suspicion on anybody and he came to know that the child had been killed on 19.07.2012. He also deposed that PW19 tried to find out the missing boy, but had no clue till 19.07.2012. In view of the foregoing discussions, it can be held that the police was clueless about the child till 19.07.2012. However, the same is contrary to the case of the prosecution that on 16.07.2012, PW13 informed the police that he had seen the missing child with the accused no.1 on the bicycle in the evening of 13.07.2012.
58. In view of the foregoing discussions, it can be held that the prosecution has failed to prove the last seen theory in the present case.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 EXTRA JUDICIAL CONFESSION
59. Case of the prosecution is that PW20 knew JCL and his father as they used to work with him. On 13.07.2012, JCL along with one person (the accused no.1) visited PW20 and asked for his bicycle, which he gave. On 14.07.2012, JCL returned the bicycle to PW20. For next three days, he did not meet JCL. In the morning of 18.07.2012, JCL visited him and was seen scared and perplexed. On being asked, he made the extra judicial confession that he and the accused no.1 had taken the child on the bicycle, which they had taken from him, which was driven by him while the accused no.1 was sitting on the back with the child; after that, he took the child to Ganda Naala and he stood on the road near the Naala, while the accused no.1 took the child inside the Naala and came back alone, when he asked the accused no.1, as to what happened to the child, the accused no.1 replied that he had strangulated the child and threw his body inside the Naala. On 19.07.2012, PW20 visited the police station and informed the said fact to PW19 who recorded his statement to that effect. In view of thereof, Ld. Addl. PP pleaded that JCL made the extra-judicial confession to PW20.
60. Counsels for the accused pleaded that PW20 is a planted witness and no extra judicial confession was made by JCL to him.
61. According to PW20, before 18.07.2012, he was not aware about the missing of the child of PW9. It is evident from the testimony of PW20 that he was residing in the same locality where PW9 was residing and knew him. PW20 in his cross- examination deposed that he knew that the child was missing as there was announcement in the area to that effect. As such, it can be held that PW20 came know about the missing of the child not on the basis of the information given to him by JCL but because of the announcement made in the area. Therefore, it can also be held that PW20 being the local resident was aware about the missing of the child prior to Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 18.07.2012.
62. According to PW20, on 18.07.2012, JCL was scared and perplexed and when he noticed the same, he asked JCL and then JCL made the extra judicial confession. It is evident from the record that before 18.07.2012, the police did not make any enquiry from JCL nor raised any suspicion against him. PW13 also remained silent as to identity of JCL in his alleged statement dated 16.07.2012. Therefore, there was no reason for JCL to scare. Further, as evident from the testimony of PW20, JCL merely used to work with him that too not on regular basis. It is also not the case of PW20 that JCL was acquainted with him. Therefore, it is highly improbable that JCL would make such an extra judicial confession to him.
63. As evident from the testimony of PW20, he knew the father of JCL and PW9. According to him, he came to know about the said information in the morning of 18.07.2012. It is surprising that despite that, he did not tell the said fact either to PW9 or father of JCL on 18.07.2012. According to PW20, even on 19.07.2012, he did not inform the said fact to PW9, but had gone to the police station. In the given circumstances, when the whereabouts of the child were not known for almost six days and PW20 got such a vital information, then he failed to give any plausible explanation for keeping mum on 18.07.2012. Instead, in all probabilities, he must have shared the said information with PW9 and the police immediately.
64. In view of the foregoing discussions, the testimony of PW20 does not inspire confidence of this court. Therefore, it can be held that the prosecution has failed to prove that JCL made the extra-judicial confession to PW20 on 18.07.2012.
ARREST OF BOTH THE ACCUSED
65. According to the prosecution, on 28.07.2012, the accused no. 1 was arrested vide Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 arrest memo Ex. PW18/A.
66. On the contrary, counsel for the accused no. 1 pleaded that the accused no. 1 was illegally lifted on 22.07.2012 and was shown arrested on 28.07.2012.
67. PW18 deposed about the arrest of the accused and proved his arrest memo Ex. PW18/A perusal of which reveals that the accused no. 1 was arrested on 28.07.2012. However, PW21 who according to the prosecution joined the investigation and participated in the said arrest proceedings, deposed that on 23.07.2012, he was called at GTK Bypass where the accused no. 1 was arrested. Ld. APP has not examined PW21 to the effect that he wrongly mentioned the date 23.07.2012 instead of 28.07.2012. As such, there exists material contradiction in the date of arrest of the accused no. 1. Hence, an adverse inference can be drawn against the prosecution. Therefore, arrest of the accused no. 1 on 28.07.2012 is doubtful.
68. According to the prosecution, on 28.07.2012, the accused no. 2 was arrested vide arrest memo Ex. PW16/A. In cross-examination, PW23 denied a suggestion that on 28.07.2012, the accused no. 2 was forcibly taken from her house. As such, the arrest of accused no. 2 on 28.07.2012 stands proved.
CDR DATA
69. Counsel for the accused no. 2 pleaded that according to PW23, no evidence was there against the accused no. 2 till 28.07.2012 when the accused no. 1 made the disclosure statement. According to the prosecution, after kidnapping of the deceased, the accused no. 1 made a call from his mobile no. 7838263126 on the mobile number of accused no. 2 i.e. 9654062465 and informed that he was going to murder the deceased. However, PW23 in his cross-examination deposed that as per the CDR data filed along with the charge sheet, there was no talk between the above said two Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 phone numbers between 05:27:10 pm and midnight of 13.07.2012. As such, the accused no.2 is falsely implicated in the present case.
70. PW11 proved that the mobile phone numbers 7838263126 and 9654062465 were in the name of PW15. However, case of the prosecution is that the mobile phone number 7838263126 was being used by the accused no. 1 and the mobile phone no. 9654062465 was being used by the accused no. 2. If that is so, then, according to the prosecution, the accused no. 1 and JCL lifted the child at 6.30 pm on 13.07.2012; thereafter, the accused no. 1 informed the accused no. 2 about lifting of the child on the mobile phone and on that the accused no. 2 told him to kill the child and throw the dead body in the Naala; after that, they committed murder of the child; and after committing the murder, same day, the accused no. 1 again made a phone call to the accused no. 2 and informed that they had killed the child and had thrown the dead body in the Nala. However, PW23 in his cross examination, admitted that there was no talk between the mobile phone numbers 7838263126 and 9654062465 after 17:27:10 hours (i.e. 5.27.10 pm) till midnight of 13.07.2012. The fact is also proved for the CDR chart Ex. PW11/C. In view of the foregoing discussions, the prosecution has failed to prove the said fact.
RECOVERY
71. Case of the prosecution is that the accused no.1 made the disclosure statement Ex. PW18/C and in pursuance thereto, he got recovered one nicker, one T Shirt, one katta and bones from the Ganda Naala on 28.07.2012 and the said articles belonged to the child.
72. Counsel for the accused pleaded that the nicker, T Shirt and tagri and bones were planted to falsely implicate both the accused in the present case. Further, there exist material contradictions in the version of the prosecution witnesses as to recovery Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 proceedings. The nicker, T Shirt and tagri are also not produced in the court as case property. Hence, the alleged recovery is of no consequence
73. It is evident from the testimony of PW19 that on 19.07.2012, he came to know that the child had been killed once PW20 mentioned about the extra judicial confession made by JCL. As such, according to PW19, that day, he was aware of the place where the child was murdered and his dead body was thrown. Further, according to the prosecution, on 22.07.2012, JCL was arrested and made a disclosure statement that they i.e. he and the accused no. 1 had thrown the dead body in the Ganda Naala. On 28.07.2012, the accused no.1 was arrested and made a disclosure statement and on that basis, the recovery of the articles and the skeleton were made.
74. In view of the foregoing discussions, it can be held that prior to the disclosure statement of the accused no.1, PW19 and PW23 were aware of the place, where the accused no. 1 and JCL had thrown the dead body of the child after killing him. In other words, the place of recovery of the articles and the skeleton was well within the knowledge of PW19 and PW23 before the disclosure statement of the accused no.1. As such, vide disclosure statements of the accused no. 1, PW19 and PW23 had not discovered a new fact. Therefore, the recoveries shown on the basis of the disclosure statement of the accused no. 1 is not sufficient to link him with the offence.
75. Now, it is to be ascertained as to whether the recovery shown by the prosecution is reliable in nature.
76. First question arises whether PW9, PW12, PW17, PW20 and PW21, the public persons, were present at the spot at the time of recovery on 28.07.2012.
77. PW9 in his testimony deposed that on 28.07.2012, he reached at Ganda Naala and joined the recovery proceedings. PW20 has not mentioned about the presence of PW9 Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 at the place of recovery. It is evident from the testimony of PW12 and PW17 also that PW9 was not present at the place of recovery. PW18 also deposed that he did not notice PW9 and his wife at the place of recovery. PW21 in his cross-examination deposed that PW9 and his wife did not reach the place of recovery. PW23 also deposed that PW9 and his wife had not come to the place of recovery on 28.07.2012. In view of the foregoing discussions, it can be held that PW9 had not participated in the recovery proceedings.
78. PW20 deposed that he identified the accused no.1 at Ganda Naala when he came to know about the gathering of large number of persons over there. However, he admitted that the police had not recorded any statement to this effect nor prepared any document. As such, the presence of PW20 at the place of recovery and his identification of the accused no.1 is doubtful in nature.
79. According to PW21, PW23 called him at the place of recovery. Firstly, it is not explained as to why he was called because he was not the relative of either the boy or PW9. On the contrary, PW23 deposed that he had not intimated PW21. As such, the presence of PW21 at the place of recovery is doubtful.
80. Testimony of PW12 and PW17 reveals that they were related to PW9. According to the prosecution, both of them had witnessed the recovery made on 28.07.2012.
81. Now the question arises as to how PW12 and PW17 came to know about the recovery proceedings and how they reached at the place of recovery.
82. PW12 in his cross-examination deposed that on 28.07.2012, he was at his house and PW17 informed him that he had to go to the police station for identification of the body and from there, he had to go to the Ganda Naala. When he reached at the Ganda Naala, he met PW17. As such, according to PW12, he reached the place of Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 recovery at the instance of PW17 who met him there only. On the contrary, PW17 deposed that on 28.07.2012, once the police informed him that the dead body had been found, he along with PW12 reached there. When he got the information, he was present in the house of PW9 and that time, PW12 was also there. However, the said statement is contrary to the statement of PW12, where he stated that he was present at his house and met PW17 at the place of recovery only. Regarding the information, PW23 in his cross-examination deposed that the recovery witnesses came to the place of recovery on their own and the police did not call them at the spot. As such, there exists material contradictions relating to the knowledge of PW12 and PW17 about the recovery proceedings and the way they reached at the spot.
83. PW12 deposed that he was standing on the top side of the naala and place from where the recovery of the clothes and the katta was made, was inside the naala and therefore, he was witnessing the recovery from the distance, hence, he could not tell exactly whether the clothes were together or scattered or taken out from the katta. He deposed that he could only notice that there was a gadda and a stone from where the articles were recovered. He did not recollect if photographs were taken of the spot. He had seen the tagri and the bones for the first time in the police station. In reply to the court question, he stated that he did not see anything at the ganda naala. He was standing very far from the spot where the proceedings were taking place. PW17 was not with him at the place where he was standing and he did not know where PW17 was at that time. Police did not record his statement but only asked him to sign some documents in the police station regarding collection of bones etc. In fact, he in his testimony could not mention about the details of the recovered articles. PW12 also deposed that PW17 was not with him at the place where he was standing and he did not know where he was standing. The said fact is contrary to the statement of PW17. Therefore, it can be held the presence of PW12 and PW17 at Ganda Naala on 28.07.2012 is doubtful.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
84. Regarding the identification of the nicker, T Shirt and Tagdi recovered at the place of recovery, according to the prosecution, the same were got identified by PW17 vide memo Ex. PW17/A who identified being belonging to the child. According to PW17, he was residing at Burari, while PW9 was residing at Swaroop Nagar and he used to meet PW9 within 10-15 days. As discussed above, the knowledge of PW17 about the recovery proceedings and his presence at the place of recovery is doubtful. Further, the best person to get the recovered articles identified was PW9 and PW9 was available for the said purpose but at not the spot. However, that was not done by the prosecution. PW9 in his testimony deposed that he identified the said articles, however, that is contrary to the case of the prosecution. As such, the identification of the recovered articles as belonging to the child is doubtful.
85. According to PW23, the T Shirt, nicker and the plastic bag were not torn. PW9 in his testimony deposed that the said clothes were in torn condition. PW3 and PW21 deposed that the T shirt was torn. As such, there exists contradiction in the condition of the clothes, when they were recovered. Simultaneously, according to the prosecution, the nicker, T Shirt, tagri and bones recovered were handed over to PW9. The plastic bag is also not produced in the Court. As such, the case property i.e. nicker, T Shirt, tagri and the katta are not produced in the Court.
86. PW20 deposed that the bicycle on which the accused no.1 took the child was given to the police during the investigation. However, the said bicycle is also not produced as the case property in the Court.
87. Now the question arises as to when the prosecution came to know for the first time about the place of incident and the place where the dead body was thrown by the accused no1.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
88. In view of the foregoing discussions, it can be held that according to PW19, he came to know about the place of incident and the place, where the dead body was thrown on 19.07.2012. As deposed by PW19 and PW23 that from 19.07.2012 till 28.07.2012, they were regularly searching for the dead body of the child and also called the divers and used the boat for the said purpose but could not succeed. PW23 also deposed that they searched the area whereas, the articles and skeleton were lying in on the dry area on the bank, where there was long grass and the articles were hidden therein and they searched inside the water only. It is highly improbable that the investigating agency was aware of the place of incident and the place where the dead body was thrown and was making the vigorous efforts to locate the same, however, they simply searched inside the water and not in the vicinity and on 28.07.2012, all of a sudden, the articles were recovered from that place.
89. In view of the foregoing discussions, it can be held that either the investigating agency made no efforts to find out the dead body despite knowing the place of incident till 28.07.2012 or no recovery proceedings were conducted on 28.07.2012, however, the documentation was got done to show the same or the recovered articles were planted on 28.07.2012 and thereafter, its recovery was shown. Not the least, the nicker, T-shirt, Tagri and the plastic bag, though, stated to be recovered but not produced in the court as case property.
90. Further, PW23 in his cross-examination has brought into picture another theory that the accused no.1 disclosed that firstly, he thrown the dead body of the child in the Naala and thereafter, he again went to the place of occurrence on 16.07.2012 to ensure that the dead body had thrown from there or not, but he noticed that the body had struggled in the bushes. The accused no.1 did not dump the dead body on seeing the movement of several people. Hence, accordingly, he took out the same then let it dried and then kept in the plastic bag and thereafter, threw the plastic bag containing the dead body in the Ganda Naala and fled away.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
91. As deposed by PW23, the police booth was near the place of recovery. PW5 deposed that the distance between the police booth and point D and E of site plan Ex. PW 5/A through/ via the bridge was appropriately 80 meters.
92. According to the prosecution, on 16.07.2012, the accused no. 1 again visited the place of incident to know the status of the dead body of the child and found that it was stuck in bushes. It is highly improbable that the accused no. 1 would have visited the said place where the police booth was nearby and then took the dead body and let it dried, and then kept in the plastic bag. Further, it is nowhere the case of the prosecution that the accused no. 1 carried the plastic bag with him. Therefore, the prosecution has failed to explain from where the accused no. 1 got the plastic bag. Even that plastic bag is not produced as case property in the court.
93. In view of the foregoing discussions, it can be held that the recovery proceedings and recovery of the articles as alleged by the prosecution do not inspire confidence of this court.
MEDICAL AND FORENSIC EVIDENCE
94. Case of the prosecution is that skeleton recovered at the place of recovery was that of the child. To substantiate the same, the prosecution relied upon the testimony of PW8 who proved the post mortem report Ex. PW8/A wherein he opined that the skeleton was of human aged about 6 to 8 years male. Time since death around two to three weeks. However, no definite opinion regarding cause of death was possible due to advance stage of decomposition.
95. According to PW23, a hip bone found at the place of recovery was sealed and sent for DNA profiling was sent to FSL Rohini for DNA profiling on 14.08.2012. The blood sample of PW-9 and his wife was also taken and sent to FSL Rohini for Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 examination. PW-24 in his testimony deposed that on 14.08.2012, she received three sealed parcels for DNA examination. As such, the hip bone in sealed condition was sent to FSL Rohini for DNA examination on 14.08.2012.
96. Perusal of the record reveals that vide letter dated 31.05.2013 Ex. PW23/F, PW24 informed the SHO Swaroop Nagar that the result was not coming from the hip bone sample and requested to provide any other sample like molar tooth / femur bone. As per record, no such sample was provided by the said SHO to FSL Rohini, Delhi. According to PW24, in the meantime, the ld. predecessor of this court directed to furnish the report in time bound manner. In compliance of the said direction, PW24 prepared the report 05.06.2013 Ex. PW24/A and opined that DNA profile generated from the source of exhibit 1 (piece of bone) was not similar with DNA profile from the source of exhibit 2 (blood sample of Ranvir Singh) and exhibit No. 3 (blood sample of Priya).
97. Vide order dated 13.05.2014 passed by the Ld. Predecessor of this court, it was observed that the DNA report was in negative, therefore, exhumation of skeleton remains was directed and it was done. Accordingly, the prosecution was directed to send the sample for DNA examination.
98. Perusal of report dated 11.09.2013 Ex. PW22/A of CFSL CBI, Lodhi Road reveals that the sample (bone powder ) did not yield DNA for analysis, hence, no comparison could be established.
99. Vide report dated 14.07.2014 Ex. PZ1 Directorate of Forensic Science, Gandhi Nagar, Gujrat also failed to give the report on DNA profiling.
100. Vide report dated 24.07.2014 Ex. PZ from CFLS CBI, it was held that DNA could not be isolated, therefore, no comparison could be done.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
101. Vide report dated 12.09.2014 Ex. PW25/A Directorate of Forensic Science, Gandhi Nagar, Gujrat again opined that DNA examination was not possible.
102. In view of the foregoing discussions, it can be held that the skeleton sent for postmortem was of male aged between 6 and 8 years; and time since death was 2 to 3 weeks i.e. around 13.07.2012. No cause of death could be given. However, in the present case, the strict onus was on the prosecution to prove that the said skeleton was of the child. However, in view of the foregoing discussions, it can be held that the prosecution has failed to discharge the said onus and to prove beyond reasonable doubt that the said skeleton was of the child.
MOTIVE
103. Ld. Addl. PP pleaded that PW9 objected to the visit of the accused no.1 to the house of the accused no.2 to meet her who was residing in his neighbourhood and also scolded him. Once PW9 asked the accused no.1 to vacate the room let out to him. JCL used to visit the room of the accused no.1 and PW9 asked him not to visit so. On one occasion, when JCL visited the said house to meet the accused no.1, JCL spitted tobacco on the staircase and PW9 objected to that. For the abovementioned reasons, the accused no.1 was inimical towards PW9. As such, the accused no. 1 had the motive commit the offence charged with.
104. PW9 in his missing complaint recorded vide DD no. 34A Ex. PW6/A only mentioned about the missing child, but had not stated anything thereby raising the suspicion and motive against the accused no.1. PW9 in his examination in chief, though, deposed that he objected to the visit of the accused no.1 at the place of the accused no.2 and scolded him, and that he asked the accused no.1 to Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 vacate the house, due to which he got annoyed with him, but, he in his cross- examination deposed that he did not tell the said facts to the police. In examination in chief, PW9 remained completely silent that at one point of time, he scolded JCL for spitting tobacco on the staircase. Further, in his cross-examination, he deposed that it was not he, but his wife, who scolded JCL for spitting tobacco on the staircase and that had not stated the said fact to the police. As such, there exists material contradiction as to whether it was PW9 who scolded JCL for spitting tobacco or wife of PW9. More so, the said fact is also not mentioned to the police.
105. Further, the prosecution has failed to lead any evidence to prove there existed any illicit relationship between the accused no. 1 and 2.
106. In view of the foregoing discussions, it can be held that the prosecution has failed to prove the motive to commit the offence against the accused.
ROLE OF INVESTIGATING OFFICER
107. The role of the Investigating Officer (IO) is to conduct a fair investigation and place the material collected before the court to deliver justice. Now the question arises whether in the present case, IO has conducted the fair investigation?
108. In the present case, the following facts have been noticed:
(i) According to the prosecution, once on 16.07.2012, PW13 informed PW19 about having seen the child with the accused no. 1 on a bicycle with another boy, PW19 searched for the accused no. 1 but could not succeed. As held above, the accused no.
1 was present in the said house on 16.07.2012. Further, on 16.07.2012, PW19 made no inquiry to find out another person who was driving the bicycle. Even the said bicycle is not produced in the court.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
(ii) As held above, nothing was recovered till 28.07.2012, despite the fact that according to PW19 and PW23, they made all efforts to find out the dead body of the child as they came to know about the fact that the child had been killed and his dead body was thrown in the Nala on 19.07.2012. However, according to the prosecution, once accused no. 1 made the disclosure statement on 28.07.2012, the articles and bones were recovered from the same very place despite the fact that nothing could be recovered from the said area prior to that despite their best efforts. As held above, the justification given by PW19 & 23 is not justified. Not the least, the nicker, T-shirt, Tagri and the plastic bag, though, stated to be recovered but not produced in the court as case property.
(iii) PW23 admitted that no inquiry was made by him as to illicit relationship between the accused no. 1 and accused no. 2.
(iv) According to the prosecution, the accused no. 1 and JCL lifted the child at 6.30 pm on 13.07.2012; thereafter, the accused no. 1 informed the accused no. 2 about lifting of the child on the mobile phone and on that the accused no. 2 told him to kill the child and throw the dead body in the Naala; after that, they committed murder of the child; and after committing the murder, same day, the accused no. 1 again made a phone call to the accused no. 2 and informed that they had killed the child and had thrown the dead body in the Nala. However, as held above, PW23 admitted that there was no talk between the mobile phone numbers 7838263126 and 9654062465 after 17:27:10 hours (i.e. 5.27.10 pm) till midnight of 13.07.2012. The fact is also proved for the CDR chart Ex. PW11/C.
(v) On 31.05.2013, PW24 asked the concerned SHO/IO to produce more sample so that DNA examination could be done. However, no step was taken by the IO to this Page No.42 (Judgment) FIR No.125/12 PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42 effect. Vide report dated 05.06.2013, PW24 opined that DNA of the sample was not matching with the sample of PW9 and his wife. In her examination, the prosecution tried to build up a case that the said report was incorrect and was made in hurry. The prosecution has failed to explain if it was not satisfied with the said report, then why it did not take any action to this effect because exhumation of the skeleton was done with the order passed by the Ld. Predecessor of this court and not at the request of the prosecution.
(vi) As evident from the record, not a single document was prepared by PW19 and PW23 in their handwriting. SI Kali and HC Ashok who according to them prepared the documents were neither cited as a witness or examined in the court.
109. In view of the foregoing discussions, I am of the opinion that prosecution has failed to prove the charge leveled against both the accused beyond reasonable doubt. Therefore, both the accused is held not guilty for the offences charged with.
110. In view of the foregoing discussions, it can also be held that it is not a case of lacuna in the investigation on certain aspects. Rather, it is a case where there is no investigation on certain material aspects. Hence, it can be held that the investigating agency has not conducted the fair investigation and lacked in discharging his official duty fairly. Therefore, the Commissioner of Police, Delhi is directed to initiate an inquiry to find out the erring police officials and then take the Departmental Action against them and punish them accordingly.
111. Accordingly, both the accused are acquitted for the offence under Sections 120B and section 363/302/201/120B IPC.
112. Copy of this judgment be sent to Commissioner of Police, Delhi for information and necessary action as directed.
Page No.42 (Judgment) FIR No.125/12PS Swaroop Nagar State Vs. Ashish @ Nirmal etc. 42
113. File be consigned to Record Room.
Announced in the open court on this 4th day of March, 2017.
(Pankaj Gupta) ASJ-II, North-West Rohini: Delhi Page No.42