Delhi District Court
Case Of Raju vs The State, By Inspector Of Police, on 10 August, 2010
1
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO. 126/03
STATE
versus
SHAFI ALAM @ MUNNA
S/o SH. NASIR
R/o JHUGGI NO.C9C279,
BANGALI BASTI,
YAMUNA PUSHTA,
DELHI
FIR No. :48/03
Offence Under Section :302/34 IPC
Police Station : Kotwali
Date of committal:31.05.03
Date of taking up the matter for the first time: 23.05.09
Date of conclusion of arguments:04.08.10
Date of judgment:10.08.10
Counsel for State: Sh.IUH Siddiqui, Additional Public Prosecutor
Amicus curiae for Accused: Sh. Ajay Goel, Advocate
SC NO. 126/03 Page 1 of 73 pages
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JUDGMENT
1. Prosecution case is as follows. On the 27.01.03, at about 09:40am SI Naresh Kumar, Incharge police post Yamuna Pushta of PS Kotwali alongwith HC Padam Singh and Ct. Anil Kumar while on patrol duty in the area of Yamuna Pushta reached near Yamuna river behind Indira Colony jhuggies and found a crowd; that the Incharge Police Post Yamuna Pushta with his staff reached the spot namely Pehalwan Ka Khet and found about 2530 steps away from Yamuna river, dead body of a person aged 2021 years, wheatish complexion with deep cut injuries on neck revealing bones, besides multiple injuries on right hand and fingers; that the deceased was wearing red woolen jacket, brown jercy, cream inner Tshirt and cream pant with blue underwear but without any footwear; that towards right side of the dead body two old blue slippers, SC NO. 126/03 Page 2 of 73 pages 3 apparently of deceased were lying; that from the circumstances on the spot it appeared that an offence under Section 302 IPC had been committed so SI Naresh Kumar wrote a tehrir requesting the duty officer PS Kotwali to send crime team and photographer and convey information to senior officers and hand over the investigation to the Additional SHO; the tehrir describing the above facts was sent through Ct. Anil Kumar to the police station.
2. Upon registration of FIR on the receipt of tehrir, Inspector Satish Kain, the Additional SHO PS Kotwali reached the spot and met SI Naresh Kumar. Inspector Kain, the investigating officer (IO) inspected the spot and the dead body; got the spot inspected and photographed by the crime team; collected "no chance print" report from finger print expert; took help of dog squad also but no clue could be found. The IO got the dead body photographed SC NO. 126/03 Page 3 of 73 pages 4 through a private photographer and seized blood stained earth with earth control and slippers from the spot. The IO got the dead body lifted from the spot and tried to get the same identified from residents of the locality and got the message flashed through wireless to all the police authorities in India and SHOs in Delhi. Despite efforts neither the weapon of offence could be recovered nor the dead body could be identified so the dead body was kept in Subji Mandi Mortuary by the IO. Even from finger prints of the dead body, the same could not be identified from Finger Print Bureau records, so a hue and cry notice bearing photograph of the dead body was circulated and pasted in the area around the spot of recovery of the dead body, but to no avail. As such after getting the post mortem conducted, the dead body was got cremated by police through Waqf Board.
3. Thereafter on 16.02.03 one Fakruddin, Mohd. Javed SC NO. 126/03 Page 4 of 73 pages 5 and Mohd. Islam came to police post Yamuna Pushta and on the basis of hue and cry notice pasted outside the police post, they identified the deceased as Shahbaz @ Mintoo son of Islam.
4. During investigation, from statement of Islam it was revealed that the deceased was last seen with another boy namely Sajjo. But repeated efforts to trace out Sajjo failed. On 18.02.03 the IO proceeded to Bhagalpur in search of Sajjo, where ultimately Sajjo was traced out on 21.02.2003 and after serving on Sajjo notice under Section 160 CrPC to join investigation in Delhi, the police team alongwith the IO returned to Delhi.
5. On 24.02.03 post mortem report of the deceased was obtained and on the same day Sajjo appeared before the IO and was interrogated. Sajjo in his statement under Section 161 CrPC told the IO that he had left the deceased with Munna, the accused.
SC NO. 126/03 Page 5 of 73 pages 6
6. On 25.02.03 on the basis of secret information the IO alongwith Sajjo went to Bengali Basti, Yamuna Pusta and on the pointing out of Sajjo, accused was apprehended and arrested. At the instance of the accused, pant worn by him at the time of offence and one newspaper were recovered, which were seized by the IO.
7. On 26.02.03, the accused got recovered weapon of offence and the same was seized by the IO.
8. The IO obtained opinion of the doctor as regards weapon of offence and also sent the material exhibits for forensic analysis.
9. Despite efforts, police could not trace out co accused Raju and Langda. After concluding investigation, the IO filed chargesheet against the accused for offence under Section 302/34 IPC, stating that supplementary chargesheet would be filed as and when the co accused are arrested.
SC NO. 126/03 Page 6 of 73 pages 7
10. Upon committal of case, my learned predecessor framed charge for offence under Section 302/34 IPC, to which the accused pleaded not guilty and claimed trial.
11. In support of its case prosecution examined 24 witnesses, whereafter the entire evidence was put to the accused in his statement under Section 313 CrPC. The accused denied the truthfulness of prosecution evidence and pleaded that he has been falsely implicated at behest of Sajjo, who was the culprit but bribed the police to save himself; accused further stated that since his blind mother was being beaten up by SI Naresh Kumar and other police officers, under pressure he signed blank papers. In his defence accused examined his maternal uncle as his solitary witness.
12. I have heard Sh. IUH Siddiqui, Ld. Additional PP for the State and Sh. Ajay Goel, amicus curiae SC NO. 126/03 Page 7 of 73 pages 8 appointed on behalf of the accused and also perused the record.
13. A brief of the evidence brought on record is as follows.
14. PW1 Ct. Anil Kumar who was accompanying SI Naresh Kumar and HC Padam Singh on patrol duty on 27.01.03, narrated the circumstances related to the discovery of dead body near Yamuna river, delivery of rukka of SI Naresh Kumar to police station by him, his return to the spot after registration of FIR and efforts done to get the deceased identified as described above. PW1 further deposed that on 26.02.03 he joined investigation with the IO in which the accused was taken out of lockup and all of them went to the spot of occurrence; that on the spot, the accused dug out a long sharp edged weapon, which was converted into cloth parcel sealed with the seal of SK and seized vide memo Ex.PW1/A after preparing its SC NO. 126/03 Page 8 of 73 pages 9 sketch Ex.PW1/B. PW1 identified the weapon of offence, which is a knife found broken in two pieces, as Ex.P1. In his cross examination, PW1 stated that no public person from the crowd was asked to join investigation; that the knife was buried about 810 steps away from the dead body; and that at the time of recovery the knife was not in broken condition.
15. PW2 Ct. Ashok Kumar of Dog Squad, crime team deposed that on 27.01.03 he got the spot inspected through dog Nutty but no clue could be found.
16. PW3 Mohd. Faqruddin did not support prosecution and was declared hostile. PW3 deposed that Shehnshah, cousin of the deceased informed him about missing of the deceased from 26.01.03; that they searched for the deceased and after about 45 days he saw a poster Ex.PW3/A near the police post Jamuna Bazar and informed guardian of the deceased whereafter father of the SC NO. 126/03 Page 9 of 73 pages 10 deceased came to Delhi and accompanied him to police station where they identified the photograph Ex.PW3/B of the deceased and clothes of the deceased. PW3 identified one jacket, one sweater, one Tshirt, one pant and one underwear of the deceased as Ex.P1. On being declared hostile, in his cross examination by learned prosecutor, PW3 stated that he did not know the accused present in court.
17. PW4 Mohd. Islam deposed that the deceased was his son working at Seelampur in Delhi; that about 23 years ago he received a telephone call from Shehnshah that the deceased had been murdered, whereafter he came to Delhi and identified the poster and photograph of the deceased Ex.PW3/A&B and three other photographs Ex.PW4/A. PW4 also identified Ex.P1 clothes of the deceased.
18. PW5 ASI Ram Kumar proved the FIR as SC NO. 126/03 Page 10 of 73 pages 11 Ex.PW5/A, his endorsement on the rukka as Ex.PW5/B and DD No.14&15 regarding registration of FIR as Ex.PW5/C&D. PW5 also stated that copies of FIR were sent to senior officers.
19. PW6 ASI Bhagwan Das, member of the crime team deposed that he tried to search finger prints on the spot but failed, so issued his nil report Ex.PW6/A.
20. PW7 SI Om Prakash deposed having informed 21 police stations telephonically on 27.01.03 as regards recovery of the dead body in order to trace out any missing report. PW7 further deposed having gone to Bhagalpur on 03.03.03 upon assignment of investigation, in search of co accused Raju @ Sehmood and Ibrahim @ Langda, neither of whom were found there, so he came back to Delhi and handed over the file to IO.
21. PW8 Ct. Sanjeev Kumar deposed that on 30.01.03 he was deputed by the IO for safety of the dead SC NO. 126/03 Page 11 of 73 pages 12 body and on 01.02.03 he took the body out of cold room and got postmortem conducted on the same, whereafter the doctor handed over clothes of the deceased in a sealed pullanda alongwith blood sample of the deceased and a sample seal, which were seized vide memo Ex.PW8/A; that after postmortem he took the dead body to Waqf Board and got the body cremated.
22. PW9 SI Didar Singh of the crime team deposed having inspected the spot on 27.01.03 where no finger prints could be detected.
23. PW10 Jamal Ahmad deposed that the deceased was working in his stabilizer manufacturing factory prior to 26.01.03; that on 25.01.03 he paid an advance amount to the deceased in the evening but the deceased never returned; that one Shahnshah and 23 others from Bihar were also working in his factory; that about three days after 26.01.03 police officials came and showed them a SC NO. 126/03 Page 12 of 73 pages 13 photograph, which he identified to be of the deceased. PW10 also identified photographs Ex.PW3/A&B and Ex.PW4/A to be of the deceased. In his cross examination, PW10 stated that he did not have any records of his employees; that he had no license or any other documentary evidence as regards his alleged factory.
24. PW11 Mohd. Javed stated that as on 26.01.03 he was working in powder coating factory where the deceased also was employed; that on 26.01.03 at about 06:30pm the deceased alongwith his co worker Sajjo and the accused went out for a stroll; that Sajjo returned alone at about 10:00pm and asked him as to whether the deceased had returned, to which he replied in negative; that the deceased did not return next day also and Sajjo informed having arranged to call up family members of the deceased; that after four days father of the deceased came and they searched for the deceased but could not SC NO. 126/03 Page 13 of 73 pages 14 succeed, whereafter Sajjo accompanied father of the deceased to Bhagalpur, where in village Habibpur father of the deceased resided and in village Sarangi, Sajjo resided; that one or two weeks after missing of the deceased, one Raju co villager of Sajjo told him having seen photograph of the deceased on some jhuggi; that one Faqruddin, who is cousin of the deceased called up father of the deceased, who came two days thereafter; that he accompanied father of the deceased and Faqruddin to the jhuggi near Yamuna on which photograph of the deceased was found pasted; that thereafter he informed the police identifying the deceased; that he identified the deceased in photograph Ex.PW3/A. In his cross examination, PW11 stated that he had no documentary evidence as regards his occupation in the powder coating factory and he did not know even the address of the factory where he was employed at the relevant time. In cross examination PW11 was confronted SC NO. 126/03 Page 14 of 73 pages 15 with his previous statement Ex.PW11/DA where his having accompanied the relatives of the deceased to the jhuggi to see photograph of the deceased was not recorded. PW11 further stated that father of the deceased had lodged a missing report of the deceased but he did not have a copy of the same. PW11 stated that the deceased had accompanied Sajjo and the accused at about 05:00pm05:30pm; that he had never seen jhuggi of the accused as he did not know the accused prior to the occurrence.
25. PW12 HC Vinod deposed that on 26.02.03 he joined investigation in which the accused was taken out of lockup and was taken to the spot of recovery of dead body; that the accused led the police party near the place of occurrence and informed having concealed the knife under sand and on pointing out of accused knife was taken out of sand and after preparing sketch Ex.PW1/B thereof SC NO. 126/03 Page 15 of 73 pages 16 the knife was seized vide memo Ex.PW1/A. PW12 identified the two broken pieces of knife as Ex.P1 and stated that the knife was single piece at the time of recovery. In his cross examination, PW12 stated that knife was recovered from a spot about 810 steps away from the spot where dead body was recovered; that the place of recovery of knife is an open place accessible to public; that there was no specific indication to identify the exact spot where the knife was found embedded about 2feet below the surface; that despite availability, no public person was asked to join the recovery proceedings; that in order to take out the knife, the place was dug by him only.
26. PW13 ASI Shekhawat Khan deposed that on 24.04.03 he collected six sealed parcels from malkhana and deposited the same in FSL Malviya Nagar on the same day. In his cross examination, PW13 stated that he did not remember the description of seals and that no daily diary SC NO. 126/03 Page 16 of 73 pages 17 entry in this regard is on the record.
27. PW14 Ct.Ravinder of the crime team deposed that on 27.01.03 he was posted as photographer with crime team and took four photographs Ex.P1 to Ex.P4 with negatives Ex.P5 to Ex.P8 of the dead body, which were got developed subsequently as he had handed over the camera with unfinished film roll to the record clerk for being used in other cases.
28. PW15 Sh. Munshi Ram, a freelance photographer working under the name and style Yadav Photographer deposed that on 27.01.03 at the instance of police he took photographs Ex.P1 to Ex.P4 of the dead body, negatives whereof are Ex.P5 to Ex.P8. In his cross examination, PW15 stated that he did not notice any freshly dug out place on the spot.
29. PW16 Mohd. Sajjo deposed that he was residing in the factory premises and came to know the SC NO. 126/03 Page 17 of 73 pages 18 accused who used to visit his co villagers and worked in the same factory; that in the evening of 26.01.03 the accused came to his factory premises and told about one prostitute on which he asked the accused to take him to her but the accused told him that it would cost money; that since he had only Rs.50/ with him, the accused insisted that he should take along the deceased as well; that initially the deceased refused to accompany them, but on being assured that he (Sajjo) would pay, the deceased agreed and all of them reached Yamuna Pusta from Seelampur on a rickshaw; that they stayed for a minute or so in the jhuggi of the accused, whereafter the accused took them to Rajghat area and got introduced the prostitute; that he went with the prostitute at about 7:30pm to 8:00pm, leaving behind the accused and the deceased who assured him that they would wait; that when he returned within 10 minutes, nobody was there SC NO. 126/03 Page 18 of 73 pages 19 and after waiting for them for 1 or 2 minutes he returned to the house of accused; that the accused was not present in his jhuggi, so after waiting for the accused, he left jhuggi of the accused at about 8:30pm or 8:45pm; that he returned to the factory premises but was told by the other boys that the deceased had not returned; that on the next day (27.01.03), he again went to the jhuggi of the accused to enquire about the deceased but the accused was not present there and he returned to the factory; that on the next day (28.01.03) he again went to jhuggi of the accused but accused was not there and uncle of the accused expressed ignorance of whereabouts of the accused; that then he searched for the deceased, carrying with him photographs of the deceased to 23 police posts but could not trace the deceased; that thereafter the accused telephonically informed him that the deceased had taken a rickshaw and left on the same night, whereafter the SC NO. 126/03 Page 19 of 73 pages 20 accused did not know whereabouts of the deceased; that then he went to his native village as his mother was not well and in the village he came to know about murder of the deceased; that police reached his village, whereafter he returned to Delhi in the month of February 2003 and went to police station; that thereafter on the basis of secret information he accompanied the police and accused was arrested from Jama Masjid on being identified by him. PW16 was declared hostile by the prosecution and in his cross examination by the learned prosecutor PW16 denied having told the police in his statement mark A dated 25.02.03 that the accused was present in front of his jhuggi in Bengali Basti and was arrested at his instance; on being confronted with his previous statement PW16 explained that he had stated having gone to jhuggi of the accused with police but accused was not present there; PW16 further stated that it was night time and his face had been SC NO. 126/03 Page 20 of 73 pages 21 covered by police so he was not sure if the accused was arrested from Jama Masjid or from his jhuggi in Bengali Basti. PW16 specifically denied that in his presence the accused disclosed having committed murder of the deceased with the help of Raju and Langda on 26.01.03 at night near Yamuna river and having concealed the knife after digging the place in a nearby field. PW16 also denied having stated to the police that sister of Raju was married with maternal uncle of the deceased and she had been killed by her husband and in revenge the accused and Raju killed the deceased. On being cross examined by learned defence counsel, PW16 stated that he did not remember as to if the police had read over his statement to him; that he did not know Raju or Langda; that he did not know the name of the factory in which he was employed; that the accused had worked with him in that factory for a month or so; that it took half an hour to reach Yamuna pusta and SC NO. 126/03 Page 21 of 73 pages 22 10 minutes to reach Rajghat area from jhuggi of the accused; that they met the prostitute before 8:30pm and he had intercourse with her in a bush for about 10 minutes; that on the next day i.e. 27.01.03 he visited jhuggi of the accused after 11:00am alone for which he had orally taken leave from his employer; that he did not have any photograph of the deceased and he took the same from some co worker whose name he did not remember; that he knew Mohd. Fakruddin who was working in the same factory but did not know if Mohd. Fakruddin was a relative of the deceased, though he knew that Shahanshah working in the same factory was a relative of the deceased; that he had visited police station Seelam Pur and Welcome with photograph of the deceased on 27.01.03 or 28.01.03 alongwith one Shahnaz but police did not lodge his report informing him that the photograph shown by him was of a person who was in jail facing trial in a dacoity case and he SC NO. 126/03 Page 22 of 73 pages 23 did not approach any higher police officer or even owner of the factory; that he could not say as to whether he went to his village on 01.02.03 or 24/25.02.03 and he had no record to show illness of his mother and he did not remember even the illness suffered by her; that he did not receive any police notice in his village and he could not tell the date or even the week in the month of February 2003 when police came to their village; that police took him to Delhi from his village and kept him in police station for about 24 days without issuing any notice; that one child from the family of accused had informed the police about the presence of the accused in Jama Masjid area at late night; that he could not tell the distance between jhuggi of the accused and Jama Masjid; that police had taken his thumb mark on some papers in the police station and that the accused was not interrogated in his presence; that he did not know any Mohd. Faheem, Mohd. Firoz, Sheikh SC NO. 126/03 Page 23 of 73 pages 24 Alauddin, Bibi Malika, Bibi Khatoon, Rozi and Sarwari.
30. PW17 Ct. Saheb Singh deposed that on 07.04.03 he took the weapon of offence in a parcel sealed with the seal of SK and delivered the same to the doctor at Subzi Mandi Mortuary .
31. PW18 Inspector Naresh Kumar who was posted as Sub Inspector at the relevant time narrated the circumstances pertaining to recovery of dead body, sending of tehrir Ex. PW18/A by him followed by arrival of senior officers and crime team on the spot, preparation of siteplan at his instance by the IO, collection of material evidence from the spot and seizure thereof vide memos Ex. PW18/B&C and efforts done by way of message Ex. PW18/D for identification of the dead body as described above. PW18 further stated that on 01.02.03 he got the post mortem conducted at Subji Mandi Mortuary and in his presence the IO received clothes and kara of the deceased;
SC NO. 126/03 Page 24 of 73 pages 25 that on 16.02.03 the dead body was got identified from relatives of the deceased on the basis of clothes and photographs in police post Yamuna Pusta; that on 18.02.03 he accompanied the IO and police team to Bhagalpur Bihar and with the help of local police they reached village Shahjungi on 21.02.03 where they served notice under Section 160 CrPC on Sajjo and returned to Delhi on the night of 23.02.03 whereafter Sajjo came to Delhi on 24.02.03; that on 25.02.03 he accompanied the IO and police team to old iron bridge at about 5:40pm where Sajjo met and after about 10 minutes one secret informer came with the information about the accused going to his jhuggi, whereafter the police party alongwith Sajjo went to jhuggi of the accused and at the instance of Sajjo the accused was apprehended from a tea shop outside the jhuggi; that the accused gave disclosure statement Ex. PW18/E and after arrest vide memo Ex. PW18/F personal SC NO. 126/03 Page 25 of 73 pages 26 search of accused was taken vide memo Ex. PW18/G; that the accused got recovered from his jhuggi a newspaper which was seized vide memo Ex. PW18/H; pant worn by the accused was seized vide memo Ex. PW18/J and pointing out memo Ex. PW18/K was prepared; that on 24.04.03 at his instance Inspector Devender Kumar prepared scaled siteplan. PW18 identified clothes of the deceased as Ex. P1 and Ex. P1A, kara of the deceased as Ex.P2, newspaper got recovered by the accused as Ex. P3, pant of the accused as Ex. P4, pair of slippers seized from the spot as Ex.P5, blood stained earth as Ex.P6 and earth control as Ex. P7. In his cross examination PW18 stated that he did not remember number of the daily diary entry whereby he had proceeded for patrolling on 27.01.03 and stated having not recorded this number in his statement; that about 100 persons were present on the spot near the dead body when they reached and the spot is about 80100 SC NO. 126/03 Page 26 of 73 pages 27 meters away from residential area; that he did not interrogate owner of the field from where dead body was received, whose name also was not known to him; that no public person was asked to sign any of the memos prepared on the spot; that blood lying under the body was wet; that the siteplan prepared at 12:00 noon on the same day does not reflect any place of fresh digging or any place showing struggle marks; that he could not say if there was any documentary evidence of his having visited Bihar between 18.02.03 and 23.02.03 besides the case diary; that the distance between Jama Masjid and jhuggi of the accused is about 4 km; that Sajjo was present at the time of recording disclosure statement of the accused.
32. PW 19 Ct. Dhanush Kumar deposed that on 16.04.03 he collected from Subji Mandi Mortuary one sealed pullanda containing knife and deposited the same in malkhana.
SC NO. 126/03 Page 27 of 73 pages 28
33. PW20 HC Chander Pal who was posted as MHC(m) in PS Kotwali at the relevant time deposed that the IO deposited in malkhana two sealed pullandas on 27.01.03, one sealed pullanda with sample seal of Hospital on 01.02.03, one sealed pullanda each on 25.02.03 and 26.03.03, one sealed pullanda bearing seal of KLS with sample seal on 16.04.03 and that on directions of the IO he sent one sealed pullanda containing knife to Subji Mandi Mortuary on 07.04.03 and six sealed pullandas to FSL Malviya Nagar on 24.04.03, which were received back on 15.09.04 and the result was handed over to ASI Chanderpal on 25.09.04. PW20 proved the relevant entries of register no. 19 and 21 as Ex. PW20/AD. In his cross examination PW20 admitted that regarding taking out of any case property from malkhana to be produced in court no entries are made in register no.19.
34. PW21 Inspector Devender Singh Draftsman SC NO. 126/03 Page 28 of 73 pages 29 deposed that on 24.04.03 he visited the spot and on the basis of rough notes at the instance of SI Naresh Kumar prepared scaled siteplan Ex. PW21/A on 02.05.03.
35. PW22 Dr. K. Goyal CMO BJRM Hospital deposed having conducted post mortem on the dead body of the deceased on 01.02.03 and proved his post mortem report Ex. PW22/A. PW22 deposed that as per his opinion, time since death was 5 ½ - 6 days. PW22 also proved his opinion Ex. PW22/B to the effect that injuries no.1&2 mentioned in the post mortem report were possible from the weapon shown to him on 07.04.03.
36. PW23 Dr. Rajender Kumar of FSL Rohini proved biological and serological reports as Ex. PW23/A&B.
37. PW24 Inspector Satish Kain, IO of the case narrated the circumstances pertaining to assignment of investigation to him, his visit to the spot, arrival of crime SC NO. 126/03 Page 29 of 73 pages 30 team with photographer and dog squad, circumstances in which the dead body was kept, seizure of material evidence from the spot, efforts done to get the dead body identified as described above. PW24 also deposed that on 16.02.03 on the basis of hue and cry notice one Fakruddin and father of the deceased came to police post Yamuna Pusta and from belongings of the deceased, identified the deceased; that on 18.02.03 he went to Bhagalpur, Bihar with Inspector Naresh Kumar and gave notice to Sajjo for joining investigation in Delhi, whereafter on 24.02.03 Sajjo came to police post Yamuna Pushta and gave statement; that on 25.02.03 on the basis of secret information and at the instance of Sajjo they arrested the accused from accused's jhuggi and the accused got recovered a newspaper that carried news of a girl murdered in Patna by her in laws; that efforts were done to trace out the weapon of offence, but the same could not be done due to SC NO. 126/03 Page 30 of 73 pages 31 darkness so accused was sent to lockup; that siteplan Ex. PW24/A was prepared by him; that on 26.02.03 he alongwith police party took the accused out of lock up and reached the place of occurrence from where the accused got recovered the weapon of offence a knife after digging out place near the spot and the knife was seized after preparing its sketch; that despite taking police remand, co accused persons could not be traced out and proceedings under Section 82/83 CrPC were initiated against them, whereafter he filed chargesheet. In his cross examination, the IO PW24 stated that motive for murder in the present case was money; that he did not remember if investigation records pertaining to murder of sister of co accused Raju were brought on record of this case or not; that he did not meet Sajjo in Bhagalpur and except Shahanshah none else met him in Bhagalpur; that he only recorded statement of Sajjo and did not arrest Sajjo; that he did not remember as SC NO. 126/03 Page 31 of 73 pages 32 to how many and which documents were got signed by him from Sajjo; that at the time of recovery of newspaper at the instance of accused, none else was present; that on the night of 25.02.03 he had taken the accused to the spot of offence but due to darkness, weapon could not be recovered so they returned to the police station, but he did not remember if these facts were recorded in the chargesheet or not; that he did not join any public person in the proceeding since he was not certain that there would be a recovery; that the distance between the dead body and place of recovery of weapon was about 23ft.; that he could not tell the area in which dog squad was used; that he did not consider it necessary to look for finger print; that at the time of recovery, the knife was partly embedded under ground and the same was visible to all but he could not notice the knife at the time of recovery of dead body since the knife was hidden under a SC NO. 126/03 Page 32 of 73 pages 33 heap of mud and garbage; that at the time of recovery, the knife was blood stained; that at the time of arrest accused was standing outside his jhuggi and was identified by Sajjo; that he did not remember if he stated in the chargesheet that efforts were done to get the dead body identified.
38. No other evidence was brought by prosecution.
39. Accused, in his statement under Section 313 CrPC, denied the truthfulness of the prosecution evidence and pleaded that Sajjo, who was prime suspect in this case, bribed police and got him falsely implicated in this case.
40. In his defence, accused examined his maternal uncle as DW1, who stated that the accused used to reside with him; that on 25.02.03 at about 11:00pm police of Darya Ganj and Yamuna Pusta took his entire family to police booth of Yamuna Pusta alleging that they are Bangladeshis; that at about 2:30am police started beating SC NO. 126/03 Page 33 of 73 pages 34 up the accused as well as mother of the accused who tried to intervene and on account of beatings the accused gave up and signed some blank papers. In his cross examination, DW1 stated that he did not lodge any complaint against police.
41. No other evidence was brought.
42. During final arguments, learned Additional Public Prosecutor took me through the evidence on record and contended that prosecution has succeeded to prove their case beyond reasonable doubt. It was argued that prosecution has brought the circumstantial evidence with complete chain by establishing all the circumstances by way of cogent and reliable evidence. It was submitted by learned prosecutor that main aspects of this case proved beyond reasonable doubt are the evidence pertaining to last seen, evidence pertaining to recovery of weapon of offence and evidence pertaining to motive besides SC NO. 126/03 Page 34 of 73 pages 35 conduct of the accused who ran away after the incident.
43. Per contra, learned amicus curiae on behalf of accused took me through entire material on record pointing out numerous contradictions, inconsistencies and improbabilities in prosecution case. It was argued that prosecution has failed to prove any link in the chain of circumstantial evidence by way of reliable material. Learned amicus curiae argued that even if testimony as regards last seen is taken as it is, in view of wide gap between the time when the deceased was allegedly last seen with the accused and recovery of dead body, it cannot be said that accused and only the accused could be the perpetrator of this crime.
44. At the outset, it being a case based on circumstantial evidence, law relating to appreciation of evidence in such cases needs to be kept in mind. In the case of RAJU vs THE STATE, BY INSPECTOR OF POLICE, SC NO. 126/03 Page 35 of 73 pages 36 reported as 2009 III AD (Cr) (SC) 122, Hon'ble Supreme Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh vs. State of Rajasthan AIR 1977 SC 1063; Eradu and Ors. vs. State of Hyderabad AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka AIR 1983 SC 446; State of U.P. vs. Sukhbasi and Ors. AIR 1985 SC 1224; Balwinder Singh vs. State of Punjab AIR 1987 SC 350, Ashok Kumar Chatterjee vs. State of M.P. AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of SC NO. 126/03 Page 36 of 73 pages 37 Punjab AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. vs. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his SC NO. 126/03 Page 37 of 73 pages 38 innocence...."
9. In Padala Veera Reddy vs. State of A.P. And Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not SC NO. 126/03 Page 38 of 73 pages 39 only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. vs. Ashok Kumar Srivastava, (1992 Crl. LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal SC NO. 126/03 Page 39 of 73 pages 40 accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted.
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13.In Hanumant Govind Nargundkar and Anr. vs. State of Madhya Pradesh (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should SC NO. 126/03 Page 40 of 73 pages 41 be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashta, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on prosecution to prove that the chain is complete and the infirmity of lacuna SC NO. 126/03 Page 41 of 73 pages 42 in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved;
and
(5) there must be a chain of evidence so
SC NO. 126/03 Page 42 of 73 pages
43
complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan vs. Raja Ram (2003 (8) SCC 180), State of Haryana vs. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao vs. State of A.P. (Criminal Appeal No. 185/2005 disposed of on 7.7.2008) and Manivel and Ors. vs. State of Tamil Nadu (Criminal Appeal No. 473 of 2001 disposed of on 8.8.2008)."
45. In the case of GOKARAJU VENKATANARASA RAJU vs STATE OF ANDHRA PRADESH 1994 CAR 1, Hon'ble Supreme Court struck a note of caution that in cases depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. It was held that court has to be watchful and avoid the danger of allowing the suspicion SC NO. 126/03 Page 43 of 73 pages 44 to take place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof; at times it can be a case of "may be true"
and not "must be true" and the same divides conjectures from sure conclusions.
46. In the case of VARKEY JOSEPH vs STATE OF KERALA, 1993 CAR 264 SC Hon'ble Supreme Court emphasized the need to ensure that suspicion does not get substituted in the place of proof. It was observed that there is a long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove its case beyond all reasonable doubt.
47. Falling back to the present case, the circumstances, which as per prosecution, stand established against the accused are evidence pertaining to the deceased having been last seen in the company of accused; recovery of weapon of offence and clothes worn SC NO. 126/03 Page 44 of 73 pages 45 by the accused at the time of offence at the instance of the accused; and motive of the accused to kill the deceased.
48. What is to be seen is as to whether prosecution has been able to establish these circumstances against the accused cogently and firmly and whether the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and whether this chain shows that in all human probability, the act must have been done by the accused. What is to be seen is as to whether the prosecution has been able to cover the journey from "may be" through "could be" to "shall be" as reiterated by the Hon'ble Delhi High Court recently in the case of SUNDER @ LALA vs STATE, 160 (2009) DLT 701 DB.
49. So far as circumstance related to last seen is concerned, as held by the Hon'ble Supreme Court in the case of RAMREDDY RAJESH KHANNA REDDY vs STATE SC NO. 126/03 Page 45 of 73 pages 46 OF ANDHRA PRADESH 2006 III AD (SC) 425 and VENKATESAN vs STATE OF TAMIL NADU 2008 (3) CC Cases (SC) 332, last seen theory would come into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased found dead is so small that possibility of any person other than accused being the author of the crime becomes impossible.
50. In the case of STATE OF UP vs SATISH, 2005 (3) SCC 114, Hon'ble Supreme Court observed thus, "22. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in SC NO. 126/03 Page 46 of 73 pages 47 some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2."
51. In the case of JASWANT GIR vs STATE OF PUNJAB, 2006 (4) LRC 130 SC, the period of 5 hours between the deceased boarding the vehicle of the accused and discovery of the dead body was held to be a considerable time gap by the Hon'ble Supreme Court and SC NO. 126/03 Page 47 of 73 pages 48 it was held that in the absence of any other link in the chain of circumstantial evidence, it would be impossible to convict the accused solely on the basis of last seen evidence.
52. In the case of VENKATESAN vs STATE OF TAMIL NADU, 2008 (3) CC CASES SC 332 also, it was held that the last seen theory comes into play where the time gap between the point of time when the deceased and the accused were last seen alive and when the deceased was found dead is so small that possibility of any other person than the accused being the author of the crime becomes impossible.
53. Falling back to the present case, the last seen circumstance has been sought to be established by prosecution from testimony of PW11 Javed and PW16 Sajjo. PW11 Mohd. Javed deposed that on 26.01.03 at about 6:30pm the deceased went away alongwith the SC NO. 126/03 Page 48 of 73 pages 49 accused and Sajjo, whereafter Sajjo alone returned at about 10:00pm; PW16 Sajjo stated that at about 7:30pm to 8:00pm on 26.01.03 he left the deceased in the company of the accused while going with the prostitute, whereafter both the deceased and the accused were not seen by him; as per entire prosecution case, dead body of the deceased was recovered on 27.01.03 at about 9:40am. In other words, as per prosecution case also, the time gap between the time when the deceased was last seen in the company of the accused and the time when the dead body was recovered was more than 13 hours. What is to be seen is as to whether from the overall evidence on record, it can be said that this time period of thirteen hours is so small that possibility of any person other than the accused being author of the crime was impossible.
54. As regards the time of death, there is no specific evidence on record. PW18 Inspector Naresh Kumar who SC NO. 126/03 Page 49 of 73 pages 50 amongst the prosecution witnesses was the first person to see the dead body at 09:40am on 27.01.03 stated in his cross examination that blood under the dead body was wet. This would rule out a possibility of the deceased having been killed at about 08:00pm on 26.01.03 when as per Sajjo he left the deceased in the company of the accused.
55. Another vital evidence to arrive at approximate time of death of the deceased is postmortem report. As reflected from report Ex.PW22/A, postmortem was conducted at 12:00noon on 01.02.03 and as per opinion of the autopsy surgeon, death occurred about 5 ½ to 6 days ago. In other words, as per forensic opinion death of the deceased occurred at some time between noon of 26.01.03 and midnight of 26.01.03 & 27.01.03.
56. As described above, stand of the accused is that it is Sajjo PW16 who was the main suspect in this murder SC NO. 126/03 Page 50 of 73 pages 51 but greased palms of local police and the accused was made a scapegoat. As per overall prosecution evidence, the last moment when the deceased was seen alive is the moment when the deceased was in company of the accused as well as PW16 Sajjo. What is to be seen is as to whether prosecution has been able to bring any evidence to rule out a possibility that Sajjo could be the author of the crime.
57. Most important aspect is that neither the prostitute with whom Sajjo allegedly went has been examined nor any other evidence brought by prosecution that Sajjo had gone away leaving the deceased in company of the accused. There is nothing to corroborate statement of Sajjo in this regard.
58. Read in its entirety, testimony of Sajjo does not sound truthful. Accused came to be known to Sajjo only through co villagers of Sajjo including the deceased who SC NO. 126/03 Page 51 of 73 pages 52 resided with Sajjo in the same premises; upon his return from the prostitute, Sajjo having not found the deceased and the accused, his conduct of going first to the jhuggi of the accused and waiting there for half an hour instead of going straight to his factory premises where the deceased resided appears unnatural.
59. Further, conduct of Sajjo in not reporting the matter to police for two days despite non return of the deceased to the factory and accused being not traceable also appears unnatural.
60. Quite significantly, statement of Sajjo as regards his having searched with the deceased with photograph at 23 police posts on the second day i.e. 28.01.03 militates against the entire prosecution version as regards efforts done by PS Kotwali by way of circulating photographs as well as hue and cry notice in all the police stations for the purposes of identification of the dead SC NO. 126/03 Page 52 of 73 pages 53 body. Rather, in his cross examination Sajjo deposed that on 27.01.03 or 28.01.03 when he took photograph of the deceased to PS Welcome and Seelampur, the police officers told him that the photograph was of an under trial lodged in Tihar Jail. PW24 the IO Inspector Kain described that the dead body was kept at different locations in the area but for five days nobody came to identify the same. PW18 Inspector Naresh Kumar described various efforts done by police for getting the dead body identified including issuance of wireless messages throughout Delhi. As per prosecution case, till 16.02.03 the dead body remained unidentified. If Sajjo is taken to be truthful, it remains unexplained as to how the dead body remained unidentified till 16.02.03.
61. Further, as per Sajjo when he failed to trace out the deceased for two days after he lastly saw the deceased with the accused, on telephone the accused informed that SC NO. 126/03 Page 53 of 73 pages 54 on the same night i.e. 26.01.03 the deceased had taken a rickshaw and had gone away. Despite this telephonic information and his failure to trace out the deceased upon repeated efforts, Sajjo did not lodge any report with the police, which creates suspicion. And the suspicion gains further strength from the fact that at that stage Sajjo went away to his native village. Explanation given by Sajjo that he went to his village due to illness of his mother does not inspire confidence as not only that he failed to produce any medical record but also because he could not even disclose the said illness of his mother in cross examination; Sajjo could not even tell the period when he went to his native village and stated that he could not tell whether he went to his native village on 01.02.03 or 24/25.02.03.
62. As per PW24 the IO Inspector Kain as well as PW18 Inspector Naresh Kumar, on 16.02.03 the dead body SC NO. 126/03 Page 54 of 73 pages 55 was identified, whereafter a police party consisting of both of them went to Bhagalpur, Bihar on 18.02.03 and reached village Shahjangi on 21.02.03 and after serving notice under Section 160 CrPC on Sajjo who met them, the police team returned to Delhi on the night of 23.02.03. One wonders as to why statement of Sajjo was not recorded on 21.02.03 itself when the police party so painstakingly tracked him down, instead of directing Sajjo to come to Delhi for the purposes of investigations only. Significantly, Sajjo deposed that no notice was issued to him and rather it is the police who took him to Delhi and kept him in police station for about four days. These circumstances lend strong credence to the version of the accused that it is Sajjo who was the main suspect. It is also not prosecution case that initially Sajjo was a suspect but subsequently investigation revealed otherwise.
63. Further, testimony of Sajjo on many other vital SC NO. 126/03 Page 55 of 73 pages 56 aspects discussed hereafter is totally contrary to rest of the prosecution case.
64. Another vital aspect of last seen evidence is the place where the deceased as allegedly last seen in the company of the accused and the place where the dead body was recovered. Going by the testimony of Sajjo, the deceased was last seen with the accused at Rajghat while as per entire prosecution case, dead body of the deceased was recovered from a field behind Indira Colony jhuggies near Yamuna river. Prosecution has brought absolutely no evidence to show as to how and under what circumstances the deceased reached that field about 4 kilometer away from Rajghat. Nothing has been shown as to whether the deceased was first killed at Rajghat and dead body moved over a distance of 4 kilometer to the spot from where it was recovered or the deceased during his life time traveled over to the illfated field and got killed there. Even the SC NO. 126/03 Page 56 of 73 pages 57 owner or guard etc. of the field Pehlwan Ka Khet was not examined in this regard. The doctrine of last seen operates not just in terms of time but in terms of space as well. There is no evidence on record to show that anyone saw the deceased in company with the accused on the spot where the dead body was recovered or anywhere near the said place and a possibility cannot be ruled out that from Rajghat area after Sajjo went with the prostitute, if Sajjo is believed, the accused and the deceased parted ways in different directions.
65. Most recently, in the case of RAMPAL vs STATE, 2010 (3) JCC 1713, Hon'ble Delhi High Court observed thus:
"17...... As regards last seen, the version of PW17 Anil Kumar is that on the evening of 08.02.2004 at about 07:30pm when he was returning home, the deceased stopped his SC NO. 126/03 Page 57 of 73 pages 58 scooter near the gate of Shivaji Nagar and told him that he was going to Swatanter Nagar alongwith the appellant Rampal for collecting some payment. He also deposed that at the time, accused Dharamveer was sitting on the pillion of the scooter of the deceased and the appellant Rampal was on another scooter and thereafter his brother left for Swatanter Nagar and Rampal also followed him. Even if the above version of PW17 Anil Kumar is taken to be gospel truth, it only establishes that the deceased and the appellant Rampal proceeded from the gate of Shivaji Nagar in the direction of Swatanter Nagar on separate two wheeler scooter. There is no evidence on record to show that anyone saw them together at Swatanter Nagar or they both went SC NO. 126/03 Page 58 of 73 pages 59 to the same destination on their respective scooters. This evidence of PW17 Anil Kumar leaves much scope for imagination and speculation and a possibility cannot be ruled out that after proceeding from the gate of Shivaji Nagar, appellant Rampal and the deceased parted company and went in different directions. Thus, in our considered view, the last seen circumstance is not firmly established in this case."
(emphasis supplied).
66. So far as the other witness of last seen evidence PW11 Mohd. Javed is concerned, strictly speaking he is not a witness of last seen since as per him, the deceased went away alongwith the accused and Sajjo at 06:30pm. But even PW11 Mohd. Javed came up with a new version to the effect that Sajjo had informed him having arranged to call SC NO. 126/03 Page 59 of 73 pages 60 up family members of the deceased, four days whereafter father of the deceased came but they could not traceout the deceased so father of the deceased and Sajjo went to their native villages in Bhagalpur, Bihar. PW11 further stated that father of the deceased also had lodged a missing report about the deceased but he did not have copy thereof. None of these facts was deposed by father of the deceased in his testimony as PW4.
67. On the aspect of last seen circumstance, Learned prosecutor placed reliance on the judgment of Hon'ble Supreme Court in the case of HEMANT TRIVEDI vs STATE OF RAJASTHAN, 2008 (2) CRIMINAL COURT CASES 605 SC and argued that facts of that case were similar to the present case and in that case, the Hon'ble Supreme Court relied upon the last seen evidence to convict the accused. It was argued by learned prosecutor that in the judgment relied upon by him also the deceased SC NO. 126/03 Page 60 of 73 pages 61 was last seen alive in the company of the accused at night whereafter in the morning the accused was found alone getting ready to go to Bombay and Hon'ble Supreme Court found the evidence of last seen circumstance reliable.
68. But I do not agree with the prosecution on this count. For, facts of that case were totally different from facts of the present case. In the said case, as observed in para 13 of that judgment, the relevant witness deposed having seen the appellant with the deceased spending night of 05.06.98 together on terrace of the temple but on the next morning the deceased was not seen alive and appellant was found getting ready to go to Bombay; it further came up from evidence on record of that case that the accused was providing misleading information as regards whereabouts of the deceased, who was his wife. In contrast, in the present case the place where the deceased was last seen in the company of accused is far away from SC NO. 126/03 Page 61 of 73 pages 62 the place where the dead body of the deceased was found and also from the place where the accused was found after the murder. Further, in the judgment relied upon by prosecution, there was no evidence suggesting possibility of someone else being a primary suspect unlike the present case in which the witness of the last seen himself was a major suspect who was detained in the police station for four days after being brought to Delhi from his native village.
69. Thus, the last seen circumstance is not firmly established in this case.
70. Next circumstance which as per prosecution stands proved beyond reasonable doubt is the recovery of weapon of offence and clothes worn by the accused at the time of offence. But before coming to the evidence as regards the alleged recoveries, evidence as regards circumstances related to arrest of the accused are very SC NO. 126/03 Page 62 of 73 pages 63 important.
71. Arrest memo Ex.PW18/F of the accused bears thumb mark of Sajjo as a witness to the arrest. But version of arrest given by Sajjo is totally contrary to the version of arrest given by the investigating agency.
72. In his chief examination as PW16, Mohd. Sajjo stated that police received information that the accused was working somewhere near Jama Masjid, whereafter he alongwith the secret informer accompanied the police to Jama Masjid where on his identification the accused was arrested. This version being totally contrary to the entire prosecution case that the accused was arrested from a tea shop in front of his jhuggi in Bengali Basti, Yamuna Pusta, Sajjo was declared hostile by prosecution.
73. But even in his cross examination conducted by learned prosecutor, Sajjo stuck to his stand and denied having stated under Section 161 CrPC that the accused was SC NO. 126/03 Page 63 of 73 pages 64 arrested from front of his jhuggi in Bengali Basti. However, subsequently Sajjo came up with an explanation which is not just unbelievable but also beyond the entire prosecution case. And this explanation was that since it was night time and his face was covered by the police officers, he was not certain as to whether the accused was arrested from Jama Masjid area or from his jhuggi in Bengali Basti and he could not tell the distance between two places.
74. Another circumstance that creates suspicion over the manner of arrest is that as per Sajjo as well as the investigating officers, he came to Delhi on 24.02.03 and the accused was arrested as per arrest memo Ex. PW18/F on 25.02.03. Sajjo also stated that after being brought to Delhi he was kept in the police station for about 24 days. If Sajjo was a suspect as on 25.02.03, it remains unexplained as to why he would be joined in the arrest memo as a SC NO. 126/03 Page 64 of 73 pages 65 witness and even thereafter detained in the police station for another three days. Significantly, not just Sajjo, even the IO PW24 expressed ignorance about the nature of documents got signed from Sajjo. The IO PW24 was not even aware that Sajjo did not sign the documents but only thumb marked the same. Sajjo also stated that he did not remember if police read over his statement to him.
75. As held in the case of RAMPAL (supra), once the version of prosecution as regards arrest of the accused becomes doubtful, version as regards subsequent steps in the investigation as regards recoveries etc. also become doubtful.
76. Even as regards the evidence pertaining to recovery of weapon of offence, there are major contradictions in the statements of witnesses. PW1 Ct. Anil Kumar stated that it is the accused who dug out the knife from underneath the surface of the earth; PW12 HC SC NO. 126/03 Page 65 of 73 pages 66 Vinod stated that it is he who dug out the knife from 2 feet below earth surface on being pointed out by the accused; and PW24, the IO Inspector Satish Kain came up with a totally different version that at the time of recovery, the knife was partly embedded in ground and was visible to all.
77. It appears quite unbelievable that after committing murder in such a gruesome manner the accused would conceal the knife near the dead body itself. It is nobody's case that accused just threw away the knife after committing murder there itself; case of prosecution is that the accused dug the earth for about 2ft to conceal the knife. Such an accused would not normally dig the place near the dead body as the same would be an identifiable spot. PW15 photographer categorically stated having not noticed any freshly dug out place on the spot on 27.01.03. Even the dog squad could not sniff out the knife on SC NO. 126/03 Page 66 of 73 pages 67 27.01.03 itself. Going by the testimony of the IO, if the knife was partly embedded it remains unbelievable that dog squad would not have detected the same.
78. As admitted by the IO PW24 on the night of 25.02.03 also he went to the spot of occurrence but weapon of offence could not be recovered due to darkness and on the next day he did not join any independent witness as he was not certain that there would be a recovery.
79. Most importantly, as per the serological report Ex. PW23/B no reaction for ABO blood grouping was found on the weapon of offence and consequently there is no evidence to connect the knife allegedly recovered at the instance of the accused with the murder of the deceased. Admittedly, no efforts were done to find out finger prints on the weapon of offence upon recovery thereof. For that matter, as per FSL report Ex. PW23/A also no blood was SC NO. 126/03 Page 67 of 73 pages 68 detected on the pant of the accused.
80. As held in the case of STATE (DELHI ADMINISTRATION) vs SHAHID MIAN, I (2010) DLT (Crl) 146, where the serological report failed to reveal the blood grouping on the alleged weapon of offence, the same is failure to link the weapon recovered at the instance of the accused with the alleged offence.
81. So far as pant of the accused is concerned, as held by the Hon'ble Delhi High Court in the case of RAJ KUMAR @ RAJU vs STATE, 169 (2010) DLT 517 DB, independent evidence had to be led to prove that the said pant was worn by the accused at the time when murder was committed. But no such independent evidence has been brought.
82. Besides, as held in the case of JAHID vs STATE, 2009(3) JCC 1760 and KALLOO PASSI vs STATE, 2009 (2) JCC 1206 by Hon'ble Delhi High Court, without there SC NO. 126/03 Page 68 of 73 pages 69 being any other circumstance, recovery of weapons of offence and blood stained clothes at the instance of accused does not lead to a conclusion that accused is the perpetrator of the crime. For, the solitary circumstance of recovery of blood stained clothes and weapon is not a circumstance inconsistent with the innocence of accused since it cannot be ruled out that someone else committed the murder and kept blood stained articles in the house of accused, as observed by Hon'ble Delhi High Court.
83. Hence, evidence as regards the alleged recoveries also fails to inspire confidence.
84. The last circumstance relied upon by prosecution is motive. As per prosecution, motive in this case was to take revenge of murder of sister of co accused Raju @ Sammud who had been killed by her husband, who in turn was the maternal uncle of the deceased. In other words, maternal uncle of the deceased killed his wife who SC NO. 126/03 Page 69 of 73 pages 70 was sister of co accused Raju and the accused persons in revenge killed the deceased. This motive does not appear to be strong enough for a person to kill someone. Most significantly, the IO PW24 Inspector Satish Kain was apparently not even aware about statements of different witnesses and stated in his cross examination that motive of murder in present case was money.
85. Even as regards this feeble motive no reliable evidence was brought by prosecution. Absolutely no evidence was led to show that the killed lady named in the newspaper Ex.P3 was in any manner related with the accused or even the co accused Raju. The newspaper Ex.P3 reflects name of the killed lady as Rozy while names of killers as Mohd. Faheem, Mohd. Firoz, Sheikh Alauddin, Bibi Mallika and Bibi Khatoon. But the star witness Sajjo of prosecution in his cross examination stated that he did not know any of these persons.
SC NO. 126/03 Page 70 of 73 pages 71
86. Rather, the star witness Sajjo in his cross examination by learned prosecutor categorically denied having told the police in his statement under Section 161 CrPC that sister of Raju was married with maternal uncle of the deceased and was murdered by her husband, so to take revenge, the deceased was killed.
87. In his cross examination, PW24 the IO Inspector Satish Kain stated that at the time of recovery of newspaper Ex.P3 at the instance of accused, none else was present. It remains unexplained as to why Sajjo at whose instance the accused was arrested on 25.02.03 outside jhuggi of the accused was not joined in the proceedings for recovery of newspaper that was done immediately after the arrest as alleged by prosecution. This creates strong suspicion as regards genuineness of the recovery of newspaper Ex.P3.
88. As such, evidence related to motive also does SC NO. 126/03 Page 71 of 73 pages 72 not inspire confidence.
89. Prosecution has failed to establish not just a complete chain of circumstances, even the circumstances tried to be established could not be cogently and firmly so established by the prosecution. It is indeed sad that such a gruesome murder is going unpunished. But as described above, courts have to be phlegm to emotions while deciding whether prosecution has been able to walk through the distance between "may be true" and "must be true". Prosecution has failed to prove beyond reasonable doubt that accused committed murder of the deceased Shahbaz @ Mintoo and consequently the accused is held not guilty of charge framed against him and is acquitted. Bail bond is canceled and surety is discharged.
90. I must also record appreciation for the effective assistance rendered by the learned amicus curiae Sh. Ajay Goel, Advocate, whose fee is fixed as Rs.10,000/. As SC NO. 126/03 Page 72 of 73 pages 73 requested, an attested copy of this judgment be given to learned amicus curiae for his records.
91. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 10th AUGUST 2010 (GIRISH KATHPALIA) SPECIAL JUDGE, NDPS(NORTH) DELHI SC NO. 126/03 Page 73 of 73 pages