Delhi District Court
State vs . 1. Ashok Nagar on 21 December, 2019
IN THE COURT OF SH. JAGDISH KUMAR , ADDITIONAL SESSIONS JUDGE-04 (SHAHDARA) , DELHI. ID No.285-2016 Sessions Case No. 60/18 Assigned to Sessions on 06.08.2018 FIR No. 192/2013 Police Station Vivek Vihar Under Section 302/364/120-B r/w 201 IPC and 25/27 of Arms Act Charged under section 302/364/120-B r/w 201 IPC and 25/27 of Arms Act State Vs. 1. Ashok Nagar S/O Ranveer Singh R/O C-44, Gali No.4, Jain Wali Gali, Harsh Vihar, Sahibabad Ghziabad, U.P. 2. Vipin Sharma S/O Sh Jai Kishan Sharma R/O Seesham Wali Gali,Harsh Vihar-II, Sahibabad Ghziabad, U.P. Arguments heard on 16.12.2019 Date of Judgment 21.12.2019 Final Order Acquitted Appearance(s) : Sh. Rakesh Mehta , Ld. Addl. PP, for the State. Sh. G.S. Sharma Ld Counsel for both the accused persons. JUDGMENT
PRELUDE
1. The case pertaining to the charge sheet filed u/s 173(2) Cr.P.C, in respect of FIR No.192/2013 U/s 302/364 IPC of PS Vivek Vihar, Delhi. The charge sheet was committed to Page 1 of 42 the Ld. Sessions Judge (Shahdara), vide order dated 19.09.2013 of the Ld. CMM, and the accused person were also sent to face the trial for the offence u/s 302/364 IPC.
BRIEF FACTS
2. The investigation of the case was started after receiving of the DD No.26 dated 17.03.2013, on the information of Sh Kuldeep S/O Sh Dal Chand to the effect that dead body of a male aged about 25 years was lying in the pond of Koyal Enclave having burnt injury marks on the back and head of the dead body. On this information HCP Raj Kumar Rana, Ct Brijmohan and Constable Harish Chander reached at Pond near Koyal Enclave and found a dead body lying near the corner of pond. There was burnt injury marks on the back and head of the dead body. The Blood was lying there at a distance of 50 meter. The Panchnama of the dead body was prepared by SI Raj Kumar in the presence of witnesses. The Dead body was taken to District Mortuary Ghaziabad U.P for post mortem examination. On the same day, photograph of dead body of deceased was identified by the complainant Charan Singh as of his son Anil.
3. On 18.03.2013, a written complaint was filed by Charan Singh and made allegations against accused Ashok Kumar. He has stated deceased Anil has given Rs.03 lakh, on interest to accused Ashok Kumar and accused Ashok Page 2 of 42 Kumar was refusing to return the money to deceased. He has stated that deceased had gone to the house of accused Ashok Kumar bearing No.C-44, Gali No.4 Jainwali Gali, Harsh Vihar-II Sahibabad U.P.
4. During investigation it was revealed that accused Ashok Kumar alongwith his co-accused Vipin Sharma had had hatched a criminal conspiracy to murder the deceased and they kidnapped/ abducted the deceased Anil and committed his murder , burnt his body and threw the dead body at Harsh Vihar pond, Koyal Enclave, Ghaziabad. During the course of investigation statement of witnesses were recorded. Both the accused were arrested. Documents were collected and finding sufficient evidences available on the file, a challan U/S 173 Cr P C was filed before the Ld. MM for the offence under section U/S 364/302/201/120-B/34 IPC and 25, 27 of Arms Act against both accused persons .
THE CHARGE
5. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP for the State and Ld Counsel for the accused person, found a prima facie case for the offence punishable under section 364/302/120-B r/w 201 IPC and 25/27 of Arms Act against the accused persons. The Charges were framed Page 3 of 42 accordingly vide order dt.05.03.2014, to which both the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined 40 witnesses. The PW1 Charan Singh, PW 2 Sunita PW10 Sh Kamrus Saqid, PW11 Sh Kuldeep, PW12 Smt Premwati, PW 13 Sh Deepak Jener, PW14 Sh Ajeet , PW22 Sh Arvind, PW27 Karan Sharma are the public witnesses, while other witnesses are either police officials or medical/ experts witnesses who have participated during the course of investigation.
7. PW 1 Sh Charan Sinngh,the complainant, has deposed that on 16.03.2013 his son Anil had gone to his duty and did not return to home. He made a call to his son at about 8.30 pm on his mobile number 8860098480 and 8750334927 but there was no response and was found to be switch off. He has deposed that on 17.03.2013 at about 10-11 A.M he went to PS Khajuri Khas to lodged the missing report. He has deposed that in his absence accused Ashok entered in the room of deceased and torn 3-4 pages from his diary containing day to day expenses of his son.
8. He has further deposed that accused Ashok had also made a mobile phone call to the elder son of this witness and Page 4 of 42 told him that dead body of the deceased was lying in pond in front of his house in the area of Harsh Vihar,Ghaziabad UP. He has deposed that on 18.03.2013 he alongwith his relatives went to District Hospital Ghaziabad U.P and identified the dead body of his son, which was handed over to him after post martem. He has made a complaint Ex PW1/A against accused Ashok and his associate.
9. He has deposed that on 28.04.2013 police of PS Vivek Vihar took him to the place where dead body of his deceased son was recovered and police prepared site plan. This witness has also accompanied Crime Team to the place of recovery of dead body and in his presence police seized dry blood at a distance of 8-10 mts from the pound from where the dead body was lying. He has deposed that on 29.04.2013 he alongwith IO and staff of FSL visited the place from where the dead body of deceased was recovered and from where the FSL team collected blood stained soil and earth control from a distance of about 30- 32 meters from the place of recovery of dead body. The same was kept in two separate container which were converted into cloth parcel and sealed with the seal of SS and taken into possession vide seizure memo Ex PW1/B.
10. He has deposed that on 20.05.2013 accused Ashok Kumar was apprehended and arrested in his presence vide memo Ex PW1/C and his personal search was taken vide Page 5 of 42 memo Ex PW1/C-1 and his disclosure statement was recorded vide Ex PW1/C-2. On that day, at about 4.00 pm. On the pointing out of accused Ashok,accused Vipin was apprehended and arrested vide arrest memo Ex PW1/D, his personal search was conducted vide memo Ex PW1/D-1 and his disclosure statement was recorded vide Ex PW1/D-
2.
11. He has further deposed that both the accused led the IO and this witness at the house of accused Vipin at Seesam Wali Gali Phase II Harsh Vihar, Ghaziabad where accused Vipin took them in a room of his house at ground floor and from the corner of the bed kept in the room, he took out a pistol alongwith one live cartridge kept in a yellow coloured polythene. He has deposed that accused Vipin took out a mobile phone having Reliance sim card, which was used at the time of commission of the offence. The sketch of the pistol and the cartridge were prepared vide Ex PW1/E. The pistol, cartridge as well as mobile were kept in a cloth parcel separately and sealed with the seal of SS, the same were taken into possession vide memo Ex PW1/F and PW1/G.
12. He has further deposed that on 15.05.2013, this witness has produced a diary Ex PW1/Article1 of brown colour which was used by the deceased for upkeeping his estimate. He has deposed that on 21.05.2013 both the Page 6 of 42 accused led the police to ESI hospital, Jhilmil. Vivek Vihar, Delhi and pointed out the place from where they had taken deceased Anil with them vide pointing out memo Ex PW1/J. They also pointed out the place of commission of murder of deceased Anil vide pointing out memo Ex PW1/J-1. He has further deposed that they also led the police party to main road, Bhopura Chowk road which lead from Bhopura to Tila and from the bushes after digging out some sand accused Ashok got recovered two shell and a purse belonging to deceased which contains visiting card and photograph of deceased and on which the name of deceased was written as "Anil Jener" and one I card of BA Programme Open School of Learning. The purse was taken into possession vide seizure memo Ex PW1/K and two empty shells which were sealed with the seal of SS and were taken into possession vide seizure memo Ex PW1/K-1.
13. He has further deposed that both the accused led to the house of accused Ashok and accused Ashok took out one shirt from the Almirah, which was made in the wall itself, which he had worn at the time of commission of murder of deceased Anil which was later on washed by him. He has depose that accused Ashok also took out mobile of TATA Samsung which was broken from behind and was not having battery and sim. The parcel of shirt was taken into possession vide seizure memo Ex PW1/K-2 and the mobile was taken into possession vide memo Ex Page 7 of 42 PW1/K-3.
14.He has further deposed that on 29.07.2013, he alongwith his wife Sunita were taken to FSL for DNA purpose and his statement was recorded. He has identified one pistol and one cartridge Ex P.4 (Colly), mobile phone Ex P.5( which belongs to accused Vipin), black colour make Samsung TATA without battery and sim Ex P-3, black colour purse containing I card of deceased and visiting cards Ex P-2, one black pant with belt, one white shirt, one sky blue colour underwear, one pair socks, one white gauze cloths as Ex P1/Art.2, shirt Ex PW 1/Art.3, blood stained dry earth material Ex PW1/Article -4, earth control material Ex PW1/Article-4, photograph of motor cycle No DL 5S BJ-4426 as Ex PW1/Art.5.
15. PW 2 Smt Sunita, mother of the deceased, has deposed that accused Ashok came to her house and started searching almirahs, drawer for some document in the room of deceased. She has deposed that accused Ashok torn three/ four pages from the diary of deceased which was being used by deceased for his estimate.
16.PW3 Dr Mahender Singh has conducted Post mortem on the dead body of deceased vide Ex PW3/A. He has opined the cause of death was coma and shock and hemorrhage as a result of ante- mortem injuries.
Page 8 of 4217. PW4 Sh R.K. Singh is Nodal Officer of Bharti Airtel Ltd who has proved the record ie CAF, CDR and Cell ID Chart pertaining to mobile No.9717360337 for the period 01.03.2013 to 20.03.2013 issued in the name of Charan Singh S/O Horam vide Ex PW4/A, PW4/B and PW4/C. He has also proved certificate U/S 65-B of Indian Evidence Act vide Ex PW4/D.
18. PW5 Sh Israr Babu, Nodal Officer, Vodafone Mobile Services Ltd has proved the record ie CAF, CDR Cell ID Chart and Election ID pertaining to mobile No.8860098480 for the period 01.03.2013 to 20.03.2013 issued in the name of Anil Jener S/O Charan Singh vide Ex PW5/A, PW5/B, PW5/C and PW5/D. He has also proved certificate U/S 65-B of Indian Evidence Act vide Ex PW5/E.
19. PW 6 Sh Rajeev Sharda, Nodal Officer, Reliance Communication Ltd that he has proved the record ie CAF, CDR Cell ID Chart and Election ID of mobile No.9015819370 for the period 01.03.2013 to 20.03.2013 issued in the name of Vipin Kumar S/O Sh Jai Kishan vide Ex PW6/A, PW6/B, PW6/B-1 to B-11. He has also proved certificate U/S 65-B of Indian Evidence Act vide Ex PW6/C.
20. PW7 Sh Pawan Singh , Nodal Officer, Idea Cellular Page 9 of 42 has proved the record ie CAF, CDR Cell ID Chart and Election ID of mobile No.8750334927 for the period 01.03.2013 to 20.03.2013 issued in the name of Anil Jener S/O Charan Singh vide Ex PW7/A, PW7/B, PW7/C and Ex PW7/D. He has also proved certificate U/S 65-B of Indian Evidence Act vide Ex PW7/E.
21.PW8 Sh Rajeev Ranjan , Nodal Officer, TATA Tele Services Ltd that he has proved the record ie CAF, CDR Cell ID Chart and Election ID of mobile No.9250811037 for the period 01.03.2013 to 20.03.2013 issued in the name of Arvind Sih S/O Sh Ranveer Sih vide Ex PW8/A, PW8/B, PW8/C and Ex PW8/D. He has also proved certificate U/S 65-B of Indian Evidence Act vide Ex PW8/E.
22.PW9 W/HC Dayawati, Duty Officer, who has recorded FIR in this case. She has proved the copy of FIR ExPW9/A and her endorsement on the ruqqa Ex PW9/B.
23. PW10 Sh Kamrus Saqib @ Kamruddin that on 03/04.03.2013 his mother was admitted in ESI hospital and deceased Anil used to help in the treatment of his mother.
24. He has further deposed that on 16.03.2013 he alongwith deceased Anil had taken his mother to Shanti Mukund Hospital for PET (CT) test at about 2.00 PM. At about 4.30 pm Anil made a telephonic call by his mobile to Page 10 of 42 someone for demanding money. There were some hot talk during the conversation and Anil demanded money from the person with whom he was talking. On inquiry by this witness Anil told him that he was talking to his cousin Ashok and informed that Ashok would come to ESI Hospital to take him at about 6.00 pm. He has further deposed that when he alongwith Anil took his mother to ESI hospital. They were waiting for accused Ashok in the parking of ESI Hospital. After some time accused Ashok came there on a black splender motorcycle and some other person was driving the motor cycle. Accused Ashok shook hand with them. Anil sat down on the motorcycle between the driver and accused Ashok and told this witness that he was going with them at the house of Ashok in Harsh Vihar U.P to take the money and would come to his house after taking money. They left from there. In the night this witness tried to contact Anil (deceased) through mobile but his mobile was found switched off.
25. He has further deposed that on 17.03.2013 he came to know that the dead body of Anil was found in a pond near the house of accused Ashok and there were bullet injury on the body of deceased.
26. PW 11 Sh Kuldeep has deposed that he was selling namkeen, biscuit, bidi, cigarette etc on a rehri and on Page 11 of 42 17.03.2013 at about 9.30-10.00 a.m 4-5 boys who were playing cricket in Koyal Enclave found a dead body of male person in the bond and they informed him about the same. Many persons also gathered there. He informed the police by his mobile No.9210500093.
27. He has further deposed that the police from PS Sahibabad UP had come and the dead body was taken out from the said pond. He has deposed that he had noticed burnt injury marks on the back and head of the dead body. Blood was lying there. A Panchnama was prepared by the police official of Shahibabad Ex PW11/A.
28. PW 12 Smt Prem Wati has deposed that on 17.03.2013 she came to know that Anil was missing and she had gone to the house of her neighbour. Accused Ashok was also present there while Charan Singh alongwith his relatives had gone to PS Khajuri Khas in search of his son. Accused Ashok had torn pages from a diary kept there and taken the same with him. She had informed this fact to Charan Singh when he ( Charan Singh ) had returned to home. She has identified the diary Ex PW1/Art.1.
29.PW 13 Sh Deepak Jener deposed that on 16.03.2013 he made a call from hiis mobile No.9717360337 on the mobile number of his brother who was working at ESI Page 12 of 42 hospital, Delhi. His brother informed him that he was in hospital and at about 6.00 pm accused Ashok being his cousin would come in hospital and he alongwith accused Ashok would go to collect money at Harsh Vihar-II at the residence of Ashok Kumar.
30. He has further deposed that when his brother ( deceased Anil) did not reach the house till 11.00 pm, he made a call to his brother but found that his mobile was switched off. He made a call to accused Ashok on his mobile number 9250811037 and accused Ashok informed him that Anil had come to his house alongwith two other boys as Anil ( deceased) wanted to purchase a plot.
31. He has further deposed that on 17.03.2013, he made a call to accused Ashok and at about 10.00 a.m accused came to their house and repeated the version of purchasing plot. Thereafter he alongwith his relative went in search of his brother( Anil) and at about 1.00 pm he received a call from accused Ashok and who informed him that the dead body of his brother ( Anil) was lying at Koyal Enclave, Sahibabad U.P. He went there and identified the dead body of his brother from the photograph.
32. He has further deposed that at home he found that diary of his brother in which he maintained the account . Accused Ashok also remained in the house of this witness Page 13 of 42 for aforesaid period. On checking the diary he found that some pages were already removed by accused Ashok. He handed over the diary to the police which was taken into possession vide seizure memo Ex PW1/H. He has deposed that his brother (Anil ) had given Rs.3 lac to accused Ashok on interest basis and his brother Anil went to accused Ashok's house to collect the said amount.
33. PW-14 Sh Ajeet has deposed that on 09.03.2013 he had come to the house of his uncle Charan Singh for the purpose of examination of MTS. On the next day he alongwith Anil left for his examination center. At about 12:
15 noon, his brother Anil met him outside his examination center and from there he alongwith Anil went to Thekka at Harsh Vihar to meet accused Ashok.
34. He has further deposed that Anil made a call to accused Ashok and after about 15-20 minutes, accused Ashok reached there. After arrival of accused Ashok a quarrel was started in between Anil and accused Ashok on the pretext of some money. During the scuffle accused Ashok threatened Anil by stating that "agar paisa lega to jaan se hath dhona pad jayega". He has further deposed that on 17.03.2013, body of his cousin Anil was found near the house of accused Ashok.
35. PW 15 Ct. Om Parkash has deposed that 26.04.2013, duty Page 14 of 42 officer handed over him a copy of FIR and original tehrir and he handed over the same to Inspector Sanjay in his room.
36. PW 16 Ct. Nitin Tomar, has deposed that on 25.07.2013 he alongwith SI Manu went to P.S Sahibabad and collected one sealed pulanda containing the viscera of deceased, two small pulandas and sample seals from Malkhana P.S Sahibabad, vide seizure memo Ex PW16/A.
37. PW 17 Ct Parveen Kumar, has deposed that on 22.05.2013, he joined investigation of this case with Inspector Sanjay. He alongwith Inspector Sanjay, complainant Charan Singh, SI Manu, ASI Rajveer, Ct Sewa Ram and Ct Ravi were led by accused Vipin to garbage near cross river Mall, Delhi by stating that after killing Anil he had thrown his blood stained shirt in the garbage. A JCB machine was called by Inspector to search out the same but the same could not be recovered.
38. He has further deposed that thereafter accused Ashok led the police party to his house at Harsh Vihar-II Bhopra and produced one mobile phone after taking it from the room. Accused Ashok also produced one shirt which he had worn at the time of killing of Anil. Accused Ashok also led the police to Tilla Mod, Koyal Enclave, Bhopra Road where he Page 15 of 42 and accused Vipin had thrown the empty cartridges and purse of Anil in the bushes. Accused Ashok got recovered two empty cartridges and one black colour raxin purse containing visiting card and photograph of Anil. IO prepared ruqqa of the same and taken into possession vide seizure memo Ex.PW1/A.
39. He has further deposed that thereafter accused Ashok led police party to his house and produced above mentioned articles which was taken into possession vide seizure memo already Ex.PW-1/K-2 and PW 1/K-3 and at that time of producing, the said mobile was opened and having no SIM inside it, thereafter, all of them went to the Ghaziabad at Chowdhary Mod in search of the shop owner, from where both the accused had purchased the cloths which both the accused were wearing at the time of killing of Anil and while they were going to Ghaziabad, they had disclose that after killing Anil they had thrown the mobile of Anil into Hinduan River. The search of the mobile was made but the could not found.
40. He has further deposed that they all again went to Harsh Vihar along with both the accused persons and they disclosed that the motorcycle bearing no. DL 5SBJ used at the time of commission of crime was of their friend Karan. Thereafter, both the accused led them to the house of Page 16 of 42 Karan and got recovered motorcycle which was taken into possession by the IO and thereafter, they went to Yamuna Vihar Flyover and both the accused disclosed that they had purchased one chinese mobile phone and used the SIM of Anil to make a call to mislead the police and family member of Anil and the said chinese mobile was thrown near the flyover. Police team tried to recover the mobile phone but could not be found. He has identified Purse and articles as Ex P-2, mobile phone Ex P-3 , empty cartridge Ex P-3 and photographs of motor cycle as Ex PW 17/A1, A2, A3 and A4.
41. PW 18 HC Manoj Kumar has deposed that on 20.05.2013 he joined the raiding party consisting of Inspector Sanjay, SI Manoj Sherawat, ASI Rajbir Singh,Ct Jang Bhadur, Ct Ravi and complainant Charan Singh. He has deposed that being pointing out of complainant accused Ashok was apprehended and arrested . On the same date, on pointing out of accused Ashok, accused Vipin was apprehended and arrested.
42. He has further deposed that accused Vipin led the police party and complainant at his house at Seesam Wali Gali Phase II Harsh Vihar, Ghaziabd and he took them in a room of his house and took out a pistol alongwith one live cartridge kept in a polythene. Accused Vipin took out a Page 17 of 42 mobile phone which was used to communicate. He has identified the pistol and cartridge Ex P-4 ( Colly), mobile phone Ex P-5 . He has deposed that accused Ashok was interrogated and arrested vide memo Ex PW1/C and his personal search was taken vide memo Ex PW1/C-1. He has proved the sketch of pistol and cartridges Ex PW1/B. The pistol and cartridges were taken into possession vide memo Ex PW1/F and mobile was taken into possession vide memo Ex PW1/G. He has deposed that accused Vipin was arrested vide memo Ex PW1/D, his personal search was taken vide memo Ex PW11/D-1.
43. PW 19 Ct Kanwar Pal has deposed that on 29.07.2013, he took sealed pulandas from Malkhana , P.S Vivek Vihar, Delhi vide RC No.48/21, 49/21, and 50/21 and deposited the same in FSL Rohini, Delhi. Receipt of the same was handed over to MHC (M).
44. PW 20 HC Satish Kumar who has delivered the copy of FIR to the concerned MM, Joint C.P and DCP concerned.
45. PW 21 Ct Vivek has deposed that on 27.04.2013, he alongwith crime team reached at the spot ie GDA Land, Koyal Enclave, Harsh Vihar-II Shahibabad UP and took photographs of the spot. He has proved photographs Ex PW21/P-1 and negatives Ex PW21/P-2.
Page 18 of 4246. PW 21 (again) Sh Ankur Jain, Ld ACCM, has deposed that on 23.05.2013, on the application, Ex PW21/A of IO/ Inspector Sanjay Sinha for recording statement U/S 164 Cr P C of witness Karan Kumar. He has recorded the statement of Karan Kumar vide Ex PW21/B.
47. PW 22 Sh Arvind has identified his photograph on the photocopy of Customer Application form of mobile No.9250811037.
48. PW 23 SI Kaushal Ganguli, Incharge Crime Team has deposed that on 27.04.2013, he alongwith crime team reached at the spot ie GDA Land, Koyal Enclave, Harsh Vihar-II Shahibabad UP, who has inspected the spot.
49. PW 24 SI Harish Chand , PW 25 SI Raj Kumar and PW28 Ct Brij Mohan have deposed that on 17.03.2013, on receipt of information about lying of dead body at Koyal Enclave, they reached at the spot and found a dead body lying near the corner of pond. There was burnt injury marks on the back and head of the dead body. The blood was lying there at distance of 50 meter. The Panchnama of dead body was prepared by PW25 SI Raj Kumar in the presence of witnesses. They have further deposed that on 18.03.2013 Page 19 of 42 post mortem was carried out and after the post mortem examination, the dead body was handed over to the relative of deceased. The seizure memo of blood stain soil and plain soil Ex PW22/A was prepared.
50. PW 26 Retd SI P.C. Chaturvedi has deposed that on 19.03.2019, after registration of Zero FIR in PP Sahibabad U.P. The investigation of this case was marked to him. During investigation he prepared the case diary and reduced the contents of complaint running into 14 pages Ex PW26/A. He has visited the place of occurrence and prepared the site plan Ex PW26/B. He has recorded the statement of complainant Charan Singh, HC Raj Kumar and witness Kamruddin.
51. He has deposed that during investigation he came to know that the crime was committed in the jurisdiction of PS Vivek Vihar, Delhi. He made a request for transfer of this case to PS Vivek Vihar, Delhi. He has deposed that on 28.07.2013, Inspector Sanjay Sinha met him and he has furnished him detail report Ex PW26/D.
52. P.W 27 Sh Karan Kumar, has deposed that on 30.05.2013 he was produced by the police before the Ld MM and he gave his statement U/S 164 Cr PC to Ld MM at the instance of police. He has proved seizure memo Ex Page 20 of 42 PW17/A vide which his motor cycle No. DL 5SB J-4426 was seized.
53. PW 29 HC P Kalu Ram, is MHC(M), who has proved the relevant entry regarding deposit of two containers containing soil and blood stained cloth of deceased and viscera vide Ex PW29/A in Malkhana. On 25.07.2013, he has handed over the aforesaid case property to SI Manu Kumar. In this regard he has made handing over memo vide Ex PW 29/B. He has also proved the original Rapat No.26, dated 17.03.2013 and Rapat No.40 dated 18.03.2013 vide Ex PW29/C and PW29/D.
54. PW 30 ASI Sonu Kaushik, Assistant Draftsman has deposed that on 20.07.2013 he alongwith Inspector Sanjay and other police staff visited the spot i.e. vacant land of GDA, Koyal Enclave, near Harsh Vihar, U.P and he took measurement and prepared rough notes. On the basis of those rough notes and measurement he prepared scaled site plan Ex PW30/A.
55. PW 31 HC Ram Kishore, MHC (M), he has deposed that on 29.04.2013, Inspector Sanjay Sinha had deposited two sealed parcels and he has made relevant entry in Malkhana register No.19 at Sl No.2871. He has deposed that on 20.05 2013, Inspector Sanjay Sinha had deposited Page 21 of 42 two sealed parcels and he had made relevant entry in Malkhana register No.19 at Sl. No.2896. He has further deposed that on 22.05.2013, Inspector Sanjay Sinha had deposited four sealed parcels and he has made relevant entry in Malkhana register No.19 at Sl. No.2897. He has deposed that on 25.07.2013, SI Manu Sharma had deposited four sealed parcels and he had made relevant entry in Malkhana register No.19 at Sl. No.3004.
56. He has further deposed that 29.07.2013, on the direction of Inspector Sanjay Sinha he has handed over 9 sealed parcels to Ct Kunwar Pal vide RC No.48/21,49/21 and 50/21 alongwith sample seal to be deposited to FSL, Rohini, Delhi. On 06.09.2013 four sealed parcels were collected from FSL alongwith report and he made relevant endorsement. He has proved receipt of deposit of case property vide Ex PW31/A to PW31/C and photocopy of RC vide Ex PW31/D to PW31/F and acknowledgment Ex PW31/G to PW31/I.
57. PW 32 SI Manu Kumar, has deposed that on 29.04.2013, he has joined the investigation of this case with IO/Inspector Sanjay Sinha .He has proved seizure memo of blood stained soil and earth control Ex PW1/B. He has proved memo Ex PW1/F vide which pistol and cartridge were taken into possession. He has also proved pointing out memo Ex PW1/J and Ex PW 1/J-1, i.e the place from Page 22 of 42 where accused person had taken deceased, Anil and the place of commission of murder of deceased Anil. He has also proved the seizure memo Ex PW1/K and Ex PW1/K-1 vide which two shell and a purse belonging to deceased which contains visiting card and ID proof issued by school of deceased was taken into possession.
58. He has proved the sketch of fired cartridges vide Ex PW32/A. He has proved the seizure memo Ex PW1/K-2 and PW1/K-3 vide which shirt and mobile phone was taken into possession. He has proved seizure memo Ex PW17/A vide which the motor cycle No. DL 5SB J-4426 was seized. He has deposed that on 25.007.2013, on the direction of IO he alongwith Ct Nitin reached at PS Sahibabad and collected viscera parcel alongwith sample seal, two small parcels containing earth control and blood control and took the same into possession vide memo Ex PW18/A.
59. PW 33 Sh Mandeep Singh Randhawa DCP Central Distt has proved the sanction U/S 39 of Arms Act qua accused Vipin vide Ex PW33/A and sanction qua accused Ashok Ex PW33/B.
60. PW 34 Sh Inderash Kumar Mishra, Asstt Director Biology has given DNA Profile report Ex PW34/1. The blood sample collection form regarding taking blood sample of Sh Page 23 of 42 Charan Singh and Smt Sunita Devi vide Ex PW34/B andPW34/C.
61. W35 Pooja Shrotriya Senior Scientific Chemical Examiner has given her detailed biological report Ex PW35/A and serologically report Ex PW35/B.
62. PW 36 Sh Puneet Puri Astt. Director Ballastic has given his detailed report Ex PW36/A stating there in that improvised pistol Ex F-1 was a fire arm and the cartridge mark Ex A-1 and marked EC 1 & EC2 are ammunition as denied in the Arms Act, 1959.
63. PW 37 SI Avesh Kumar, has deposed that on receipt of DNA report from MHMC(M) in sealed envelope, which was marked to him by SHO concerned, he had prepared the supplementary charge sheet and filed the said report on judicial record.
64. PW 38 Inspector Sanjay Sinha, IO of the case. He has depsoe that 27.04.2013, he visited the place of occurrence i.e Open GDA Land Koyal Enclave, Harsh Vihar. Crime team took photographs of the spot at his instance. Complainant Charan Singh was called by him. One Kuldeep who made a call at 100 number also met him and was also joined Page 24 of 42 investigation. He also called witness Kamrus Saqib @ Kamruddin and made enquires from him and recorded his statement.
65. He has prepared rough site plan at the instance of Kuldeep vide Ex PW38/A. On the same day he also recorded the statement of Kamru Saqib @ Kamruddin. 29.04.2013 he alongwith complainant and staff of FSL visited the place from where the dead body of deceased was recovered and from where the FSL team collected blood stained soil and earth control. He also recorded supplementary statement of complainant. On 15.05.2013, when complainant has produced a diary having torn pages Ex PW1/Article1 which was seized vide memo Ex PW1/H.
66. He has prepared Sketch of those two empty shells is Ex.PW32/A and the seizure memo of both the shells Ex.PW1/K-1. He has prepared site plan of the place from where wallet and empty shells of cartridges were recovered, vide Ex.PW38/C. He has prepared site plan of the place of recovery of countrymade pistol from the house of your -accused Vipin, Ex.PW38/D. PW38 has deposed The site plan of the place of pointing-out by accused Vipin where he had thrown his clothes after the incident, vide Ex.PW38/E. He also prepared the site plan of the place of recovery of shirt and mobile phone of accused Ashok, Page 25 of 42 same Ex.PW38/F. He has deposed that on 23.05.2013 statement of Sh. Karan Kumar u/s 164 Cr.P.C. was got recorded from Ld. M.M. On 29.05.2013 he sent a request to police station Sahibabad for sending exhibits and documents pertaining to this case to the police station Vivek Vihar,Delhi. On 17.07.2013 he obtained subsequent opinion from Autopsy Surgeon upon his application Ex.PW38/G. On 20.07.2013 he took Draftsman/HC Sonu Kaushik to the spot, who had taken the rough notes and measurement of the spot. After completing the investigation he filed charge-sheet . On receipt, FSL result he has also filed the same in the court vide Ex.PW38/H.
67. PW 39 Retired SI Baldev Raj, who has proved DD No.25- A Ex PW39/A and DD No.37-A Ex PW39/B.
68. PW 40 SI Vijender Singh has proved the copy of DD No.37-A regarding proeedings being conducted by him in respect of DD No.25-A. STATEMENT OF ACCUSED.
69. After completion of the prosecution evidence, the statement of both of accused persons, under section 313 Cr.P.C., were recorded so as to enable them to personally explain the circumstances appearing in the evidence against them. All the incriminating evidence were put to Page 26 of 42 the accused persons separately which they have denied, as being incorrect and have stated that a false case has been registered against them and they have been falsely implicated in this case. Accused has chosen not to lead defence evidence.
DEFENCE EVIDENCE
70. DW 1 Sh Manoj, who has taken accused Ashok Nagar and his father Ranveer Singh in his Wagon R Car to P.S Vivek Vihar, Delhi.
71. DW 2 Sh Ranveer Singh, father of the accused has depsoed that on 16.05.2013 he alongwith DW1 and accused Ashok Kumar went to P.S Vivek Vihar, Delhi and he left Ashok Kumar at P.S Vivek Vihar as he was called at the P.S for rmaking some inquiries.
ANALYSIS & DETERMINATION
72. I have heard the Ld. Addl. Public Prosecutor Sh. Rakesh Mehta for the State and, Ld Counsel for the accused . I have carefully perused the entire record including the testimonies of prosecution witnesses, documentary evidence and the statements of the accused person. I have given a thoughtful consideration to the same.
73. Before proceeding further I would like to mention certain Page 27 of 42 legal preposition in general. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence with which the accused are charged with. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused persons become entitled to the benefit of doubt ultimately leading to their acquittal. Emphasis can be supplied upon a case titled Sadhu Singh Vs. State of Punjab 1987 (3) Crimes 55 .
74. Now in the instant case, the accused has been charged with the offence Under Section 120-B r/w Section364/120- B, 302/120-B IPC and 25/27 of Arms Act.
75. So the The court shall firstly deal with the essential ingredients which prosecution is required to prove in order to establish the charge against the accused persons.
76.The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also Page 28 of 42 be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on case titled Narsingh Challan Vs. State of Orissa. (1997) 2 Crimes 78
77.When a death is caused by injuries, the case either covered within the purview of section 300, firstly, where the act is caused by intention of causing death or it may fall under section 300 thirdly where the intention of the accused is to cause bodily injuries on the deceased which are of such nature that they are sufficient in ordinary course of nature to cause death. The emphasize in later case is on sufficiency of injuries inflicted. This sufficiency Page 29 of 42 is actually of such a nature that there is high probability of death being ensued in ordinary course of nature. When they do actually exist and death ensues as a result of causing of such intended injuries, the offence is murder. Reliance placed on 1997 CR. L.J. 2430 State Vs. Vishnu Daga Pagar.
78.Further pertinent to mention here that in cases like death / murder generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proved facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The jaw regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of Page 30 of 42 the Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"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. it must be such as to show that within all human probability the act must have been done by the accused."
79.This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 Where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principals of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should fully established.
(2) the facts so established should be consistently only with the hypothesis of the guilt of the accused that is to say, they should not be explained 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 Page 31 of 42 hypothesis except that one to be proved and. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
80. In the light of settled proposition of law, let us examine the present case. The first fact which has to be established by the prosecution is whether Anil son of Charan Singh was murdered or not. The post martem examination upon the dead body of deceased was conducted vide Ex PW3/A. PW1 alongwith his relatives went to District Hospital Ghaziabad and identified the dead body as of his son Anil. So factum of death of deceased Anil has been proved on record.
81. Now the cause of death of deceased Anil has to be ascertained. The Post mortem report placed on record Ex PW3/A and testimony of Doctor has proved the cause of death "coma and shock and hemorrhage as a result of ante- mortem injuries".
82. Now the question arises as to who has committed the offence or the prosecution has been able to produce on record circumstantial evidence against the accused facing trial or not. The case of the prosecution is based upon the Page 32 of 42 last seen theory as PW 10 Kamrus Saqid has seen the deceased being taken by the accused person on Motor motor cycle No. DL 5SB J-4426. The second circumstance against the accused persons as alleged by the prosecution is that accused Ashok Nagar has borrowed a sum of Rs.3,00,000/- from deceased Anil and he has torn the pages of the diary being maintained by deceased Anil to keep record of borrowers.
83.Before further adverting to facts of last seen in evidence in present case. I would like to mention certain settled principle of law which has to be considered while relying upon the last seen evidence. Last seen theory is a circumstantial evidence which means that the accused was last seen with the deceased ( when She was alive) and whereafter the deceased has been found dead. It is infact a presumption of fact which presumes that because deceased was last seen in the company of accused, it is accused who is required to explain how he/she died. Last seen evidence by its very nature is a weak kind of circumstantial evidence and is very well affected by a number of factors viz the gap between last seen and time of death, the conduct of the accused after last seen and till arrest and other surrounding factors like motive and even recoveries. The Hon'ble superior Courts in a catena of judgments have reiterated the nature, admissibility and weight of last seen evidence keeping in view the very fact Page 33 of 42 that even last seen theory is required to be proved by established facts before the same can be actually weighed for the purpose of its relevance for ascertaining guilt/innocence of the accused.
84. In Kamla Devi Vs. State of Delhi 2012 JCC 1457 it has been held that merely because presence of the accused with deceased is established, the same by itself cannot be taken as strong incriminating circumstance to connect accused with commission of crime. The same is not sufficient in absence of complete chain of circumstances.
85. In Trilochan Verma Vs. State, 2013(4) JCC 2585 it has been held that the theory of last seen together is not a universal application and in the absence of any other positive corroborative evidence, it would be hazardous to come to a conclusion of guilt in such cases.
86.In Mohibur Rehman & Anr Vs State of Assam (2002) 6 SCC 715, it has been held that " the circumstances of last seen does not by itself necessarily lead to inference that it was the accused who committed the crime, the Hon'ble Apex Court has held that it may depend upon a number of other factors and there may be cases where on account of other clinching evidence, the close proximity of time and place between the last seen and the factum of death, a rational mind may be persuaded to reach an Page 34 of 42 irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
87.In Arjun Malik Vs State of Bihar 1994 Supp (2) SCC it has been held that solicitory circumstance of the accused and victim last seen together will not complete the chain of circumstances for the Court to record the finding that it is consistent only with the hypothesis of guilt of the accused. No conviction on that basis alone can be founded. Also in Sahadeva & Anr Vs State of Tamilnadu 2012 (3) JCC 1756. In nutshell last seen evidence is a weak kind of circumstantial evidence requiring corroboration from other established and clinching evidence and it would not be safe to found a conviction solely on the ground unless other reliable evidence form a complete chain of circumstantial evidence leading to only one conclusion forming hypothesis of guilt of the accused inconsistent with his innocence.
88. Let us now appreciate the evidence produced on record whether the testimony of PW 10 who is shown to be last seen witness to prove the fact that the deceased was seen in the company of both the accused lastly by him. So, on perusal of file and considering the prosecution case, the first fact has to be proved by the prosecution is that PW 10 was present at ESI Hospital, Jhilmil Colony, Delhi at 6.16 PM Page 35 of 42 or not. On perusal of entire record there is not a single evidence which substantiate the fact that mother of PW 10 was admitted in ESI hospital on 16.03.2013. The IO has categorically deposed in his cross examination that he has not collected the medical documents of the mother of PW10 to show that she was admitted in ESI Hospital.
89. An another fact being important, is also to be seen by the Court and to proved by the prosecution beyond the reasonable doubt to show the presence of PW10 at the hospital. There is no such documentary evidence at all on record which even suggest to this Court that PW 10 Kamrus Saqib was present at the hospital on 16.03.2018, moreover there is one fact which has been deposed by PW 10 himself in his cross examination that he has made a call to deceased Anil at his mobile number and he has further deposed that he had disclosed his mobile numbers 9899487618 and 9599842926 to the IO. The PW 10 deposed that CDR of his phone was received by the IO. On perusal of record,no call detail of mobile phone of PW 10 has been placed on record despite obtaining the call details of mobile phones of PW10. So the presence of PW 10 at ESI Hospital Jhilmil Colony,Delhi is highly doubtful particularly in view of the evidence which has come on record as IO despite having call detail of PW10 has not placed on record which could have proved the presence of PW10 at ESI hospital or his making call to deceased Anil. I Page 36 of 42 am not giving weightage to the documentary evidence because a man can tell lie but a document does not.
90. The testimony of PW10 to the effect that deceased Anil was taken by the accused persons with them is also doubtful because PW 1 Charan Singh has stated in his complaint Ex PW1/A that it was PW10 who has disclosed that deceased was called by accused Ashok Nagar in his presence by making call on the deceased mobile phone that he was called at the House No.C-44, Gali No.4 Jainwali Gali, Harsh Vihar-II U.P. But the fact was not disclosed by PW 1 that deceased was taken on the motor cycle by the accused persons. The statement of PW 1 was recorded by Shahibabad police on 20.03.2013 where the fact with regard to taking away the deceased by the accused persons on a motor cycle has not been mentioned in the complaint Ex PW1/A as well as in Roznamcha report Ex PW26/A. The question arises when PW 10 has disclosed the fact of receiving a call by deceased from accused then why he has not disclosed to PW1 that deceased was taken away by accused persons in his presence which creates doubt about the trustworthiness of PW10. So these facts somehow creates doubt regarding the fact that PW10 had seen the deceased lastly in the presence of accused persons.
91. There is one another glaring lacuna in the present case as Page 37 of 42 PW 10 has only identified accused Ashok Nagar in the Court and other accused has not been got identified by PW10. There is no judicial TIP being conducted by the investigating agency of both the accused persons despite the fact that prior to the incident both the accused were not known to PW10. The prosecution has not explained the circumstances of not identifying the other accused. The Motor cycle involved in the present case and allegedly used by the accused person while taking away the deceased with them in the presence of PW10 has also not been got identified by the prosecution in the examination of PW10. PW10 has also not described the make, company and colour of the motor cycle which gives doubt regarding the involvement of motor cycle. Particularly, in view of the statement of PW 27 Sh Karan Kumar, the owner of the motor cycle, who has deposed that he has not given his motor cycle No. DL 5SB J-4426 to accused. PW27 has deposed that his statement U/S 164 Cr P C was got recorded by the police under pressure. So in view of the statement of PW27 a fact cannot be ruled out that his statement was got recorded under pressure and it also creates doubt regarding the fact that PW 10 has seen the accused person on the motor cycle No. DL 5SB J-4426.
92. There is one another fact in the present case which also highly creates doubt regarding the fact that deceased was taken by the accused persons because as per CAF Ex Page 38 of 42 PW5/A the mobile No.8860098480 was being used by deceased Anil and mobile No. 9015819370 was being used by accused Ashok Nagar. But the CDR Ex PW5/C shows that a call was being made by the deceased from his mobile No.8860098480 to the mobile phone No. 9015819370 of accused Ashok Nagar at 7.14 PM on 16.03.2013. If the accused Ashok Nagar and deceased were together ( as per last seen theory ) then the prosecution has not clarified the circumstances in which deceased had made a call to the accused. It probably prove the fact the accused persons were not present with the deceased at that time i.e 7.14 PM on 16.03.2013.
93. The another circumstance which has to be proved by the prosecution beyond the reasonable doubt is, whether the diary Ex PW1/Art.1 was being maintained by the deceased and was in the hand writing of deceased or not. The fact is not proved on record whether the diary Ex PW1/Art.1 was in the handwriting of deceased. Moreover thee is doubt about the diary as the diary was seized vide memo Ex PW1/H on 15.05.2013. The delay in handing over the diary Ex PW1/Art.1 by PW1 and collected by the IO has not been explained by the prosecution which creates doubt that deceased used to maintain the diary Ex PW1/Art.1. So far as the fact regarding tearing of pages from diary Ex PW1/Art.1 is concerned PW 2 Smt Sunita has deposed that she was told by PW12 Premwati that she(PW12) had seen Page 39 of 42 accused Ashok Nagar while tearing the pages of diary. But PW 12 Premwati has deposed that she had told this fact to PW1 Charan Singh when he has return to home. But PW 1 Charan Singh in his testimony, in this regard has deposed that his wife had informed that PW 12 told her about the fact of torning pages of diary. Moreover,the prosecution has not examined even a single witness, whose name are being shown in the diary Ex PW1/Art.1 to support it version that deceased used to lend money on interest.
94.Then adverting to the recovery being effected by the investigating agency. The recovery of the weapon of offence i.e. pistol alongwith one live cartridge kept in a yellow coloured polythene and mobile phone having Reliance sim card, which was used at the time of commission of the offence is concerned. Now first and foremost this recovery has been made in thickly populated area despite being a busy area having lot dwelling houses but therein no independent witness was associated. The mode and the manner in which the recovery was effected and the recovery memo was prepared also do not inspire confidence. The witness of recovery deposed contrary version regarding preparing of recovery memos. The recovery was required to be effected by associating independent witnesses vouching for its genuineness. In absence thereof cloud of doubts have clearly come up on the alleged recovery. Reliance place upon Kavinder Vs. Page 40 of 42 State {2004 (115) DLT 541 (DB).
95. So far as scientific evidence is concerned the report on blood stained soil and earth control, which was lifted from a distance of about 30-32 meters from the place of recovery of dead body is also reported to be inconclusive.
CONCLUSION.
96. In the ultimate analysis of the statements given by PWs and the circumstances discussed above surrounds the entire prosecution version in a clouds of doubt. The prosecution version is marred by serious contradictions unexplained by any plausible explanation. In the judgment reported as Madari @ Dhiraj & Ors. Vs State of Chhatisgarh, 2004(1) C.C. Cases 487 it has been held that crucially the materials and evidence on record do not bridge the gap between "may be true" and "must be true", so essential for a Court to cross, while finding the guilt of an accused.
97. The prosecution has utterly failed to prove its case beyond the pale of reasonable doubt. It would not be safe to base a conviction on the basis of aforesaid established facts in the wake of contradictions and clouds of doubt. The accused persons become entitled to the benefit of doubt and are accordingly granted so. They are acquitted of the Page 41 of 42 charges Under Section 120-B r/w Section364/120-B, 302/120-B IPC and 25/27 of Arms Act
98. In view of the statutory requirement of section 437-A Cr.P.C. the accused are directed to furnish a bail bond in the sum of Rs.10,000/- each with one surety of like amount to the satisfaction of the court, for a period of 6 months, to appear before the appellate court, if so required.
99. File be consigned to record room after due completion.
Digitally signed by JAGDISH KUMAR JAGDISH Location:
Shahdara District,
ANNOUNCED IN THE OPEN
KUMAR Karkardooma
Courts
Date: 2019.12.24
COURT ON THIS 21.12.2019 15:09:20 +0530
(JAGDISH KUMAR )
ADDI. SESSIONS JUDGE-04
(SHAHDARA):DELHI
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