Delhi District Court
State vs . Vinod Kumar Yadav on 17 March, 2012
IN THE COURT OF SH. J. R. ARYAN, DISTRICT JUDGE-CUM-ADDL.
SESSIONS JUDGE, INCHARGE(NORTH EAST DISTT.),KARKARDOOMA
COURTS, DELHI
SC no.30/10
Unique ID no. of the case:-02402R0043102010
State Vs. Vinod Kumar Yadav
s/o Sh. Pheru Singh
r/o village Tikrahar,
PO Sohan, PS Gura, Distt., Mainpuri, UP.
FIR No.312/2009
PS: Khajuri Khas
U/sec. 302 IPC
Date of institution of the case: 09.04.2010
Date of reserving the case for order: 06.03.2012
Date of passing of order: 17.03.2012
JUDGMENT
1. Accused Vinod Kumar Yadav has been tried on a charge of murder.
Charge is that on 05.11.2009 at around 10.15am in a place main gate of Sonia Vihar Water Treatment Plant towards Wazirabad Bridge, accused caused death of Rehman @ Rajab Ali by gun shots. Accused claimed trial by pleading not guilty to charge. Prosecution case is based upon circumstantial evidence. There is no direct witness of this crime. Facts wherein accused was charge sheeted in brief are.
2. DD 6A was recorded at Police Station Khajuri Khas on 05.11.2009 at around 10.30am on an information conveyed by wireless operator that a person has been caused gun shot between Nanaksar and Khajuri and that SC no.30/10 Page 1/25 information had been conveyed from a mobile no.9899770494. SHO Police Station Khajuri Khas Inspector Pankaj Sharma PW24 proceeded to inquire into this incident. He alongwith staff reached the spot which was around 250 yards ahead of Sonia Vihar Water Treatment Plant and Inspector Pankaj Sharma found that on right side wall of the foothpath there was a lot of blood. Six empty cartridges ( 8mm) and one bullet led, one green cap, a pair of slipper, a wooden log ( danda ) 4-5 feet long and one bicycle were lying there. Victim injured was found to have been taken to GTB hospital by PCR. Leaving behind Inspector Rishi Pal PW23, Inspector Sharma with further staff reached GTB hospital and collected the MLC of the victim which mentioned victim as unknown, aged around 32 years. Victim was found recorded as a case of history of gun shot and " brought dead". There were gun shots injuries. The dead body was identified in the hospital by victim's wife Afsaroon @ Rabia, who has been examined as PW16 in this trial. Victim was identified as Rajab Ali @ Rehman resident of B-6/486, Tisra Pusta, Sonia Vihar, Delhi.
3. Inspector Sharma then returned to the scene of crime and Crime team was summoned and the site was got photographed. No eye witness was found. But then case under Section 302 IPC was got registered by sending a rukka Ex. PW25/A3 and FIR Ex. PW22/B was registered.
4. Sample blood with the help of a bandage was lifted from the scene of the crime through a sealed pulanda vide seizure memo Ex. PW12/A. A bullet SC no.30/10 Page 2/25 led as well six empty cartridges were also seized through sealed pulanda vide seizure memo Ex. PW12/B. Blood stained earth and earth control sample were also lifted vide seizure memo Ex. PW12/C and Ex. PW12/D. Wooden log ( danda ), a pair of slippers were also seized from the spot.
5. In the personal search of the victim deceased taken up at GTB hospital one pocket diary, bunch of three keys, a sum of Rs.38/- and a visiting card in the name of V. K. Cycles were recovered and were seized through memo Ex. PW8/A. Visiting card was bearing mobile no.9899548437 and IO called that number which was responded by PW2 Om Parkash. Pocket diary was found containing mobile bearing no.9868584388 and PW4 Mahender Singh respondent on that number and both of them were summoned to GTB hospital. Witness Mahender Singh disclosed that deceased Rajab Ali was a tenant in his property and PW2 Om Parkash identified deceased Rajab Ali as a rickshaw puller, who hired rickshaw from this witness. Witness Mahender Singh disclosed to IO that Rabia was the wife of deceased and accordingly Rabia was called in this hospital.
6. Further prosecution case is that Rabia informed IO that she suspected Vinod Kumar Yadav, who could have committed this murder and she provided mobile no.9313693715 which belonged to Vinod Kumar Yadav as he used to call Rabia prior to the incident. It is further revealed during the investigation that accused Vinod had illicit relations with Rabia.
7. Meanwhile body of the victim was subjected to post mortem and a few SC no.30/10 Page 3/25 sealed pulanda bearing seal AK were collected from the hospital. Three of those pulanda were stated to contain bullet as recovered from the body and those pulanda were seized through memo Ex. PW25/E.
8. Investigation Officer got the mobile phone calls details taken out and found that there was connectivity between mobile 9313693715 and mobile no.9350750740. It was further found that mobile no.9350750740 was also in constant touch with mobile no.9711185003. Investigating Officer called this last mobile number and PW5 Gulab responded and from Gulab Investigating Officer came to know that mobile no.9350750740 belonged to Monu PW19, who was friend of Gulab. Consequently, Investigating Officer reached the place of Monu @ Pradeep Kumar and facts revealed that Vinod accused was residing in Madanpur Khadar, he being provided a shelter by uncle of this witness Monu @ Pradeep Kumar PW19 and accused used to work for uncle of this witness. Accused had gone to uncle of this witness about 10 to 15 days before this incident. Accused had been provided a room in the house and accused was helping in household and commercial shop activities of the employer and in the meanwhile during vacancy period accused was plying rickshaw. Accused had been provided with mobile phone 9313693715 by PW19 so as to be in touch.
9. All these facts were revealed to Investigating Officer on 16.11.2009 and then PW19 joined police team headed by Investigating Officer Inspector Sharma for the search of accused. They reached Madanpur Khadar market SC no.30/10 Page 4/25 and in Madanpur near Govt. School, C Pocket, accused was spotted and apprehended by the Police. Accused when interrogated, he confessed his guilt and accused further disclosed that the rickshaw he was carrying and plying also belonged to person he had murdered. Accused was arrested and his arrest and personal search memo Ex. PW19/A and Ex. PW19/B were prepared. Accused disclosed to Police that the weapon whereby he had committed murder of the victim was in his room and accused took the Police party to his room, opened the room and there was a rack in the room from where accused took out a polythene which contained a country made pistol and that pistol was found loaded with one live cartridge and another live cartridge was there in the polythene. Sketch of that fire arm and cartridge as Ex. PW19/C was prepared and then these articles were taken into a cloth pulanda and seals was affixed and seized through seizure memo Ex. PW19/D. Accused further took out a bag lying in the room and that bag contained a shirt and jeans pant which were found bearing blood stains. That shirt and jeans pant were also taken into sealed cloth pulanda and seized through seizure memo Ex. PW19/E. Accused was also found carrying mobile phone operating on no.9313693715 and it was seized. Rickshaw found in possession of accused was also seized through memo Ex. PW19/J. Blood stained articles, fire arm, bullets and empty cartridges were got examined from FSL and report of Biological Division as well report from Ballistic Division of FSL respectively Ex. PW17/A, Ex. PW17/B and Ex. PW18/A were received. SC no.30/10 Page 5/25 Blood sample lifted from the spot, blood stained clothes of the deceased victim and then blood stained clothes of accused i.e shirt and jeans pant were reported bearing human blood and blood group was found "A". Ballistic expert report revealed that county made pistol was .315 bore and was in working order. Live cartridges recovered alongwith the fire arm were test fired successfully and thus found as ammunition. Examination of the two live cartridges test fired and six empty cartridges recovered from the scene of the crime revealed that empty cartridges had been fired from the country made pistol examined in this case as Microscope Model Leica DMC were found identical. Bullets recovered from the body of the victim particularly bullet EB1 and EB2 when examined under comparison Microscope Model Leica DMC were also found identical and thus could be stated to have been discharged from the country made pistol of this case. Prosecution has pressed those incriminating circumstances with an arguments that if country made pistol got recovered by the accused was the one wherefrom the empty cartridges found on the scene of the crime had been fired and two bullets recovered from the body of the victim were also opined fired from this pistol then accused could be taken to have committed this murder. Biological Division report has also been pressed as incriminating circumstance that clothes of the victim i.e shirt and jeans pant got recovered by the accused were also bearing blood stains and the blood group "A" on these clothes matched the blood group of the deceased. With this incriminating evidence SC no.30/10 Page 6/25 accused was charge sheeted.
10. In all 25 prosecution witnesses have been examined. Prosecution seeks to rely upon following incriminating circumstances to prove this charge against accused:
1: Illicit relations of accused with wife of the deceased to which deceased had a grudge and grievance. Immediate motive was that accused got a son Sonu born to the wife of the deceased in that illicit relation and had been demanding custody of child and on the date of incident and a day before accused gave a call on phone to the wife of deceased calling upon her to come and bring Sonu with her. But then deceased came on that line and asked accused "teri maa ne doodh pilaya hai to aa kar le ja".
2: Accused was found plying rickshaw which belonged to deceased and that rickshaw had been hired by deceased from PW2.
3: Accused got recovered his wearing clothes i.e shirt and jeans pant which were bearing blood stain marks and that blood on the clothes was determined group "A" which matched with the blood group of the deceased 4: Accused got recovered the weapon country made pistol and the expert report established that empty cartridges found from the scene of the crime and the bullets recovered from the person of the deceased had been fired from that pistol.
11. We have to examine from evidence brought on record in this trial if these incriminating circumstances could be held to have been duly proved SC no.30/10 Page 7/25 and then if those proved circumstances provides enough material to infer the only hypothesis of the guilt of the accused. In a case based upon circumstantial evidence before a court finds a person guilty of offence the standard of prove and criteria required to be satisfied has been a well settled proposition of law by now and the Hon'ble Supreme Court judgment reported as 2010(8) SCC 593 may be quoted as follows:
The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing.
12. Material prosecution witness on incriminating circumstance:-
i.e illicit relation of accused with wife of deceased and a child born to wife of deceased which accused claimed to be his child and wanted to obtain his custody are; PW16 Smt. Rabia and further supporting witnesses, who will SC no.30/10 Page 8/25 be referred to accordingly. According to prosecution case PW16 Smt. Apsaroon while residing in a house where accused was also residing had developed some intimacy with the accused. Witness however, when appeared for evidence she deposed that when she was residing in the house of one Attar Singh in Sonia Vihar, accused also used to reside in that house and accused started treating her like his sister and she used to cook food for him. Since accused did not have any brother she also started treating accused like her brother. She deposed that her husband Rehman @ Rajab Ali quarrelled with her when he found that witness used to obey direction of accused. On one occasion accused took this witness alongwith her children to Railway Station and they all boarded a train. Accused had told the witness that her husband would meet them at Railway Station. But he was not there and accused told the witness that her husband might have left by some earlier train. They all reached at Etawah and accused took this witness to his native village "Tikrahar". Witness states that she had a very tough living in that village as she did not have any money. She stayed there for 1 ½ month and she then requested accused to take her to her mother's place. Accused told witness that her husband had taken Rs.7,000/- and when he would return money, he will leave the witness to her mother's house. Witness states that she was pregnant at that time and gave birth to a male child on 26th January. Witness further states that accused used to give beating to her and her children. Finally accused took this witness to her native village and she SC no.30/10 Page 9/25 herself informed accused that village people including Pradhan would not spare him and he should go back to his village and accordingly accused returned to his village. Accused came back to village of this witness after sometime and took this witness and her children to some other village. Husband of this witness was informed and he arrived there. Witness alongwith her children accompanied her husband and they came to the village of her husband and started living there. On the festival of Eid accused came to that village and then relatives of this witness and some villagers collected to beat the accused. But he ran away. Next day he came again and asked this witness and her husband to accompany him but he was again chased away by the people. Witness then gave a long narration of events as to various places she lived and finally they came back to Delhi. She states that on one occasion accused met her on the way and there was a quarrel between accused and her husband. Witness states that once she had quarrelled with a person and a case was registered and accused used to accompany her on the dates in court. She further deposed that accused asked her to come and reside with him but she declined. On one occasion accused took this witness to Madanpur Khadar and started living with her after taking a room on rent. Husband of this witness was informed by someone and accordingly this witness came back to her husband and then accused murdered her husband.
13. Ld. Addl. PP found witness not to have deposed evidence in accordance with her earlier statement made to the Police and with court SC no.30/10 Page 10/25 permission, he cross examined witness. Witness however denied suggestion of ld. Addl. PP that in the house of Attar Singh, illicit relations between her and accused had developed or that her husband had seen them in objectionable situation. She further disputed suggestion that accused thereafter started living separately or that she used to come and meet him. She was confronted with her u/sec 161 CrPC statement. She specifically denied if a child was born to her from accused. In this cross examination by ld. Addl. PP witness admitted that soon after she started living with her husband, accused Vinod used to give calls to her from a mobile phone number 9313693715 and asked this witness to come with his son Sonu to live with him. She further admitted that a word of exchange took place between accused and deceased Rehman on a phone conversation and Rehman told accused Vinod "teri maa ne doodh pilaya hai to aa kar le ja".
14. Witness when cross examined by ld. defence counsel she was confronted with most of the evidence she deposed with her previous statement before the Police where all those facts had not been mentioned. She admitted that on 04.11.2009 she was present in her house with her husband and she was not having any mobile phone with her at that point of time. In further cross examination witness deposed that she did not know the mobile phone number of accused Vinod. In further cross examination witness deposed that all her three sons and daughter had been born to her from her husband. Defence suggestions were given to witness that due to her illicit life SC no.30/10 Page 11/25 with many people there were instances where her husband got enraged and that she herself got her husband killed.
15. Ld. defence counsel argued that witness when was confronted with earlier police statement on material points and witness specifically denied suggestion of ld. Addl. PP that she had developed illicit relations with accused, the prosecution could not be held to have proved this incriminating circumstance of illicit relation between wife of deceased and accused and that illicit relation motivated accused to kill the deceased. Ld. counsel further argued that this witness deposed in affirmative in cross examination conducted by ld. Addl. PP that her husband told accused "teri maa ne doodh pilaya hai to aa kar le ja". But then no particular date or occasion has been clarified and such vague evidence would not prove motive on the part of accused to kill the deceased. He further argued if accused was giving calls from his mobile phone to this witness then prosecution ought to have collected the mobile phone number of this witness and call details could have been proved to support this evidence. Ld. counsel submitted that said incriminating circumstance cannot be found to have proved from this evidence. On the other hand ld. Addl. PP submitted and argued that another material witness examined in this case is PW-2. Deceased used to take rickshaw from this witness PW2 on hire to ply on a particular day and this witness has supported the prosecution case and ld. Addl. PP pointed out that a suggestion has been given to PW2 in cross examination on behalf of accused SC no.30/10 Page 12/25 himself that accused had illicit relation with wife of the deceased. Witness in cross examination, however, deposed "I do not know if accused Vinod Kumar Yadav was having illicit relation with Rabia, wife of deceased. It is wrong to suggest that I came to know regarding illicit relation between accused and Rabia or that this fact was in the knowledge of Rehman". It is submitted that when accused himself asserted a fact then there was no question of prosecution proving it by further evidence. I have appreciated these contentions.
16. Onus is always upon the prosecution to prove its case. If an incriminating circumstance is propounded then it is for the prosecution to prove it though besides examination of witnesses on that incriminating evidence, prosecution may rely upon other material. But then question would be whether prosecution succeeded in establishing that fact from the evidence. In this case PW-16 has given a very long narration of the events. But then without specifying at all as regards any particular date or even month when she had been in the company of the accused. She herself denied if she had developed any illicit relations with the accused. It is only in the cross examination by the ld. Addl. PP when she deposed that after her son was born accused threatened to have relationship with her and gave a threat and under that threat she developed physical relation with him. Again this evidence is entirely unspecific. She has not at all specified as to when that occasion arose and where she lived in that relationship with the accused and to what extent it SC no.30/10 Page 13/25 was to the annoyance of her husband. Prosecution wanted to establish an immediate motive against accused and that was when a son Sonu was born to wife of deceased from the accused and accused wanted to take custody of his son deceased on a phone line conveyed accused to dare to come and take custody of the child. Witness deposed this fact only when a suggestion was put to her by ld. Addl. PP while cross examining her. Such a evidence is a weak kind of evidence. There is no other supporting material to this witness as seen above. Witness has not specified a particular occasion when the above fact occurred i.e the fact that accused wanted to take custody of child which he claimed to have born to the wife of deceased from the accused and deceased dared accused on that issue.
17. Witness stated that accused was giving calls from his mobile phone no.
9313693715. But witness did not specify since when he was giving calls. Investigating Officer did not collect any mobile phone number of this witness. Witness admitted in cross examination that she was not having any mobile with her on or around the date of incident. Accordingly, no other supporting material is available on this evidence that accused asked for custody of child of PW16 and deceased retorted back to the accused. In such circumstances a mere suggestion to PW2 in cross examination fails to bring on record material to suggest an illicit relation relation between accused and the wife of the deceased and that circumstance provided a motive for accused to eliminate deceased. To my considered view prosecution fails to prove and SC no.30/10 Page 14/25 establish this incriminating circumstance.
18. The next incriminating circumstance pressed by the prosecution is that rickshaw which was with the deceased on the date of incident i.e 05.11.2009 was found with the accused when he was apprehended on 16.11.2009. Material prosecution witness on this point is PW2. It is matter of fact and which did not come in controversy or dispute that a visiting card bearing title "V. K. Cycle" was recovered from the person of deceased after the incident and Police contacted the person on that mobile phone and he happened to be PW2.
19. PW-2 deposed that he was having rickshaws and used to have business by the name of V. K. Cycles wherein he used to hire rickshaw to rickshaw pullers. He further deposed that he had got all his rickshaws printed his business style "V. K. Cycles". Witness deposed that date or month he did not recall in the year 2009 when he received a phone call from the police and he reached GTB hospital and there he saw Rehman, deceased of this case, a dead person. He deposed that Rehman was plying his rickshaw for last 12 to 13 months and was residing in Sonia Vihar, Delhi. He further deposed that Rehman used to take rickshaw at 9am and would return rickshaw by around 6 to 7 pm. He further deposed that he then saw his rickshaw in police station Khajuri Khas and he identified rickshaw as had been hired and taken away by Rehman.
20. Witness did not specified as to on what date he happened to see his SC no.30/10 Page 15/25 rickshaw in police station which Rehman had hired. Prosecution wanted to establish that rickshaw which Rehman was pulling on the date of incident had been recovered from the possession of accused when he was arrested on 16.11.2009. Witness ought to have been got to clarify as to when and how he happened to identify his rickshaw in the police station. Witness admitted in cross examination that he knew accused as he also used to come with deceased Rehman to his shop and he used to accompany Rehman while plying rkchshaw. Witness further deposed that Rehman had not brought back rickshaw which he hired on 05.11.2009. Witness did not search for his rickshaw and nor did he took any further action. Ld. counsel argued that if deceased used to be accompanied by accused to the shop of this witness and accused himself used to ply rickshaw then evidence of this witness nonspecific as to on that date and occasion he saw his rickshaw in the police station, prosecution cannot be held to have proved that accused was in possession of that very rickshaw when he was arrested. ld. counsel argued that if accused had committed this crime and was aware of the fact that deceased had hired rickshaw then accused would not keep that incriminating object with him and this entire police case is cooked up that on 16.11.2009, accused was found in possession of this rickshaw. On the other hand, ld. Addl. PP strongly argued that besides PW2 another material prosecution witness is PW19 i.e Parmod Kumar @ Monu with whom accused was employed temporarily just about 10-15 days prior to this incident and the SC no.30/10 Page 16/25 witness has specifically deposed that though accused also used to hire rickshaw to ply on a particular date then for sometime he had been keeping the rickshaw with him and when asked by this witness as to how accused had not returned rickshaw to its owner, accused replied that person from whom he had taken rickshaw on rent owed some money to accused and since money was not being returned, he had not returned the rickshaw. On this point ld. Addl. PP referred to evidence of PW19 and to quote it "one day he brought rickshaw to the house and then on inquiry from him as to why he had brought rickshaw to the house then he told me that a person from whom he had taken rickshaw on rent told me that he owed some money from the owner of the rickshaw and the rickshaw owner was unable to pay that money....., and thereafter he started parking rickshaw outside the house"
21. Again witness is absolutely unspecific as to how many days around this incident that accused had brought that rickshaw. This witness had accompanied police when accused was apprehended on 16.11.2009 while accused was pulling rickshaw and that rickshaw was seized. Witness has nowhere deposed if that rickshaw seized was bearing any print " V. K. Cycles". No evidence was collected as to wherefrom prior to the incident that accused used to hire rickshaw. PW2 when is found entirely unspecific as to on what date or occasion he identified his rickshaw in the police station, it is difficult to hold the fact duly established and proved that accused when apprehended on 16.11.2009, he was carrying rickshaw which deceased had SC no.30/10 Page 17/25 hired on 05.11.2009. Even otherwise it appears to be a reasonable argument of ld. defence counsel that accused would not keep any such incriminating object or article with him after committing murder of the deceased. Prosecution cannot be held to have proved this incriminating circumstance against accused.
22. Further two incriminating circumstances 3 and 4 can be taken up together. According to prosecution case accused when apprehended on 16.11.2009, he confessed his guilt before the Police in the presence of PW19 and took the police team to his residential room from where he got recovered a shirt and pant which he was wearing on the date of incident and those shirt and pant were found bearing blood stains and he further took out a county made pistol with two live cartridges and all this material was taken into police custody. Ld. defence counsel argued that this incriminating circumstance is as a result of planting by the Police. Ld. counsel submitted that if accused had committed murder he would not keep the weapon protected in his room. He would have thrown it away. Availability of weapon in the room of accused was contrary to usual normal human conduct. Ld. counsel further argued that blood stained wearing clothes also would have been washed by the accused and why accused would keep them in his room to be got recovered the Police. On the other hand ld. Addl. PP argued that recovery of these incriminating objects is deposed by the police officials and is fully supported by an independent public witness PW-19 and there was no SC no.30/10 Page 18/25 reason to disbelieve this witness. It is further submitted and argued that many empty cartridges recovered from the scene of the crime is a fact duly proved as deposed by other witnesses including crime team officials, who took photographs of the scene of the crime wherein empty cartridges have been shown lying on the spot. It is argued that these empty cartridges and the country made pistol which accused had got recovered have been got examined from FSL and specific report by ballistic expert is on the file that empty cartridges had been fired from the pistol F1. It is further argued that fired shot bullets recovered from the body of the deceased as per ballistic expert report have already been identified to have been fired from the pistol F1. This argument of the prosecution appears to be very attractive. If empty cartridges picked up from the scene of the crime, two live cartridges recovered alongwith country made pistol which accused got recovered from his room and the fired bullets recovered from the person of deceased have been found to have been fired from the pistol F1 by the ballistic expert then an inference could be drawn that firearm shot caused to deceased in this case were caused by the accused, who was in possession of pistol F1. Ballistic expert had test fired the two live cartridges recovered alongwith the pistol F1 from the accused and characteristics appearing on this fired cartridge when microscopically examined suggested similarity where from an inference could be drawn that empty cartridges and bullets recovered from the person of deceased had been fired from the same firearm. We have to examine this SC no.30/10 Page 19/25 aspect.
23. PW19 deposed that on 16.11.2009 police came to him by tracing this witness by his mobile phone no.9313693715. Witness deposed that he had provided this mobile to accused and that is how police came to know about the accused. In the presence of this witness police finally apprehended accused from Sarita Vihar. Accused confessed his guilt and admitted to have killed deceased by firing from a katta. Accused took the police party to his room which was situated in the house of this witness and accused opened a room, took out a polythene bag from a rack and that polythene bag contained a "katta" loaded with one live cartridge and one extra live cartridge lying in the polythene bag.
24. PW14 doctor from Department of Forensic Medicines, GTB hospital had conducted the post mortem on the body of the deceased. There were several gun shots injury on the body and cause of death was opined as haemorrhagic shock due to ante mortem injury to lung, liver and vessels produced by projectile of fire arm. One bullet stained with blood as taken out from the body was preserved. Doctor further stated that during undressing the pant from the person of the deceased, two bullets were recovered and those bullets were 3.1cm x 0.7cm and 3.5cm x 0.7cm. It is matter of fact that these two bullets recovered while undressing the pant of the deceased were given exhibit marks EB2 an EB3 whereas bullets recovered by the doctor from the body of the deceased was given exhibit EB4. Ballistic report Ex. PW18/A SC no.30/10 Page 20/25 specifically records that bullets EB1 and EB2 were fired from the fire arm country made pistol F1 but because of insufficiency of characteristic of striations present on the evidence bullet mark EB3 and EB4, it cannot be opined if those were discharged from the country made pistol F1. The report further observes that empty cartridges EC1 to EC6 which as per the prosecution case had been seized from the scene of the crime had been fired from the country made pistil F1. Question then arise can there be a possibility of a fire arm planted. This question gains importance as to how and why two bullets would be recovered from the person of deceased while undressing the pant. How and why these fired bullet would come in the clothes of the deceased it ought to have been explained by the prosecution. The bullet recovered from the pant of the deceased has been identified as fired from pistol F1. This all creates a serious doubt in the prosecution case and in these circumstances the defence arguments as to why accused would keep a fire arm preserved in his room after committing murder becomes important to examine.
25. Another incriminating evidence pressed by the prosecution is recovery of blood stained clothes of accused, which he was wearing at the time of incident and this recovery was effected pursuant to disclosure given by the accused soon after his arrest and accordingly that part of the disclosure/confession given to police is sought to be rendered admissible in terms of section 27 of the Evidence Act. When evidence is examined, it SC no.30/10 Page 21/25 appears quite difficult if really any such part of the disclosure/confession given by the accused before the police is to be considered admissible. PW19 a public witness, rather the witness in whose house accused was residing as a tenant, has deposed that he along with police party had set out for search of accused on 16.11.09. Witnesses saw accused pulling rickshaw in Madanpur Khadar area and he was apprehended. The witness states that accused admitted to have committed murder of deceased by firing from katta. Accused took police party in presence of this witness to his room and from that room he took out a polythene bag from a rack which contained katta and he took out another polythene bag which contained a shirt and jeans pant and there were blood stains on the pant. Witness has not deposed if prior to this recovery any such confession as is purported Ex.PW24/B of accused had been recorded. Accordingly, recovery of blood stained clothes of accused as per evidence of this witness is not sought to be pressed for getting that part of his confession/disclosure admissible under section 27 Evidence Act, which distinctly led to the recovery of those articles. Section 27 of the Evidence Act renders that part of confession made before police, which distinctly led to recovery of a fact and recovery of incriminating article and was deposed to in evidence.
26. PW24 and 25 have deposed that confession given by the accused was recorded and that has been proved as Ex.PW24/B. Both witnesses have deposed that after they had apprehended accused and interrogated him, SC no.30/10 Page 22/25 accused admitted his guilt and told the police party that he could get the weapon of offence and clothes, which he was wearing recovered from his room. Accused then led the police party to his room and got these recoveries effected. Witnesses deposed that confession given by police was then recorded, which they proved as Ex.PW24/B. It is nowhere clear if this confession had been recorded prior to the recoveries. If confession was recorded subsequent to recoveries were effected, then it is difficult to segregate any such part of confession which is to be considered admissible in terms of section 27 of the Evidence Act.
27. Even otherwise, if we examine this testimony of witness as regards recoveries, witnesses deposed that they reached the room and accused took out those polythene bags. It is none of their evidence, if room was found locked so as to establish its exclusive occupation by the accused. Witnesses have deposed that clothes were there in polythene bag when accused took out those clothes. It appears unnatural, if a person would keep such clothes bearing blood stains marks in a polythene bag. He would not use those clothes and would neither wash them. PW19 stated in evidence that there were blood stains on the pant and those clothes were seized by the police. This evidence is contrary to the prosecution case where according to prosecution charge, both clothes that is shirt and pant were bearing blood stains. PW24 and PW25 have deposed that both shirt and pant were bearing blood stain marks.
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28. This is a case where victim was assaulted by fire arm shots. It has not been brought in evidence as to from how much distance those fire arm shots could have been caused which could have been opined by an expert from Forensic Science Laboratory. If shots were fired from some distance, then how could clothes of accused would have blood stains of deceased, and accordingly it was essential for the prosecution to elicit as to how much and on what particular part of shirt and pant of accused those blood stains appeared. No such elicitation has been deposed or brought on record. No evidence was got deposed from PW19, if he had ever seen accused wearing that shirt and jeans pant and thereby to provide circumstances for the Court to infer that accused might be wearing those clothes at the time of this incident.
29. Accordingly, merely that PW19, an independent witness, has deposed on the point of recoveries, the prosecution case cannot be held acceptable on this incriminating circumstance. It was a logical argument by the defence counsel as to why accused would keep custody of these incriminating articles for eleven days to get them recovered. Accordingly, this incriminating circumstance also becomes weak to be asserted in finding the charge of murder against the accused.
30. Accordingly, the prosecution fails to prove its incriminating circumstance of motive, incriminating circumstance of recovery of rickshaw of deceased or weapon of offence or the blood stained clothes of accused. Prosecution cannot be held to have proved its charge beyond doubt against SC no.30/10 Page 24/25 the accused. Accused is entitled to benefit of doubt. He is acquitted of the charge. He be set at liberty, if not wanted in any other case. File be consigned to Record Room.
Announced in the open Court on (J. R. Aryan)
17.03.2012 District Judge & Addl. Sessions Judge,
I/C(NE Distt.), Karkardooma Courts,Delhi
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