Delhi District Court
State vs (1) Bhola Sharma, (2) Pawsan, (3)Baby on 7 August, 2010
IN THE COURT OF SHRI R.K.CHAUHAN: A S J/SPL JUDGE
(NDPS) (WEST) TIS HAZARI COURTS: DELHI
FIR no. 260/09
Unique Case ID no.02401R472522009
Police station Nangloi
U/s 302/201/120B IPC
State V/s (1) Bhola Sharma, (2) Pawsan, (3)Baby
1. Session Case no. : SC no. 3809
2. Name of the accused : (1)Bhola Sharma S/o Om
and parentage Prakash
(2)Baby D/o Bhola Sharma
(3)Pawan S/o Bhola Sharma
All R/o House no. 567, Agar
Nagar, Prem Nagar-III, Gali no.
4 Aman Vihar, Delhi.
3. Date of commission of : 6th - 7th July, 2009
offence
4. Arguments concluded : 26th July, 2010
on
5. Date of Judgment : 7th August, 2010
6. Date of final order : 7th August, 2010
JUDGMENT
1) According to the prosecution case deceased Sunil Kumar resident of Village Kanarsi PO Bilashpur, District Gautam Budh Nagar, U.P has left his home on 6/7/2009 on the pretext of some urgent work in Delhi by saying that he would return within 2-3days. He did not return and his family members tried to search for him but he was not traceable. On 6/7/2009 at about 7.30 PM his friend Punit FIR no. 260/09 Page no. 1/34 Goel made a telephonic call to him on 09457157288 from Gautam Budh Nagar and he told him that he was in Nangloi at the house of one of his girl friend; Mr. Goel again made a call to him at about 9.30 PM but his mobile was replying switched off. On 8/7/2009 vide DD no. 20A an information was recorded in Police Station Nangloi that one iron box was lying in abandoned condition near Ganga Dharam Kanta, Mundka. The police reached there and opened the box which was locked and a male dead body aged about 25-30 years was found in it; the hands and feet of the dead body were tied with a small rope. On search, from right side pocket of the pant of the dead body 4 currency notes of Rs. 500/- denomination were recovered. Case u/s 302/201IPC was registered in Police Station Nangloi. During investigation one Ramayan Singh, Metro Guard met Inspector Rajbir Singh Malik and informed him that on 8/7/2009 in the morning one rickshaw puller was carrying an iron box alongwith one passenger on his rickshaw and asked him the way leading to Shamshan Ghat and he accordingly told to him the way and that rickshaw puller went to Mundka. He has further stated that if the rickshaw puller is shown he can identify the said rickshaw puller. On 16/7/2009 Metro Guard Ramayan Singh was with Inspector Malik and pointed out that rickshaw puller who was coming from the Friends Enclave Mundka side road and immediately identified him as the said rickshaw puller who was seen by him on 8/7/2009 with an iron box being carried out on the rickshaw and had gone to Shamshan Ghat, Mundka. SHO Inspector R.S Malik enquired from that rickshaw puller who has made FIR no. 260/09 Page no. 2/34 disclosure statement by disclosing about the murder committed by accused persons on the night of 6/7/2009 at his residence. It is alleged that deceased used to harass his daughter Baby who was studying in school and therefore her father entered into a criminal conspiracy and in pursuant to that conspiracy he has asked Baby to call deceased at his resident. Accordingly by calling deceased at the residence of the accused persons and in pursuant to their criminal conspiracy they committed his murder and thereafter disposed of his dead body by putting in an iron box.
2) During investigation the police has got recovered at the instance of accused persons one pair of shoes of the deceased, blood stained clothes worn by the accused persons at the time of commission of offence. The pair of shoes of the deceased were got identified by his father who has identified the same in the TIP proceeding conducted before Ld Metropolitan Magistrate. At the instance of accused Pawan one blanket having blood stains of deceased was recovered which according to his disclosure statement was put by him on the Taand of his house. The weapon of offence i.e knife was got recovered at the instance of accused Bhola Sharma on 18/7/2009 from the bushes at Rani Khera road near Mundka Railway Phatak.
3) Accused Pawan and accused Baby were arrested on 17/7/2009 and at the instance of accused Pawan Kumar clothes i.e T-shirt, Blue jeans worn at the time of commission of offence having blood stains were recovered. He has also allegedly got recovered one blanket kept by him in his house which was used by FIR no. 260/09 Page no. 3/34 them at the time of alleged murder of the deceased and was found containing blood stains. At the instance of accused Baby clothes worn by her at the time of commission of offence having blood stains alongwith pair of shoes of brown colour were recovered from Ground floor room of their house stated to be shoes of deceased.
4) Till 22/7/2009 the dead body was not identified and was therefore cremated unclaimed. On 24/7/2009 Shri Satyabir Singh father of the deceased came to the police station alongwith Punit Goel friend of the deceased and identified the photograph of the dead body of the deceased as Sunil his son. After completion of investigation challan was filed.
5) On 12/4/2010, charge under section 302/201/120B IPC was framed against all the accused to which they pleaded not guilty and claimed trial.
6) In support of its case the prosecution has examined in total 17 witnesses.
7) The brief summary of the deposition of the prosecution witnesses is as under:-
OFFICIAL WITNESSES
8) PW1 W/HC Nirmala has deposed that on the night of 16th, 17th July, 2009 she accompanied SHO Inspector Rajbir Singh Malik. HC Balwan and Ct Dilwar in a government gypsy alongwith driver and the accused Bhola Sharma reached at house no. 567, Agar Nagar , Prem Nagar-III, gali no. 4 from where accused Pawan and Baby were arrested arrest memo Ex. PW1/A ; the accused Baby FIR no. 260/09 Page no. 4/34 made her disclosure statement which was recorded by the Investigating Officer Ex. PW1/C; on the pointing out of the accused persons Investigating Officer prepared the pointing out memo Ex.PW1/D regarding place of occurrence and their role; the accused Baby got recovered the shoes of the deceased Sunil which were lying under the bed which were seized by the Investigating Officer after converting into a cloth parcel and sealed with the seal of RSM vide memo Ex. PW1/E; the accused Baby also got recovered her clothes comprising of salwar and Kurta (suit) which she was wearing at the time of incident and the same were seized by the Investigating Officer vide seizure memo Ex. PW1/F. She has also identified the clothes of the accused Baby i.e the kurta Ex. P1 and salwar Ex.P2 and the pair of shoes of the deceased Ex. P3.
9) PW2 Ct. Rakesh who was working as photographer in the Crime Team of West District and he alongwith ASI Azad Singh, Incharge of Crime team has reached on the spot and on the instructions of the Incharge he had taken the photographs Ex.PW2/11 to Ex.PW2/20 and the negatives Ex.PW2/1 to Ex.PW2/10.
10) PW3 HC Bijender Singh while working as duty officer 8/7/2009 from 9.00 AM to 5.00 PM has received an information at about 9.50am from Gopal Punjabi Dhaba, Rohtak Road, near Ganga Dharmkanta, Mundka that behind the dhaba on the way one iron box was locked and lying unclaimed and accordingly he has recorded the DD no. 20 in the Rojnamacha and he has proved the true copy of the same as Ex. PW3/A. He has further deposed that on FIR no. 260/09 Page no. 5/34 that day has received a rukka at 12.55hours through HC Surender and recorded the FIR Ex. PW3/B. His endorsement on the rukka was Ex. PW3/C. He has also proved copy of DD no. 10A as Ex.PW9/C and copy of DD no. 14 as Ex.PW9/D. He has also proved the bandi of the FIR which was made vide DD no. 26A at about 1.30pm and sent the special messenger Ct. Jaidarath to serve the copy of the FIR to the senior officers . He has proved the copy of the same Ex. PW3/D.
11) PW6 SI Prem Dutt has deposed that on 8.7.2009 he was posted at Police Station Nangloi and was on emergency duty from 8.00 a.m to 8.00 p.m; on that day on receiving DD no. 20 A at 9.50a.m he alongwith Ct. Neeraj reached at Gopal Punjabi Dhaba on Rohtak Road near Ganga Dharmkanta and behind the Gopal dhaba on the way one iron box was found near the fields; the box was found two locks and it was found foul smelling; the length of the box was 3 feet and breadth was 2 feet and its height was 2 feet;
SHO alongwith other staff also reached there and in his presence the box was opened after breaking the lock of left side and after breaking the kunda (bolt) of the right side of the iron box; the crime team also reached at the spot; the box was found one male dead body aged about 25-30 years and its legs and arms were tied with rope and folded from its knees ; the head of the dead body was lying towards South side and having injury marks on its head and leg; the dead body was wearing jeans pant and white brown strips shirt and blue colour banayan make of Shiv Naresh; from the right side pocket of his pant four currency notes of denomination of Rs. 500/-
FIR no. 260/09 Page no. 6/34were recovered and on the right arm of the dead body the words "SKN" were engraved and the shape of heart from which one arrow was crossing was also engraved and the words "SA" were engraved in the shape of heart and the word 'Om' in Devnagri was engraved on the upper side of the right fist; One blanket of moov colour and one blanket of red colour and one bed sheet of red colour having strips and some newspapers were also lying under the dead body and the dead body was taken out from the trunk by the crime team and ropes were opened by the crime team. He further deposed that from the Jamatalashi of the deceased Rs.2000/-, one handkerchief were seized vide seizure memo Ex. PW6/A; the blood stained newspapers which were lying in an iron box were contained in a plastic polythene and converted into cloth parcel and was sealed with the seal of PDS were seized vide seizure memo Ex.PW6/B; the lock which was broken was also seized vide memo Ex. PW6/C after converting into a cloth parcel and sealed with the seal of PDS; the box was also seized vide seizure memo Ex.PW6/D; the ropes by which the hands and the legs in folding condition were tied were seized vide seizure memo Ex. PW6/E. He further deposed that the dead body was sent to Sanjay Gandhi mortuary on the directions of the SHO; he prepared the rukka on the DD no. 20A Ex.PW6/F and sent HC Surender to the Police Station for registration of the case; SHO prepared the site plan mark-B on my pointing out; the blankets of blue colour and red colour and bed sheet were seized by the SHO. He has also identified the case property from Ex. P4 to Ex.P7. He has also proved the handkerchief Ex. P13 and the currency notes Ex.
FIR no. 260/09 Page no. 7/34P14( collectively).
12) PW10 HC Balwan Singh is the witness of arrest of the accused Bhola Sharma on the pointing out by Ramayan Singh on 16/7/2009 at about 7.15pm. He has proved the arrest memo Ex.PW7/A, personal search Ex PW7/B disclosure statement Ex.PW10/A, pointing out memo Ex. PW10/B. He has also witnessed the arrest of other two accused persons. He further deposed that all the accused persons got recovered their clothes from the taand of their house stating that those clothes were worn by them at the time of incident. He has further deposed that accused Bhola Sharma had got recovered the shoes of the deceased and one blanket was got recovered from the taand of the house of the accused and same was seized vide seizure memo Ex. PW10/J. The blanket has been identified Ex. P16, ladies shirt and salwar from the taand of the house of the accused persons Ex. PW17 and P18. He has also identified the T-shirt Ex. P19, jeans pant Ex.P20 of the accused Pawan stating that same were recovered in his presence and shirt and pant of accused Bhola Sharma Ex. PW21 and Ex. PW22 has also identified by him stating that same were recovered in his presence. The pair of shoes of the deceased were identified as Ex P3.
13) In his cross-examination by Ld Amicus Curiae he has stated that after arrest of the accused Bhola Sharma he alongwith other police personnels went to his house on the night of 16th and 17th July, 2009 at about 12.00 'O' clock in the night but he did not remember the departure entry made by them; he did not remember FIR no. 260/09 Page no. 8/34 the house number of the accused Bhola Sharma; neighbours were not asked about the house of the accused Bhola Sharma; no neighbour was joined in the investigation at his house; in the house of the accused on the ground floor there are two rooms, one kitchen, toilet and bathroom; the first floor is similarly constructed and was given on rent. On the entry of the house there is a balcony having a room inside; there is a taand on the right side wall of the room; the three daughters and one son and wife of the accused Bhola Sharma were living at that time in the house including the room in question; each family member was free to visit each room in the house; many public persons from the neighbourhood had gathered at the house of the accused; he could not tell the name of the immediate neighbour of the accused; the house in front of house of accused was occupied by one Bihari but he could not tell his name; all the neighbours were present when the investigation was carrying out at the house of the accused; Investigating Officer has prepared the site plan of the place of the house of the accused from where all the articles including blankets, shoes and clothes were recovered; the site plan was prepared in the residence of the accused by the SHO while sitting inside the room (there is no rough site plan prepared by the SHO in the house of the accused). Ld Addl. PP for the State has pointed out the scaled site plan prepared by SI Mahesh Kumar as mark-X; the house of the accused was left at about 2.00 AM for going to the spot for pointing out the place of occurrence; the distance between the house of the accused and the spot was 2 ½ KM.
FIR no. 260/09 Page no. 9/3414) PW13 ASI Azad Singh was Incharge of Crime team, West District and deposed that on receiving the directions from District Control Room he had reached at the spot. He has proved the report Ex. PW13/A.
15) PW14 HC Ravinder Kumar has deposed that on 8.7.2009 he was working as MHC (M); on that day SI Prem Dutt handed over to him three sealed parcels and alongwith one iron box and jamatalashi of the deceased which were deposited by him in the malkhana vide entry in register no. 19 at serial no. 5170. he has proved the photocopy of entry no. 5170 is Ex. PW14/A. He further deposed that on 16.7. 2009 one cycle rickshaw of the accused Bhola Sharma was deposited by Inspector Rajbir Singh Malik alongwith jamatalashi of Bhola Sharma which were deposited by him in the malkhana vide entry at serial no. 5192, the photocopy of the same is Ex. PW14/B. On 17.7.2009 the personal search of accused Baby was deposited in the sealed parcel by Inspector Rajbir Singh alongwith the sealed parcel containing shoes, sealed parcels containing clothes of accused Bhola, Pawan Kumar and Baby alongwith the blood stained blanket in a sealed parcel sealed parcels which were deposited in the malkhana vide entry at serial number 5095 as Ex. PW14/C. On 18.7.2009 one sealed parcel was deposited by Inspector Rajbir Singh Malik and an entry in this regard was made in register no. 19 at serial no. 5198 and proved the photocopy of the same Ex. PW14/D. On 22.7.2009 Inspector Rajbir Singh Malik handed over to him two sealed parcels received from Mortuary alongwith the sample seal which were deposited in the FIR no. 260/09 Page no. 10/34 malkhana vide entry at serial number 5204 in register no. 19 and proved the photocopy of the same is Ex. PW14/E. On 30.7.2009 one sealed parcel was taken by Rajbir Singh Malik for getting opinion from the SGM hospital sealed with the seal of RSM and the same was deposited in the malkhana on the same day after getting opinion from the concerned doctor and it was sealed with the seal of SGM , Mortuary and an entry in this regard was made in register no. 19 in front of serial number 5198 Ex. PW14/F. On 13.8.2009 nine sealed parcels alongwith one sample seal were handed over to Ct. Pawan Kumar vide RC no. 118/21 for depositing at FSL, Rohini and an entry in this regard was made in front of entry no. 5170 which is Ex. PW14/G. On 2.3.2010, the result from the FSL, Rohini alongwith the remnants of the sealed parcels were received which was deposited in the malkhana and the result was handed over to the Investigating Officer, Inspector Rajbir Singh Malik as Ex. PW14/H. The jamatalashi of the deceased was released by the order of the Ld. Court to the father of the deceased as Ex. PW14/I. On 29.8.2009 the sealed parcels of shoes was sent for TIP through Inspector Rajbir Singh Malik which was sealed with the seal of RSM and it was received again after TIP proceeding and was sealed with the seal of AG as Ex. PW14/J. He has also proved the photocopy of RC no. 118 as Ex. PW14/K and the acknowledgment of case acceptance is Ex. PW14/ L.
16) PW17 Shri Ashu Garg, Ld Metropolitan Magistrate no.3, Central, Delhi has conducted the TIP proceedings on the application Ex. PW17/A moved by the Investigating Officer before FIR no. 260/09 Page no. 11/34 Shri Gaurav Rao, Ld Link MM. He has proved the TIP proceeding as Ex. PW17/B regarding the case property i.e pair of shoes Ex. P3.
17) PW16 Inspector Rajbir Singh Malik is the main Investigating Officer of the case who has deposed about the whole investigation carried out either by himself or under his supervision. He has deposed that blood stained newspapers in the iron box from where dead body of a male was recovered were seized vide memo Ex. PW6/B; the lock which was broken for opening the iron box was seized vide memo Ex. PW6/C; the box was seized vide memo Ex. PW6/D; the rope by which the hands and legs of the dead body were tied seized vide seizure memo Ex. PW6/E; the site plan prepared by him at the spot Ex. PW16/A. He further deposed that during investigation one Metro guard Ramayan Singh met them and disclosed that the big box was brought by one rickshaw puller and pulled by one another men and he was asked by them the way of Shamshan Ghat and rickshaw puller had taken the rickshaw to Mundka; on the identification of Ramanyan Singh the said rickshaw puller was apprehended on 16/7/2009 and his name was disclosed as Bhola Sharma; accused was arrested vide memo Ex. PW7/A and his personal search was conducted vide memo Ex. PW7/B and his disclosure statement Ex. PW10/A; accused pointed out the place of throwing the iron box Ex. PW10/B; the pointing out memo of the said place where iron box was left by accused Pawan Ex PW10/G; the place of committed murder of deceased Sunil Kumar was pointed out by all the accused persons vide memo Ex PW1/D. He further deposed that on the pointing out of accused Pawan Kumar FIR no. 260/09 Page no. 12/34 one blood stained blanket was got recovered from the taand of the house of the accused and the same was seized vide memo Ex.PW10/J; at that time HC Balwan Singh and Ct. Dilwar Singh had got recovered the one pair shoes of the deceased lying in the house of the accused persons at the instance of accused Baby and same were seized vide memo Ex. PW1/E. He further deposed that on 18/7/2009 accused Bhola Sharma got recovered the weapon of offence i.e knife from the bushes situated at Rani Khera Road, Friends Colony near railway phatak, Mundka and same was seized vide memo Ex. PW16/D and prepared the sketch of knife Ex.PW16/E; the site plan of the said recovery of knife was prepared Ex.PW16/F. He further deposed that he moved application for obtaining the opinion on the weapon of offence from the concerned doctor vide Ex. PW12/B and opinion of the doctor was Ex.PW12/C. He further deposed that the photograph of the dead body was got identified from his father vide Ex. PW9/B . He further deposed that on 25/8/2009 an application was moved for TIP of the shoes of the deceased which was identified by his father on 29/8/2009 vide TIP proceedings Ex. PW9/A. He further deposed that he got prepared the scaled site plan from SI Mahesh draftsman of Crime branch about the place of leaving of iron box Ex. PW16/K; the scaled site plan showing the place of murder of Sunil Kumar Ex.PW16/L (which is earlier mark-X); the scaled site plan showing the place of recovery of knife Ex. PW16/M. He has also proved the crime report Ex. PW13/A and FSL report Ex. PW16/N and Ex.PW16/O; Investigating Officer also identified the blanket Ex.P16 which was FIR no. 260/09 Page no. 13/34 recovered from the Taand, ladies shirt Ex. P17 and salwar Ex. P18 belonged to accused Baby; gents T-shirt Ex. P19, Jeans pant Ex.P20 of the accused Pawan. The clothes got recovered by accused Bhola Sharma i.e Shirt Ex. P21 and track pant Ex. P22; pair of shoes of the deceased Ex. P3. The iron box having one lock of right side bolted partially attached to it Ex. P4. The newspapers kept in envelope Ex. P5, ropes Ex. P6, one lock Ex. P7. The handkerchief Ex. P13 and the currency notes Ex. P14; the knife Ex. P23 and the cycle rickshaw Ex. P24.
MEDICAL WITNESSES
18) PW12 Dr. Manoj Dhingra, MO I/C Mortuary has deposed that he alongwith Dr. Deepak Sharma, Senior Resident has conducted the postmortem on the dead body of Sunil Kumar on 22/07/2009 brought by Inspector Rajbir Malik, SHO Police Station Nangloi with the alleged history of body found in an iron box at Laghu Udyog Nagar. On examination he found following injuries on the body:-
"External injuries:
1. body and face swellon blue discolouration present all over the skin pealing off at places maggot present over body
2. insize wounds 13X 3 cm X muscles deep present over right side of neck, 6cm below right ear , 4cm below tip of chin , 12cm below and anterior left ear maggots coming out of the wounds.
Internal injuries:-
1. head: defusion of blood present over frontal region on FIR no. 260/09 Page no. 14/34 reflecting the scalp Opinion:
Death is due to asphyxia consequent upon injury no.2. Injury no.2 is by a sharp weapon and enough to cause death in ordinary course of nature and the time since death was about 2weeks. My detailed postmortem report is Ex. PW12/A which bears my signature at point- A and the signature of Dr. Deepak at point- B."
This witness has given opinion regarding the weapon of offence when he was requested to do so by the Investigating Officer on the application Ex. PW12/B he has received the single edged knife sealed with the seal of RSM and after opening the seal sketch of the knife was prepared. After examining the weapon of offence in co relation to the injuries mentioned in the postmortem report he had given the opinion that this weapon or similar such weapon were possible with the knife sent to him for examination. His opinion in that regard is Ex. PW12/C. He has also identified the knife Ex. P23 stating that it was the same which was produced before him for giving opinion.
19) PW15 Dr. Deepak Sharma, Senior Resident has also accompanied Dr. Manoj Dhingra (PW12) for conducted the postmortem of deceased on 22/7/2009.
PUBLIC WITNESSES
20) PW4 Rajbala is the sister of the accused Bhola Ram. As per prosecution case accused has confessed his guilt before her FIR no. 260/09 Page no. 15/34 when she came to meet him in the Police Station. PW4 however did not support the prosecution case in that regard stating that she did not have any conversation with him because police did not let her speak him and accused Bhola had not disclosed anything to her at any point of time. In reply to a court question she has stated that she has no speaking terms with her brother Bhola Ram and his family for the last 17-18 years.
21) In her cross-examination by Ld Addl. PP for the State she has stated that she told to the police that the trunk Ex. P4 belonged to her brother Bhola Ram. She has identified the trunk shown to her stating that same was identified by her in the Police Station as the said trunk belonged to her Bhabi i.e wife of accused Bhola Sharma as the same was brought by her at the time of her marriage.
22) In her cross-examination by Ld Amicus Curiae for accused she has stated that she had not visited the house of the accused Bhola Ram for the last about 17-18 years; Bhola Ram was married 2-3 years after her marriage and she had attended the marriage from her Sasural. She further stated in her cross-examination that she seen the trunk Ex P4 at the house of accused Bhola Ram for the last about 20 years after he got separated.
23) PW7 Ramayan Singh working as Guard at Paschim Vihar Metro, according to the prosecution he had seen the rickshaw puller with box in it has also turned hostile because he could not identify the said rickshaw puller because thousands of rickshaw pullers comes and goes. He further stated that he did not know whether there was any passenger or articles in the rickshaw. In his cross-FIR no. 260/09 Page no. 16/34
examination by Ld Addl. PP for the State nothing was elicited in his deposition which may support the prosecution case.
24) PW5 Ramgopal is the owner of the dhaba near the place of recovery of the dead body in trunk. He has stated that he had noticed one locked iron box lying at a distance of about 100-125feet from his dhaba; he informed the police and public persons also collected there; the box was opened after breaking open the kunda and lock by the police and same was found containing dead body of an unidentified male. He however did not identify the box when shown to him stating that he could not say whether the box shown to him in the court was the same box which was recovered from the spot and the dead body was found in the same.
25) In his cross-examination by Amicus Curiae Ms. Kirandeep Kaur he has stated that he was running the dhaba on rent and its owner was one Vijender of Mundka. He further stated that he was paying rent of Rs. 50/- per day and did not have any rent receipts.
26) PW8 Sanjay is the tenant of the accused Bhola Sharma was also declared hostile as he did not support the prosecution case. Nothing was elicited in his cross-examination by Ld Addl. PP for the State so as to support the prosecution case.
27) PW9 Satyavir Singh Nagar is the father of the deceased Sunil Kumar and deposed that on 6/7/2009 his son had gone to Delhi by saying that due to some necessary work at about 12.00 Noon time and come back within two or three days; his son did not come back to the house and he tried to trace him; at that time Sunil Kumar was 28 years and six months old, 5fit 8'' in height and was FIR no. 260/09 Page no. 17/34 wearing blue colour jeans and brown colour with strips shirt, blue colour baniyan, white socks brown shoes; the words SKN were engraved on the right arm of my son and the words SA were engraved on the forearm of my son; S means Sunil Kumar and the word "A" means initial of his wife as Anita and the word "Om" engraved on his fist; his son had tied a black colour thread on his right hand. He further deposed that during the search of his son from his friends, one Punit informed him that he had received a telephone from his son in the morning of 6/7/2009 and he told him that he reached at Prem Nagar -III and Punit further told them that when he again tried to contact the mobile of Sunil his phone was found switched off; his son was carrying Rs. 20000/-in cash, one purse of raxin of black colour and also having one wrist watch. He has further deposed that he alongwith Punit reached at Police Station Nangloi there photograph of his son Sunil shown to him and he identified him. He further deposed that on 29/8/2009 he identified the shoes Ex. P3 of his son Sunil Kumar before the court of Ld MM vide proceedings Ex. PW9/A and his statement was recorded by the Investigating Officer Ex. PW9/B; He has also identified the photograph Ex. PW9/C of his son. He has also identified the clothes of the deceased i.e shirt Ex. P8, baniyan Ex.P9, jeans pant Ex.P10, one pair of socks Ex. P11, underwear Ex.P12.
28) PW11 Vikram is the owner of the rickshaw which according to the prosecution case was used by the accused for throwing the dead body at the spot. This witness did not support the FIR no. 260/09 Page no. 18/34 prosecution case. In his examination-in-chief during the court question he has stated that accused Bhola Sharma took the rickshaw on 7/7/2009 at about 8.30am and returned the same before 9.00pm.
29) In his cross-examination by Ld Addl. PP for the State he was confronted with his statement Ex. PW11/PA where it was recorded that accused did not return the rickshaw on the night of 7/7/2009.
30) In their statement under section 313 CrPC accused persons stated that they are falsely implicated and are innocent.
31) Ld Amicus Curiae Ms. Kirandeep Kaur advocate for all the accused persons has argued that the case of the prosecution is not proved because of the following reasons:-
(a) Public witness PW7 Ramayan Singh at whose instance accused Bhola Sharma was arrested has turned hostile and did not support he prosecution case,
(b) PW4 Rajbala is the sister of the accused Bhola Sharma and the deposition of this witness is not reliable because admittedly she is not having visiting terms with the accused for the last about 17-18 years and their relations were inimical and she has deposed that she came to the Police Station to get her another brother released who was made to sit in the Police Station alongwith accused Bhola Sharma.
(c) Extra judicial confession as being relied by the prosecution allegedly made by the accused Bhola Sharma to PW4 Rajbala in the Police Station is not proved because PW4 has categorically stated that accused has not made any such statement to her in the FIR no. 260/09 Page no. 19/34 Police Station or at any time.
(d) The iron box Ex. P4 could not be linked because the only witness PW4 Rajbala who has identified the iron box as belonging to accused Bhola Sharma which according to her was brought in the marriage by the wife of accused Bhola Sharma.
The deposition of PW4 is not reliable because of the inimical relation with the accused and she has also admitted that she has not seen the said trunk in the house of the accused for the last 17/18 years.
(e) No public witnesses/neighbourers were joined at the time of alleged recovery of pair of shoes Ex. P3 of the deceased and blood stained clothes of accused persons from their house. Further, the said recovery is not admissible in evidence because admittedly all the family members were having access to the taand in the room from where these alleged articles were recovered and it can not be said that these articles were recovered from the exclusive possession of each accused.
(f) Recovery of the knife at the instance of accused is not admissible under section 27 of the Indian Evidence Act because no public witness was joined at the time of alleged recovery and same was not recovered from the exclusive possession of the accused.
(g) The prosecution has failed to link the cycle rickshaw Ex.P24 to the accused Bhola Sharma because owner of the cycle rickshaw PW11 Vikram has categorically stated that accused has taken the the rickshaw in the morning and returned the same on FIR no. 260/09 Page no. 20/34 the night of 7/7/2009 by 9.00pm whereas prosecution has alleged that rickshaw was used by him in the night of 7th and 8th July, 2009 for transporting the dead body from his house to the place at Mundka.
(h) Lastly, case of the prosecution is based on circumstantial evidence and prosecution has miserably failed to complete the chain of the circumstance and as such the case of the prosecution is not proved at all.
Hence Ld Amicus Curiae has argued that accused persons were entitled to acquittal.
32) Ld Addl. PP for the State on the other hand submitted that prosecution has established in evidence that all the accused persons in prosecution of their criminal conspiracy committed murder of deceased Sunil Kumar at their house with a motive to teach him lesson because deceased used to tease the daughter of the accused Bhola Sharma. Ld Addl. PP for the State further argued that blood stained clothes were recovered from the house of the accused persons and shoes of the deceased were got recovered from their house; weapon of offence knife Ex. P23 was got recovered by accused Bhola Sharma and same has been linked to the murder of the deceased Sunil Kumar by the opinion of the doctor vide Ex.PW12/C.
33) Ld Addl PP for the State further argued that prosecution has succeeded in establishing all the circumstances and case of the prosecution has been proved beyond reasonable doubt and therefore FIR no. 260/09 Page no. 21/34 prayed that all the accused persons be convicted for the offence u/s 302/120-B IPC.
34) I have considered the rival submissions made at bar and gone through the evidence on record. The case of the prosecution is solely based on the circumstantial evidence and prosecution has tried to establish its case by proving the following circumstance in evidence:-
(a) Identification of the recovered dead body to be of the deceased Sunil Kumar on the basis of identification of his pair of shoes Ex. P3 by his father PW9 Satyavir Singh and also identification of the shirt Ex. P8, one baniyan Ex. P9, jeans pant Ex. P10, one pair of socks Ex. P11, underwear Ex. P12 as belonged to his son which he was wearing at the time when he left his house on 6/7/2009 for going to Delhi.
(b) In the intervening night on 7th and 8th July, 2009 accused Bhola Sharma was seen by Metro station guard Ramayan Singh in the early morning of 8/7/2009 while going on rickshaw with iron trunk in it and rickshaw was pushed by another person and he was asked the way of Shamshan Ghat at about 7.00am in the morning.
(c) Hiring of cycle rickshaw by accused Bhola Sharma from its owner PW11 Vikram on 7/7/2009 and he has not returned the same during the night.
(d) On 16/7/2009 arrest of the accused Bhola Sharma on the identification of Ramayan Singh PW7 as the person who had asked the way of Shamshan Ghat while going in cycle rickshaw FIR no. 260/09 Page no. 22/34 with iron trunk on it in the early morning on 8/7/2009 at about 7.00am.
(e) Extra judicial confession made by accused Bhola Sharma to his sister PW4 Rajbala in the Police Station when she came to meet him and accused stated to have admitted his guilt before her.
(f) Identification of trunk Ex. P4 which belonged to wife of accused Bhola Sharma by PW4 stating that the same was brought by wife of accused Bhola Sharma at the time of her marriage.
(g) Recovery of the weapon of offence knife Ex. P23 at the instance of accused Bhola Sharma on 18/7/2009 in pursuance to his disclosure statement Ex. PW10/A made on 16/7/2009.
(h) Opinion of doctor Manoj Dhingra PW12 regarding weapon of offence vide Ex. PW12/C about possibility of use of this weapon for the purpose of causing injury to the deceased for which he died.
(i) Recovery of the blood stained blanket Ex.P16 from the "taand" of the room of the house of the accused at the instance of accused Pawan; recovery of the pair of shoes Ex. P3 belonged to the deceased at the instance of accused Baby from beneath the bed in the room.
(j) Recovery of the blood stained clothes of accused Baby i.e ladies shirt Ex. P17 and salwar Ex. P18 from the taand of the room in the house of the accused; recovery of the blood stained clothes of accused Pawan i.e gents T-shirt Ex. P19, Jeans pant FIR no. 260/09 Page no. 23/34 Ex.P20 from the taand in the room in the house of the accused; recovery of the clothes of accused Bhola Shirt Ex. P21 and track pant Ex. P22 from the taand in the room in the house of the accused;
(k) As per postmortem report injury no. 2 was caused by sharp weapon and was sufficient to cause death in ordinary course of nature and the time since death was about two weeks from the date i.e 22/7/2009 the date of postmortem.
(l) FSL report Ex. PW16/N and Ex.PW16/O in order to prove the blood stains on the recovered clothes of the accused person which were allegedly worn at the time of commission of offence.
35) It is the bounden duty of the prosecution to establish its case beyond all reasonable doubts. In Vikramjit Singh Vs. State of Punjab, 2006 X AD (SC) 441, it was held that it is well settled principle of law that suspicion, however, grave may be , cannot be a substitute to proof, the same would lead to be only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubts.
36) What is required by the prosecution to prove its case on the basis of circumstantial evidence has been recently analysed in Bantu Vs. State of U.P, 2009 I AD (Criminal) (SC) 175. The Hon'ble Apex court was pleased to hold as under
10. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and FIR no. 260/09 Page no. 24/34 must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also.
The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
11. 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 FIR no. 260/09 Page no. 25/34 those circumstances. In Bhagat Ram Vs. State of 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.
12. 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
innocence........"
18. A reference may be made to a later
decision in Sharad Birdhichand Sarda
Vs State of Maharasthra, (AIR 1984 SC
1622). Therein, while dealing with
circumstantial evidence, it has been held
that onus was on the prosecution to
FIR no. 260/09 Page no. 26/34
prove that the chain is complete and the
infirmity of lacuna 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 compete 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
FIR no. 260/09 Page no. 27/34
the act must have been done
by the accused.
37) Thus, in order to prove its case the prosecution is required
to establish that the circumstances concerned must or should have been established; the circumstances should be of a conclusive nature and tendency, excluding every hypothesis except the one that proves the guilt of the accused; the chain of circumstantial evidence must be 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 offence must have been committed by the accused.
38) I have closely scrutinized the evidence and the material on record to find out whether the prosecution has succeeded in fulfilling the above requirement and has established its case beyond reasonable doubts.
39) It was argued by the Ld Amicus Curiae on behalf of accused persons that none of the circumstance in evidence has been established by the prosecution beyond reasonable doubt because all the material witnesses of the prosecution has turned hostile; and prosecution has failed to establish that the accused Bhola Sharma was ever seen by PW7 Ramayan Singh while riding cycle rickshaw with iron box on it in the morning on 8/7/2009 near Mundka Metro Station and he had asked the way of Mundka cremation ground from him. PW7 has totally turned hostile in that regard and stated that he was called by the police in the Police Station and his signatures were obtained on some papers which was signed by him without FIR no. 260/09 Page no. 28/34 knowing the contents of the same. In his cross-examination by Ld Addl. PP for the State nothing was elicited so as to support the prosecution case.
40) Even PW8 Sanjay tenant of the accused has also turned hostile and in his cross-examination by Ld Addl. PP for the State he has replied that he has not stated to the police that on the night of 6th 7th July, 2009 at about 11.00pm he had seen accused Bhola Sharma closing the door by saying that saale tu meri ladki ko tang karega teri assi tesi kar donga. He has further stated that he has not heard any conversation from inside of the room of Baby and Pawan children of accused Bhola Sharma or that his neighbour Lal Bahadur Sharma had also come in the back side of the house and had heard the voice of Bhola Sharma. The prosecution has even failed to establish that cycle rickshaw Ex. P24 was in possession of accused Bhola Sharma during the night of 7/7/2009 or in the morning 8/7/2009 because PW11 Vikram Singh from whom he has allegedly hired the same has categorically stated that rickshaw was hired by him in the morning of 7/7/2009 and the same was returned by him in the night by 9.00pm. This witness has also did not support the prosecution case. Nothing was elicited in his cross-examination by Ld Addl. PP for the State so as to support the prosecution case.
41) Regarding the identification of the iron box Ex. P4 by Rajbala PW4 sister of the accused, I find force in the arguments of Ld Amicus Curiae wherein she has argued that her testimony in that regard was not reliable because of her inimical relation with accused as she was not having any visiting terms with his brother Bhola FIR no. 260/09 Page no. 29/34 Sharma for the last about 17/18 years. It is further stated by this witness in her cross-examination that she has not seen the said trunk/iron box in the house of the accused for the last about 17/18 years. Moreover, no judicial TIP of the said trunk Ex. P4 was got conducted from this witness during investigation and she has seen the same for the first time in the court. There is no explanation in that regard by the prosecution when it is admitted by herself that she was not having any visiting terms with accused Bhola Sharma for the last 17-18 years. There is every possibility in the given circumstances that she has deposed at the instance of police wherein she has identified the trunk Ex. P4 as belonging to her Bhabhi wife of accused Bhola Sharma. Prosecution has also not established this circumstance beyond reasonable doubt.
42) Regarding the recovery of blood stained clothes of the accused persons from the "taand" in the room of their house and pair of shoes of the deceased at the instance of the accused Baby from beneath the bed in the said room, I am convinced with the arguments of Ld. Amicus Curiae that the said fact has not been established beyond reasonable doubt. It is so because SHO Inspector Rajbir Singh Malik PW16 stated that he has prepared the site plan at the time of recovery of these articles but no such rough site plan was placed on record as only a scaled site plan prepared from SI Mahesh draftsman has been placed on record. Further, it is admitted case of the prosecution that public persons had collected on the spot at the time of investigation at the house of the accused when these alleged recovery were made but no such neighbour was ever joined the FIR no. 260/09 Page no. 30/34 investigation when the said recovery was effected from the house of the accused persons. Moreover, it is admitted that all the family members were having access to the room/place in the house from where these articles were recovered and it cannot be said that the recovered articles were in the exclusive possession/ knowledge of the each accused at whose instance same has been recovered. All these recovered clothes of the accused persons were sent to FSL but on none of the clothes the blood of the deceased has been detected.
For these reasons recovery of the clothes of the accused person and the blood stains on them has not been established beyond reasonable doubt.
43) Regarding the recovery of the weapon of offence knife Ex.P23. I have noticed a glaring discrepancy in the prosecution case that the said knife has been recovered on the disclosure statement of the accused Bhola Sharma Ex. PW10/A wherein it is stated that after throwing the dead body in the box and while returning in the rickshaw he had thrown the watch, purse/wallet of the deceased alongwith weapon of offence knife in the bushes and he could got the same recovered. In the recovery memo of knife Ex. PW16/D, it is stated that on the night of 7th and 8th July, 2009 when he was taking the dead body in the iron box in his rickshaw and while going he has thrown the purse/wallet, watch and knife in the bushes. Thus these contents of recovery memo are contradictory to the disclosure statement of accused wherein he has stated that these articles were thrown in the bushes while returning after throwing the dead body in the iron box. Moreover, the disclosure statement regarding FIR no. 260/09 Page no. 31/34 throwing of the knife was made on 16/7/2009 and knife was got recovered at the instance of accused on 18/7/2009. There is no explanation as to why Investigating Officer took two days time in taking the accused to the place where he had thrown these articles including weapon of offence. In these given circumstance there is every possibility that after the gap of two days the knife could be thrown at the place which was allegedly disclosed by the accused two days earlier.
44) I have also gone through the opinion of the doctor Manoj Kumar PW12 regarding this weapon of offence and in his deposition he has stated that he has prepared the sketch of knife and opinion that injury scribed in the postmortem report could be produced by this weapon or similar such weapon. This deposition of PW12 does not definitely establish that the weapon of offence Ex.23 was the same weapon which had been used for causing injury no.2 which has caused the death of the deceased.
45) With regard to the charge of conspiracy under section 120-B IPC against all the accused person, there is no sufficient evidence brought on record to establish this conspiracy and nothing is brought on record to establish that deceased used to tease the daughter of accused Bhola Sharma as a result he was called and eliminated by him. It is settled law that if case is based on circumstantial evidence, if prosecution raises the questions of motive, it is duty of the prosecution to establish the said motive by sufficient evidence. In this case prosecution has miserably failed to establish even the motive of the commission of the offence by the accused persons.
FIR no. 260/09 Page no. 32/34The disclosure statement of the accused cannot be read in evidence to establish the conspiracy between them because the said disclosure statements are hit by section 25 of the Indian Evidence Act. Further, a post-arrest statement made to a police officer, whether it is confession or otherwise touching the involvement of the accused in conspiracy would not fell within the ambit of section 10 of the Indian Evidence Act. A reliance can be placed in State of Gujrat Vs. Mohd Atik and Other, JT 1998 (3) SC 60 wherein it was held that section 10 of the Indian Evidence Act provides that where there is reasonable grounds to believe that two or more person had conspired together to commit an offence "any thing said, done or written by anyone of such person in reference to the common intention" is a relevant fact that it is well neigh settled that section 10 of the Indian Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made " in reference to their common intention". In other words, a post-arrest statement made to a police officer, whether it is a confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Indian Evidence Act.
46) On analysing the evidence on record and the arguments made at bar, I am of the considered opinion that the prosecution has not brought on record sufficient evidence to establish the meeting of FIR no. 260/09 Page no. 33/34 minds of the accused persons resulting into ultimate decision taken by them as per conspirators regarding committing the murder of deceased Sunil Kumar .
47) From the above discussion, I am of the considered opinion that prosecution has not been able to fully prove the circumstances in evidence and those circumstances are not established to be conclusive and the chain of evidence attending these circumstances is not complete. It is not proved beyond reasonable doubts that those circumstances are so consistent with the hypothesis of the guilt of the accused persons and totally inconsistent with their innocence. The prosecution has thus failed to prove its case against the accused persons beyond reasonable doubt. Accused persons are accordingly acquitted of the charges framed against them. They are in Judicial custody, be released immediately if not wanted in any other case.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 7th August, 2010 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE(NDPS) (WEST)DELHI FIR no. 260/09 Page no. 34/34